EXHIBIT 10.2
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of January 14, 1999
by and among
WEEKS CORPORATION
and
PARAGON LEGACY ASSOCIATES, LTD.
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is made
and entered into as of January 14, 1999 by and among WEEKS CORPORATION, a
Georgia corporation (the "Company"), and PARAGON LEGACY ASSOCIATES, LTD., a
Texas limited partnership (the "Holder").
WHEREAS, this Agreement is made pursuant to the Contribution Agreement by
and between Weeks Realty, L.P., a Georgia limited partnership (the "Operating
Partnership") and Holder dated as of December 17, 1998 (the "Acquisition
Agreement").
WHEREAS, the Holder will become the owner of Units (as defined below) in
the Operating Partnership in connection with the transactions described in the
Acquisition Agreement;
WHEREAS, in order to induce the Company and the Operating Partnership to
enter into the transactions described in the Acquisition Agreement, the Holder
has agreed to the Holder Lock-up (as defined below) set forth in Section 2
hereof; and
WHEREAS, in order to induce the Holder to enter into the transactions
described in the Acquisition Agreement, the Company has agreed, with respect to
the Units issued pursuant to the Acquisition Agreement to provide the Holder
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:
"Acquisition Agreement" shall have the meaning set forth in the Preamble.
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"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.
"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.
"Dispose of" shall have the meaning set forth in Section 2 hereof.
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"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.
"Holder" shall have the meaning set forth in the Preamble.
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"Holder Lock-up" shall have the meaning set forth in Section 2 hereof.
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"Holder Lock-up Period" shall have the meaning set forth in Section 2
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hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"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.
"Person" shall mean any individual or Entity.
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"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.
"Selling Expenses" shall mean all underwriting discounts and selling
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commissions and transfer taxes applicable to the sale of Shelf Registrable
Securities and disbursements of underwriters.
"Shares" shall mean any Common Stock issued or issuable to the Holder upon
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the redemption of Units.
"Shelf Prospectus" shall mean the prospectus included in the Shelf
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Registration 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 Shelf Registrable Securities covered by the Shelf
Registration Statement, and in each case including all material incorporated by
reference therein.
"Shelf Registration" shall mean a registration required to be effected
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pursuant to Section 3 hereof.
"Shelf Registrable Securities" shall mean the Shares held by the Holder,
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excluding (i) Shares that have been registered 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 the Holder 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.
"Shelf Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange and 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 Shelf 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 Shelf Registration Statement, any Shelf 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 Shelf Registrable Securities on any securities
exchange or exchanges pursuant to Section 4(l) 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.
"Shelf Registration Notice" shall have the meaning set forth in Section
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4(b) hereof.
"Shelf Registration Statement" shall mean a registration statement of the
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Company (and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act) that
covers all of the Shelf Registrable Securities to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments (including post-
effective amendments) to such registration statement, and all exhibits thereto
and materials incorporated by reference therein.
"Units" shall mean the limited partnership interests of the Operating
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Partnership issued to the Holder pursuant to the Acquisition Agreement, which
interests are redeemable for Common Stock, or at the Operating Partnership's
option, cash.
2. Lock-Up Agreement.
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(a) Lock-up for Holder. The Holder hereby agrees that with respect to all
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Units issued pursuant to the Acquisition Agreement from the date of issuance of
each Unit until the first anniversary of the date of each such issuance, without
the prior written consent of the Company, Holder will not offer, sell, contract
to sell, distribute, redeem, convert or otherwise dispose of (collectively,
"Dispose of"), directly or indirectly, to any Person any such Units
(collectively, the lock-ups are referred to as the "Holder Lock-up" and the
lock-up periods are referred to as the "Holder Lock-up Period").
(b) Lock-up of the Beneficial Interest Held by each of Xxxxxxx X. Xxxxxx
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and Xxxxx X. Xxxxxx in the Holders. Each of Xxxxxxx X. Xxxxxx and Xxxxx X.
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Xxxxxx hereby agrees that until the first anniversary of the last issuance of
Units to the Holder under the Transaction Documents which are subject to the
lock-up contained in Section 2(a) hereof, without the prior written consent of
the Company, such individual will not Dispose of, directly or indirectly, any
beneficial ownership interest that such individual holds in the Holders, except
that the foregoing restriction will not be applicable to Xxxxxxx X. Xxxxxx in
the event of his death or to Xxxxx X. Xxxxxx in the event of his death.
3. Shelf Registration Under the Securities Act for the Benefit of the
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Holder.
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(a) Filing of Shelf Registration Statement. Following the expiration of
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the Holder Lock-up Period, the Company shall cause to be filed during the third
quarter of each calendar year, or as soon as practicable thereafter, a Shelf
Registration Statement providing for the sale by the Holder of all Shelf
Registrable Securities, not theretofore registered, in accordance with the terms
hereof and will use its reasonable and diligent efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practicable thereafter. The Company agrees to use its reasonable and diligent
efforts to keep the Shelf Registration Statement with respect to the Shelf
Registrable Securities continuously effective so long as the Holder holds such
Shelf Registrable Securities. Subject to Section 4(b) and Section 4(i), the
Company further agrees to amend the Shelf Registration Statement if and 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 any rules and regulations thereunder; provided,
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however, that the Company shall not be deemed to have used its reasonable and
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diligent efforts to keep the Shelf Registration Statement effective during the
applicable period if it voluntarily takes any action that would result in the
Holder not being able to sell Shelf Registrable Securities covered thereby
during that period, unless such action is required under applicable law or the
Company has filed a post-effective amendment (other than one which removes Shelf
Registrable Securities from effective registration under the Securities Act) to
the Shelf Registration Statement and the SEC has not declared it effective or
except as otherwise permitted by the last three sentences of Section 4(b).
(b) Expenses. The Company shall pay all Shelf Registration Expenses in
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connection with each registration pursuant to Section 3(a). Holder shall pay
all Selling Expenses and the fees and disbursements of counsel representing the
Holder, if any, relating to the sale or disposition of such Shelf Registrable
Securities pursuant to the Shelf Registration Statement.
(c) Inclusion in Shelf Registration Statement. If Holder does not
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provide the information reasonably requested by the Company in connection with
the Shelf Registration Statement as promptly as practicable after receipt of
such request, but in no event later than ten (10) days thereafter, it shall not
be entitled to have its Shelf Registrable Securities included in the Shelf
Registration Statement.
4. Shelf Registration Procedures.
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In connection with the obligations of the Company with respect to each
Shelf Registration Statement contemplated by Section 3 hereof, the Company
shall:
(a) prepare and file with the SEC, within the time period set forth in
Section 3 hereof, the Shelf Registration Statement, which Shelf
Registration Statement (i) shall be available for the sale of the Shelf
Registrable Securities in accordance with the intended method or methods of
distribution by the Holder covered thereby and (ii) shall comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith;
(b) subject to the last three sentences of this Section 4(b) and
Section 4(i) hereof, (i) prepare and file with the SEC such amendments to
such Shelf Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the applicable period; (ii) cause the
Shelf 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 Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
Holder covered thereby. Notwithstanding anything to the contrary
contained herein, the Company shall not be required to take any of the
actions described in clauses (i), (ii) or (iii) in this Section 4(b),
Section 4(d) or Section 4(i) with respect to the Shelf Registrable
Securities (x) to the extent that the Company is in possession of material
non-public information that it deems advisable not to disclose or is
engaged in active negotiations or planning for a merger or acquisition or
disposition transaction and it delivers written notice to the Holder to
the effect that the Holder may not make offers or sales under the Shelf
Registration Statement for a period not to exceed ninety (90) days from
the date of such notice; provided, however, that the Company may deliver
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only two such notices within any twelve-month period, and (y) unless and
until the Company has received a written notice (a "Shelf Registration
Notice") from the Holder that it intends to make offers or sales under the
Shelf Registration Statement as specified in such Shelf Registration
Notice; provided, however, that the Company shall have ten (10) business
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days to prepare and file any such amendment or supplement after receipt of
the Shelf Registration Notice. Once the Holder has delivered a Shelf
Registration Notice to the Company, the Holder shall promptly provide to
the Company such information as the Company reasonably requests in order
to identify the method of distribution in a post-effective amendment to
the Shelf Registration Statement or a supplement to the Shelf Prospectus.
The Holder also shall notify the Company in writing upon completion of
such offer or sale or at such time as the Holder no longer intends to make
offers or sales under the Shelf Registration Statement;
(c) after the Holder has delivered a Shelf Registration Notice to the
Company, furnish the Holder, without charge, as many copies of each Shelf
Prospectus and any amendment or supplement thereto in order to facilitate
the public sale or other disposition of the Shelf Registrable Securities;
the Company consents to the use of the Shelf Prospectus and any amendment
or supplement thereto by the Holder of Shelf Registrable Securities in
connection with the offering and sale of the Shelf Registrable Securities
covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify
the Shelf Registrable Securities by the time the Shelf Registration
Statement is declared effective by the SEC under all applicable state
securities or blue sky laws of such jurisdictions in the United States and
its territories and possessions as the Holder shall reasonably request in
writing, keep each such registration or qualification effective during the
period such Shelf Registration Statement is required to be kept effective
or during the period offers or sales are being made by the Holder after
they have delivered a Shelf Registration Notice to the Company, whichever
is shorter; provided, however, that in connection therewith, the Company
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shall not be required to (i) qualify as a foreign corporation to do
business or to register as a broker or dealer in any such jurisdiction
where it would not otherwise be required to qualify or register but for
this Section 4(d), (ii) subject itself to taxation in any such
jurisdiction where is not otherwise subject to taxation, or (iii) file a
general consent to service of process in any such jurisdiction;
(e) notify the Holder promptly and confirm in writing, (i) when the
Shelf Registration Statement and any post-effective amendments thereto
have become effective, (ii) when any amendment or supplement to the Shelf
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 Shelf 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 Shelf 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 Shelf Registration
Statement is effective as a result of which (A) such Shelf Registration
Statement contains any 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 not misleading or (B) the Shelf 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;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement or
any part thereof as promptly as possible;
(g) after the Holder has delivered a Shelf Registration Notice to the
Company, furnish to the Holder, without charge, at least one conformed
copy of the Shelf Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) cooperate with the selling Holder to facilitate the timely
preparation and delivery of certificates representing Shelf Registrable
Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Shelf Registrable Securities to be issued for
such numbers of shares as the Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon
the occurrence of
any event contemplated by clause (x) of Section 4(b) or clause (v) of
Section 4(e) hereof, use its reasonable and diligent efforts promptly to
prepare and file an amendment or a supplement to the Shelf Prospectus or
any document incorporated therein by reference or prepare, file and obtain
effectiveness of a post-effective amendment to the Shelf Registration
Statement, or file any other required document, in any such case to the
extent necessary so that, as thereafter delivered to the purchasers of the
Shelf Registrable Securities, such Shelf Prospectus as then amended or
supplemented will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading;
(j) after the Holder has provided a Shelf Registration Notice to the
Company, make available for inspection by the Holder covered thereby and
any counsel, accountants or other representatives retained by the 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 the Holder, counsel, accountants or
representatives in connection with the Shelf Registration Statement;
provided, however, that such records, documents or information which the
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Company determines in good faith to be confidential and notifies the
Holder, counsel, accountants or representatives in writing that such
records, documents or information are confidential shall not be disclosed
by the Holder, 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;
(k) a reasonable time prior to the filing of any Shelf Registration
Statement or any amendment thereto, or any Shelf Prospectus or any
amendment or supplement thereto, provide copies of such document (not
including any documents incorporated by reference therein unless
requested) to the Holder covered thereby after the Holder has provided a
Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf
Registrable Securities to be listed on any securities exchange on which
similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not
later than the effective date of a Shelf Registration Statement; and
(n) use its reasonable efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder or any similar rule as may be
adopted by the SEC.
The Company may require the Holder to furnish to the Company in writing
such information regarding the proposed distribution by the Holder as the
Company may from time to time reasonably
request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 3 hereof and
this Section 4, the Holder covenants and agrees that (i) it will not offer or
sell any Shelf Registrable Securities under the Shelf Registration Statement
until it has provided a Shelf Registration Notice pursuant to Section 4(b) and
has received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by Section 4(c) and notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 4(e); (ii) upon receipt of any notice from
the Company contemplated by Section 4(b) or Section 4(e) (in respect of the
occurrence of an event contemplated by clause (v) of Section 4(e)), the Holder
shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf
Registration Statement until the Holder receives copies of the supplemented or
amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice
that any post-effective amendment has become effective, and, if so directed by
the Company, the Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
the Holder's possession, of the Shelf Prospectus as amended or supplemented at
the time of receipt of such notice; (iii) all offers and sales by the Holder
under the Shelf Registration Statement shall be completed within sixty (60) days
after the first date on which offers or sales can be made pursuant to clause (i)
above, and upon expiration of such sixty (60) day period, the Holder will not
offer or sell any Shelf Registrable Securities under the Shelf Registration
Statement until it has again complied with the provisions of clause (i) above;
(iv) the Holder and any of its beneficial owners, officers, directors or
affiliates, if any, will comply with the provisions of Regulation M promulgated
by the SEC as applicable to them in connection with sales of Shelf Registrable
Securities pursuant to the Shelf Registration Statement; (v) the Holder and any
of its beneficial owners, officers, directors or affiliates, if any, will comply
with the prospectus delivery requirements of the Securities Act as applicable to
them in connection with sales of Shelf Registrable Securities pursuant to the
Shelf Registration Statement; and (vi) the Holder and any of its beneficial
owners, officers, directors or affiliates, if any, will enter into such written
agreements as the Company shall reasonably request to ensure compliance with
clause (iv) and (v) above.
5. Holdback Agreements. The Holder agrees not to effect any public sale
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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 the 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.
6. Indemnification; Contribution.
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(a) Indemnification by the Company. The Company agrees to indemnify and
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hold harmless the Holder and the beneficial owners, officers and directors and
each Person, if any, who controls the 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 the 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 Shelf
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 Shelf 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 6(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 6(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 the Holder (i)
expressly for use in the Shelf Registration Statement or any amendment thereto,
or the Shelf Prospectus or any amendment or supplement thereto or (ii) pursuant
to any representation, warranty or other statement contained in the Acquisition
Agreement or any admission amendment to the Partnership Agreement.
(b) Indemnification by the Holder. The Holder agrees to indemnify and
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hold harmless the Company, and each of its respective directors and officers
(including each director and officer of the Company who signed the Shelf
Registration Statement), and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, to the same extent as
the indemnity contained in Section 6(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 Shelf Registration Statement or any amendment thereto, or the Shelf
Prospectus or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use therein. In no event, however shall the liability of a Holder
exceed the cumulative net proceeds received by the Holder from any offering made
in connection with a
Shelf Registration Statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party shall
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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 6(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 6(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
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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 firm), 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 not 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 6(c).
(d) Contribution. In order to provide for just and equitable contribution
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in circumstances in which the indemnity agreement provided for in this Section 6
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Company and the selling Holder shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the selling
Holder, in such proportion as is appropriate to reflect the relative fault of
and benefits to the Company on the one hand and the selling Holder on the other
(in such proportion that the selling Holder is 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 6(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 6(d), a Holder shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shelf Registrable Securities of such Holder were offered to
the public exceeds the amount of any damages which such 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 6(d), each Person,
if any, who controls the Holder within the meaning of Section 15 of the
Securities Act and beneficial owners, directors and officers of the Holder shall
have the same rights to contribution as any member of the Holder, and each
director of the Company, each officer of the Company who signed the Shelf
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 Shelf Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter of Shelf Registrable Securities to the same extent and on
substantially similar terms as the Company's indemnification of the members of
the Holder as set forth in Section 6(a) above.
7. Rule 144 Sales.
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(a) Compliance. The Company covenants that, so long as it is subject to
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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 the Holder to
sell Shelf Registrable Securities pursuant to Rule 144 under the Securities Act.
(b) Cooperation with the Holder. In connection with any sale, transfer or
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other disposition by a Holder of any Shelf Registrable Securities pursuant to
Rule 144 under the Securities Act, the Company shall cooperate with the Holder
to facilitate the timely preparation and delivery of certificates representing
Shelf Registrable Securities to be sold and not bearing any Securities Act
legend, and enable certificates for such Shelf Registrable Securities to be for
such number of shares as the Holder may reasonably request at least two business
days prior to any sale of Shelf Registrable Securities.
8. Miscellaneous.
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(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 Holder.
(b) Notices. All notices and other communications provided for or
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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 Holder, at the respective addresses set forth in the Acquisition
Agreement, 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) No Assignment. This Agreement shall inure to the benefit of and be
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binding upon the parties hereto and, where applicable, their successors and
permitted assigns. No party to this Agreement may assign or delegate all or any
portion of its rights, obligations, or liabilities under this Agreement without
the prior written consent of each other party to this Agreement. Nothing
expressed or implied herein is intended or shall be construed to confer upon or
give to any third party any rights or remedies by virtue hereof.
(d) Third Party Beneficiaries. There shall be no third party
-------------------------
beneficiaries or intended beneficiaries of this Agreement
(e) Counterparts. This Agreement may be executed in any number of
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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
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reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
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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
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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.
[Signatures begin on following page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above
WEEKS CORPORATION
By:
___________________________
Name:
Title:
PARAGON LEGACY ASSOCIATES, LTD.,
By: WRC Turtle Creek, Inc.,
a Texas corporation
By:
_______________________
Name:
Title:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above
WEEKS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
PARAGON LEGACY ASSOCIATES, LTD.,
By: WRC Turtle Creek, Inc.,
a Texas corporation
By:
_______________________
Name:
Title:
