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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
FOR POST-JUNE 30, 1998 UNITS
Dated as of 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
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
FOR POST-JUNE 30, 1998 UNITS
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT FOR POST-JUNE 30, 1998 UNITS
(this "Agreement") is made and entered into as of December 31, 1996, by and
among WEEKS CORPORATION, a Georgia corporation (the "Company"), XXXXXX X.
XXXXXXX, an individual resident of North Carolina, XXXX X. XXXXXXX, an
individual resident of North Carolina, XXXXX X. XXXXXXXXX, an individual
resident of Texas, XXX X. XXXXXX, an individual resident of Texas, XXXXXX X.
XXXXXXXXX, an individual resident of Texas, and PERIMETER PARK WEST ASSOCIATES
LIMITED PARTNERSHIP, a North Carolina limited partnership (Xxxxxx X. Xxxxxxx,
Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx, Xxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxx, and
Perimeter Park West Associates Limited Partnership are collectively referred to
hereafter as the "Lichtin Holders").
WHEREAS, this Agreement is made pursuant to (i) the Contribution Agreement
for the Northern Telecom Properties by and between Weeks and the Contributors
(as therein defined) dated as of even date herewith, and (ii) the Contribution
Agreement for the Perimeter Park West, Metro Center and Perimeter Park Land by
and between Weeks and the Contributors (as therein defined) dated as of even
date herewith (collectively, the documents referred to in clauses (i) and (ii)
are hereafter referred to as the "Contribution Agreements");
WHEREAS, the Lichtin Holders will become the owner of Units (as defined
below) in Weeks Realty, L.P., a Georgia limited partnership (the "Operating
Partnership"), in connection with the transactions described in the Contribution
Agreements;
WHEREAS, in order to induce Weeks to enter into the transactions described
in the Contribution Agreements, each of the Lichtin Holders has agreed to the
Lichtin Holders Lock-up (as defined below) set forth in Section 2(a) hereof; and
WHEREAS, in order to induce the Lichtin Holders to enter into the
transactions described in the Contribution Agreements, the Company has agreed,
with respect to the Units issued after June 30, 1998, to provide the Lichtin
Holders with the registration rights set forth in Section 3 hereof;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Common Stock" shall mean the Common Stock, par value $.01 per share, of
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the Company.
"Company" shall have the meaning set forth in the Preamble and also shall
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include the Company's successors.
"Contribution Agreements" shall have the meaning set forth in the Preamble.
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"Control" shall mean the ability, whether by the direct or indirect
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ownership of shares or other equity interests, by contract or otherwise, to
select a majority of the directors of a corporation, to select the managing
partner of a partnership, to select the manager of a limited liability company
or otherwise to select, or have the power to remove and then select, a majority
of those persons exercising governing authority over an Entity. In the case of
a limited partnership, the sole general partner, each of the general partners
that has equal management control and authority, or the designated managing
general partner or managing general partners thereof shall be deemed to have
control of such partnership. In the case of a trust, any trustee thereof or any
Person having the right to select any such trustee shall be deemed to have
control of such trust.
"Entity" shall mean any general partnership, limited partnership,
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corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Lichtin Holders" shall have the meaning set forth in the Preamble.
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Lichtin Holder shall mean each Lichtin Holder.
"Lichtin Holders Lock-up" shall have the meaning set forth in Section 2(a)
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hereof.
"Lichtin Holders Lock-up Period" shall have the meaning set forth in
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Section 2(a) hereof.
"Maximum Number" shall mean with respect to an underwritten public
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offering, the maximum number of securities which in the opinion of the managing
underwriters can be included in such offering without adversely affecting the
marketability of the offering.
"Operating Partnership" shall have the meaning set forth in the Preamble
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and also shall include the Operating Partnership's successors and assigns.
"Partnership Agreement" shall mean the Second Amended and Restated
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Agreement of Limited Partnership of the Operating Partnership, as amended.
"Permitted Private Transfer" shall mean the transfer of Units or Shares
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pursuant to a private placement permitted under Section 4(2) of the Securities
Act, or regulations promulgated thereunder, or a transfer which complies with
Rule 144 promulgated under the Securities Act.
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"Person" shall mean any individual or Entity.
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"Piggyback Registration" shall have the meaning set forth in Section 3
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hereof.
"Piggyback Registration Request" shall have the meaning set forth in
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Section 3 hereof.
"Piggyback Registrable Securities" shall mean the Shares held by Lichtin
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Holders (and the Shares issuable upon conversion of the Units) excluding (i)
Shares that have been disposed of under any other effective registration
statement, (ii) Shares sold or otherwise transferred pursuant to Rule 144 under
the Securities Act, and (iii) Shares held by Lichtin Holders if all of such
Shares 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.
"Piggyback Registration Expenses" shall mean any and all expenses incurred
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by the Company in connection with Piggyback Registrations, including, without
limitation: (i) all SEC, stock exchange and National Association of Securities
Dealers, Inc. ("NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection with
qualification of any of the Piggyback Registrable Securities under any state
securities or blue sky laws and the preparation of a blue sky memorandum) and
compliance with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
the 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
Piggyback Registrable Securities on any securities exchange or exchanges
pursuant to Section 5(i) hereof, (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 audits or "cold comfort" letters required by or
incident to such performance and compliance, and (vi) all other costs and
expenses normally associated with the issuance and sale of newly issued public
securities other than "Selling Expenses."
"Prospectus" shall mean the prospectus included in the Registration
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Statement, including any preliminary prospectus, and any amendment or supplement
thereto, including any supplement relating to the terms of the offering of any
portion of the Piggyback Registrable Securities covered by the Registration
Statement, and in each case including all material incorporated by reference
therein.
"Registration Statement" shall mean a registration statement prepared and
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filed with the SEC.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
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"Selling Expenses" shall mean all underwriting discounts and selling
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commissions and transfer taxes applicable to the sale of Piggyback Registrable
Securities and disbursements of underwriters.
"Shares" shall mean any Common Stock issued to Lichtin Holders upon
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redemption of those Units which were issued to Lichtin Holders after June 30,
1998.
"Units" shall mean the limited partnership interests of the Operating
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Partnership issued to Lichtin Holders after June 30, 1998, which interests are
redeemable for Common Stock, or at the Operating Partnership's option, cash.
2. Lock-Up Agreement
(a) Lock-Up Period for the Lichtin Holders. Each of the Lichtin Holders
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hereby agrees that, except as set forth in Section 2(b) below, (i) with respect
to all Units issued after June 30, 1998 (except for those Units described in
clause (ii) below), from June 30, 1998 until the later of (x) one year after the
issuance of the last Units issued to the Lichtin Holders which the Lichtin
Holders become entitled to receive with respect to the acquisition by the
Operating Partnership of the Development Properties or the Northern Telecom
Properties (as described in the applicable Contribution Agreement) or (y) the
third anniversary of the date hereof, without the prior written consent of the
Company, such Lichtin Holder will not offer, sell, contract to sell, distribute
or otherwise dispose of (collectively, "Dispose of"), directly or indirectly, to
any Person any such Units (or Shares which are exchanged for such Units) and
(ii) with respect to the Units issued after June 30, 1998 in connection the
Contribution Agreement for the Perimeter Park West, Metro Center and Perimeter
Park Land, from the date of the closing of any such contribution until the later
of (x) one year following the date of such closing or (y) the expiration of the
last lock-up period described in clause (i) above, without the prior written
consent of the Company, such Lichtin Holder will not Dispose of directly or
indirectly, to any Person any such Units (or Shares which are exchanged for such
Units) (collectively, the lock-ups described in clauses (i) and (ii) are
referred to as the "Lichtin Holders Lock-up" and the lock-up periods described
in clauses (i) and (ii) are referred to as the "Lichtin Holders Lock-up Period")
(b) Exceptions. The following transfers of Shares or Units shall not be
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subject to the Lichtin Holders Lock-up set forth in Section 2(a):
(i) subject to applicable restrictions contained in the Partnership
Agreement, a Lichtin Holder may Dispose of Shares or Units pursuant to a
pledge, grant of security interest or other encumbrance effected in a bona
fide transaction with an unrelated and unaffiliated pledgee;
(ii) subject to applicable exchange restrictions contained in the
Partnership Agreement, a Lichtin Holder may exchange its Units for shares
of Common Stock; and
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(iii) subject to applicable restrictions contained in the Partnership
Agreement, a Lichtin Holder may Dispose of its Units or Shares pursuant to
a Permitted Private Transfer;
provided, however, that in the case of any transfer of Shares or Units
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pursuant to clauses (i) and (iii), the transferee or transferees shall
each be an "accredited investor" within the meaning of Rule 501(a) of
Regulation D under the Securities Act.
In the event a Lichtin Holder Disposes of Shares or Units pursuant to this
Section 2(b), (i) such Shares or Units shall remain subject to this Agreement
and, as a condition of the validity of such disposition, the transferee (and any
pledgee who acquires Shares or Units upon foreclosure or any transferee thereof)
shall be required to execute and deliver a counterpart of this Agreement; and
(ii) if the transferee is an entity in which the transferring Lichtin Holder
owns an interest, then the interest of such Lichtin Holder in such transferee
shall be subject to the Lichtin Holders Lock-up. Thereafter, such transferee
shall be deemed to be a Lichtin Holder for purposes of this Agreement.
3. Piggyback Registrations for the Benefit of the Lichtin Holders.
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(a) Right to Piggyback. With respect to any Units issued to Lichtin
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Holders subsequent to June 30, 1998 (or Shares which are exchanged for such
Units), if the Company at any time proposes to register any of its Common Stock
or other securities under the Securities Act for sale to the public, whether for
its own account or for the account of other shareholders or both (except with
respect to registration statements on Form S-8 or another form not available for
registering the Piggyback Registrable Securities for sale to the public) (a
"Piggyback Registration"), the Company will promptly (but in any event within 30
days) give written notice to the Lichtin Holders of its intention to effect such
registration and a description of any underwriting agreement to be entered into
with respect thereto and will include in such registration all Piggyback
Registrable Securities with respect to which the Company has received written
requests for inclusion within 15 days after the receipt of the Company's notice
(a "Piggyback Registration Request"); provided, however, that the Company shall
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not be required to include Piggyback Registrable Securities in the securities to
be registered pursuant to a registration statement on any form which limits the
amount 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 Piggyback Registration shall
be, in whole or in part, an underwritten public offering of Common Stock, any
Piggyback Registration Request by the Lichtin Holders shall specify that either
(i) such Piggyback 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 Piggyback
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.
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(b) Priority on Primary Registrations. If a Piggyback Registration is an
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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)
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) Piggyback Registrable Securities covered by Piggyback Registration Requests,
(b) securities covered by piggyback registration requests pursuant to the
Registration Rights and Lock-Up Agreement dated as of the date hereof 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, other securities requested to be
included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
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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 Piggyback Registrable Securities covered by
Piggyback 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,
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however, that if the holders requesting registration are doing so pursuant to
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demand registration rights of such holders, such holders' shares shall take
priority over any Piggyback Registrable Securities and any other securities
requested to be included, which shall be included on a pro rata basis.
4. Holdback Agreements.
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(a) Lichtin Holders of Piggyback Registrable Securities. Each Lichtin
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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 Lichtin 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 Piggyback Registration in
which Piggyback Registrable Securities are included (except as part of such
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underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) Company Officers and Directors. The Company agrees (i) not to effect
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any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
7 days prior to (provided that the Company receives notice of the commencement
of such 7-day period) and the 90-day period beginning on the effective date of
any underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree,
and (ii) to use its commercially reasonable efforts to cause each of the
Company's officers and directors who hold Common Stock or any securities
convertible into or exercisable for Common Stock, to agree not to effect any
public sale or distribution (including sales pursuant to Rule 144) of any such
securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
5. Piggyback Registration Procedures. If and whenever the Company is
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required to use its reasonable efforts to effect the registration of any of its
securities under the Securities Act, the Company shall use its reasonable and
diligent efforts to effect the registration and sale of the Piggyback
Registrable Securities in accordance with the intended method of disposition
thereof; provided, however, that the Company will not be under any obligation to
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ensure the registration of such Piggyback Registrable Securities is consummated
if the Registration Statement pursuant to which the Piggyback Registrable
Securities are being registered is canceled or withdrawn on behalf of the
Company or those persons requesting such registration. In connection with the
foregoing, the Company will, as expeditiously as possible:
(a) prior to the filing of the Registration Statement, furnish to the
selling Lichtin Holders copies of the Registration Statement and any
amendments or supplements thereto and any prospectus forming a part
thereof, which documents shall be subject to the approval of such Lichtin
Holders only with respect to any statement in the Registration Statement
which relates to such Lichtin Holders;
(b) notify the selling Lichtin Holders promptly and confirm in
writing, (i) when the Registration Statement and any post-effective
amendments thereto have become effective, (ii) when any amendment or
supplement to the Prospectus has been filed with the SEC, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Registration Statement or any part
thereof or the initiation of any proceedings for that purpose, (iv) if the
Company receives any notification with respect to the suspension of the
qualification of the Piggyback Registrable Securities for offer or sale in
any jurisdiction or the initiation of any proceeding for such purpose, and
(v) of the happening of any event during the period the Registration
Statement is effective as a result of which (A) such Registration
Statement contains any untrue statement of a material fact or omits to
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state any material fact required to be stated therein or necessary to make
the statements therein not misleading or (B) the Prospectus as then
amended or supplemented contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(c) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement or any part
thereof as promptly as possible;
(d) after the Lichtin Holders have delivered a Piggyback Registration
Request to the Company, furnish to each selling Lichtin Holder, without
charge, at least one conformed copy of the Registration Statement and any
post-effective amendment thereto (without documents incorporated therein
by reference or exhibits thereto, unless requested);
(e) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective for the period specified in paragraph (a) above and to comply
with the provisions of the Securities Act with respect to the disposition
of all Piggyback Registrable Securities covered by such Registration
Statement in accordance with each Lichtin Holder's intended method of
disposition set forth in such Registration Statement for such period;
(f) furnish to each selling Lichtin Holder and to each underwriter
such number of copies of the Registration Statement and the Prospectus
included therein (including each preliminary prospectus) and such other
documents, as such persons may reasonably request in order to facilitate
the public sale or other disposition of the Piggyback Registrable
Securities covered by such Registration Statement;
(g) use its reasonable and diligent efforts to register or qualify the
Piggyback Registrable Securities covered by such Registration Statement
under the securities or blue sky laws of such jurisdictions as the Lichtin
Holders or, in the case of an underwritten public offering, the managing
underwriter, shall reasonably request;
(h) provide a transfer agent and registrar, which may be a single
entity, for all Piggyback Registrable Securities not later than the
effective date of the Registration Statement;
(i) use its reasonable and diligent efforts to cause all Piggyback
Registrable Securities to be listed on any securities exchange on which
similar securities issued by the Company are then listed;
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(j) if the offering is underwritten, to furnish, at the request of the
Lichtin Holders, on the date that Piggyback Registrable Securities are
delivered to the underwriters for sale pursuant to such registration: (i)
an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters, stating that
such Registration Statement has become effective under the Securities Act
and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under
the Securities Act, (B) the Registration Statement, the related
Prospectus, and each amendment or supplement thereto, comply as to form in
all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the SEC thereunder and that such
counsel does not believe that any such Registration Statement, Prospectus,
amendment or supplement contains a misstatement of a material fact or an
omission to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading (except that such
counsel need express no opinion as to financial statements or financial or
statistical data contained therein) and (C) to such other effects as may
reasonably be requested by counsel for the underwriters or by the Lichtin
Holders or their counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of
such letter) with respect to the registration in respect of which such
letter is being given as such underwriters may reasonably request;
(k) after the Lichtin Holders have provided a Piggyback Registration
Request to the Company, make available for inspection by each Lichtin
Holder and any counsel, accountants or other representatives retained by
such Lichtin Holder all financial and other records, pertinent corporate
documents and properties of the Company and cause the officers, directors
and employees of the Company to supply all such records, documents or
information reasonably requested by such Lichtin Holder, counsel,
accountants or representatives in connection with the Registration
Statement; provided, however, that such records, documents or information
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which the Company determines in good faith to be confidential and notifies
such Lichtin Holder, counsel, accountants or representatives in writing
that such records, documents or information are confidential shall not be
disclosed by Lichtin Holders, counsel, accountants or representatives
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, documents or information become generally available to
the public other than through a breach of this Agreement; and
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(l) cooperate with each selling Lichtin Holder to facilitate the
timely preparation and delivery of certificates representing Piggyback
Registrable Securities to be sold and not bearing any Securities Act
legend; and enable certificates for such Piggyback Registrable Securities
to be issued for such numbers of shares as each Lichtin Holder may
reasonably request at least two business days prior to any sale of
Piggyback Registrable Securities.
For purposes of paragraph (e) of this Section 5, the period of
distribution of Piggyback Registrable Securities in a firm commitment
underwritten public offering shall be deemed to be that period during which the
underwriters in such offering require in an underwriting agreement in the form
customarily used by such underwriters for comparable transactions that the
Company keep a registration statement effective to permit each underwriter to
complete the distribution of all securities purchased by it, and the period of
distribution of Piggyback Registrable Securities in any other registration shall
be deemed to extend until the earlier of the sale of all Piggyback Registrable
Securities covered thereby or nine months after the effective date thereof.
In connection with each registration hereunder, each selling Lichtin
Holder will furnish to the Company in writing such information with respect to
itself and the proposed distribution by its members as shall be reasonably
necessary in order to assure compliance with federal and applicable state
securities laws. Reasonable compliance with the obligation to furnish such
information shall be a condition to the rights afforded each Lichtin Holder
hereunder. In addition, each selling Lichtin Holder and any of its beneficial
owners, officers, directors or affiliates, if any, (i) will comply with the
provisions of Rule 10b-6 and 10b-7 under the Exchange Act as applicable to them
in connection with sales of Piggyback Registrable Securities pursuant to the
Registration Statement; (ii) will comply with the prospectus delivery
requirements of the Securities Act as applicable to them in connection with
sales of Piggyback Registrable Securities pursuant to the Registration
Statement; and (iii) will enter into such written agreements as the Company
shall reasonably request to ensure compliance therewith.
In connection with each registration pursuant to Section 3 hereof covering
an underwritten public offering, the Company agrees to enter into a written
agreement with the managing underwriter selected in the manner herein provided
in such form and containing such provisions as are customary in the securities
business for such an arrangement between major underwriters and companies of the
Company's size and investment stature; provided that such agreement shall not
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contain any such provision applicable to the Company which is inconsistent with
the provisions hereof; provided, further that the time and place of the closing
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under said agreement shall be as mutually agreed upon between the Company and
such managing underwriter.
6. Piggyback Registration Expenses. In connection with any Piggyback
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Registration, the Company shall pay all Piggyback Registration Expenses and the
selling Lichtin Holders shall pay all Selling Expenses applicable to the shares
sold by such Lichtin Holders.
7. Indemnification; Contribution.
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(a) Indemnification by the Company. The Company agrees to indemnify and
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hold harmless each Lichtin Holder and the beneficial owners, officers and
directors and each Person, if any, who controls each Lichtin Holder within the
meaning of Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to which each Lichtin Holder, or any beneficial
owner, officer, director or controlling Person may become subject under the
Securities Act or otherwise (A) that arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereto, or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (B)
that arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or any amendment
or supplement thereto, or the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or alleged untrue
statement or any omission or alleged omission, if such settlement is
effected with the written consent of the Company; and
(iii) subject to the limitations set forth in Section 7(c), against
any and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or not a party, or any claim whatsoever based upon any such untrue
statement or alleged untrue statement or omission or alleged omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that the indemnity provided pursuant to this Section 7(a)
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shall not apply with respect to any loss, liability, claim, damage or expense
that arise out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by any Lichtin
Holder (i) expressly for use in the Registration Statement or any amendment
thereto, or the Prospectus or any amendment or supplement thereto or (ii)
pursuant to any representation, warranty or other statement contained in any of
the Contribution Agreements or any admission amendment to the Partnership
Agreement.
(b) Indemnification by the Lichtin Holders. Each Lichtin Holder severally
--------------------------------------
agrees to indemnify and hold harmless the Company, and each of its respective
directors and officers (including each director and officer of the Company who
signed the Registration Statement), and each Person, if any, who controls the
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Company within the meaning of Section 15 of the Securities Act, to the same
extent as the indemnity contained in Section 7(a) hereof, but only insofar as
such loss, liability, claim, damage or expense arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement or any amendment thereto, or the Prospectus
or any amendment or supplement thereto, or any of the Contribution Agreements,
in reliance upon and in conformity with written information furnished to the
Company by such Lichtin Holder expressly for use therein. In no event, however
shall the liability of a Lichtin Holder exceed the cumulative net proceeds
received by such Lichtin Holder from any offering made in connection with a
Registration Statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party shall
--------------------------------------
give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 7(a) or (b) above, unless and to the extent it did not otherwise
learn of such action and the lack of notice by the indemnified party materially
prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided under Section 7(a) or
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, jointly with any
other indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by such
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the defendants in any
-------- -------
such action or proceeding include both the indemnified party and the
indemnifying party and the indemnified party reasonably determines, upon advice
of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to separate counsel (which shall be limited to a single
law form), the reasonable fees and expenses of which shall be paid by the
indemnifying party. If the indemnifying party does not assume the defense of
any such action or proceeding, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party will pay the
reasonable fees and expenses of counsel (which shall be limited to a single law
firm) for the indemnified party. In such event, however, the indemnifying party
will be liable for any settlement effected without the written consent of such
indemnifying party. If the indemnifying party assumes the defense of any such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding, except
as set forth in the proviso in the second sentence of this Section 7(c).
(d) Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in this Section 7
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Company and the selling Lichtin Holders shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
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contemplated by such indemnity agreement incurred by the Company and the selling
Lichtin Holders, in such proportion as is appropriate to reflect the relative
fault of and benefits to the Company on the one hand and the selling Lichtin
Holders on the other (in such proportion that the selling Lichtin Holders are
severally, not jointly, responsible for the balance), in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits to the indemnifying party and indemnified parties shall
be determined by reference to, among other things, the total proceeds received
by the indemnified party and indemnified parties in connection with the offering
to which such losses, claims, damages, liabilities or expenses relate. The
relative fault of the indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether the action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or the indemnified parties, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), a Lichtin Holder shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Piggyback Registrable Securities of such Lichtin Holder were
offered to the public exceeds the amount of any damages which such Lichtin
Holder would otherwise have been required to pay by reason of such untrue
statement or omission.
Notwithstanding the foregoing, 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. For purposes of this Section 7(d), each Person,
if any, who controls any Lichtin Holder within the meaning of Section 15 of the
Securities Act and beneficial owners, directors and officers of any Lichtin
Holder shall have the same rights to contribution as any member of the Lichtin
Holders, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Company.
(e) In the event any sale pursuant to a Piggyback Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter of Piggyback Registerable Securities to the same extent and on
substantially similar terms as the Company's indemnification of the members of
the Lichtin Holders as set forth in Section 7(a) above.
8. Rule 144 Sales.
--------------
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(a) Compliance. The Company covenants that, so long as it is subject to
----------
the reporting requirements of the Exchange Act, it will file the reports
required to be filed by it under the Exchange Act so as to enable Lichtin
Holders to sell Piggyback Registrable Securities pursuant to Rule 144 under the
Securities Act.
(b) Cooperation with the Lichtin Holders. In connection with any sale,
------------------------------------
transfer or other disposition by a Lichtin Holder of any Piggyback Registrable
Securities pursuant to Rule 144 under the Securities Act, the Company shall
cooperate with such Lichtin Holder to facilitate the timely preparation and
delivery of certificates representing Piggyback Registrable Securities to be
sold and not bearing any Securities Act legend, and enable certificates for such
Piggyback Registrable Securities to be for such number of shares as such Lichtin
Holder may reasonably request at least two business days prior to any sale of
Piggyback Registrable Securities.
9. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified, supplemented or
waived, nor may consent to departures therefrom be given, without the written
consent of the Company and the Lichtin Holders.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery,
(i) if to the Lichtin Holders, at each of the addresses on the attached
signature pages or (ii) if to the Company, at 0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
00000, Attention: A. R. Weeks, Jr.
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; when
answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors, assigns and transferees of each of the
parties. If any successor, assignee or transferee of any Lichtin Holder shall
acquire Piggyback Registrable Securities, in any manner, whether by operation of
law or otherwise, such Piggyback Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Piggyback
Registrable Securities such Person shall be entitled to receive the benefits
hereof and shall be conclusively deemed to have agreed to be bound by all of the
terms and provisions hereof.
(d) Third Party Beneficiaries. There shall be no third party beneficiaries
-------------------------
or intended beneficiaries of this Agreement
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(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 giving effect to the
conflicts of law provisions thereof.
(h) Specific Performance. The parties hereto acknowledge that there would
--------------------
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
(i) Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
-15-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above
WEEKS CORPORATION
By:
---------------------------------------
Name:
Title:
XXXXXX X. XXXXXXX
--------------------------------------------
Address: 0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
XXXX X. XXXXXXX
--------------------------------------------
Address: 0000 xxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
XXXXX X. XXXXXXXXX
--------------------------------------------
Address: c/o First Rock, Inc.
1525 The 000 Xxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000
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XXX X. XXXXXX
--------------------------------------------
Address: c/o First Rock, Inc.
0000 Xxx 000 Xxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000
XXXXXX X. XXXXXXXXX
----------------------------------------------
Address: c/o First Rock, Inc.
0000 Xxx 000 Xxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000
PERIMETER PARK WEST ASSOCIATES
LIMITED PARTNERSHIP, a North Carolina
limited partnership
By:
-------------------------------------------
Xxxxxx X. Xxxxxxx, General Partner
By:
-------------------------------------------
Xxxxx Xxxxxxxxxx Xxxxxxxxx, General Partner
Address: 0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
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