EXHIBIT 10.3
================================================================================
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of January 9, 1998
by and among
WEEKS CORPORATION
and
XXXXXXX XXXXXX, XXXXXX
FAMILY INVESTMENTS, LTD., and
CODINA WEST DADE DEVELOPMENT CORPORATION
================================================================================
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is made
and entered into as of January 9, 1998 by and among WEEKS CORPORATION, a Georgia
corporation (the "Company"), XXXXXXX XXXXXX, an individual resident of the State
of Florida ("Codina"), CODINA FAMILY INVESTMENTS, LTD., a Florida limited
partnership ("CFI"), CODINA WEST DADE DEVELOPMENT CORPORATION, a Florida
corporation ("West Dade") (collectively, Codina, CFI and West Dade are referred
to hereafter as the "Holders").
WHEREAS, this Agreement is made pursuant to the Beacon Centre Contribution
Agreement by and among Weeks Realty, L.P., a Georgia limited partnership (the
"Operating Partnership"), and the Contributors (as therein defined) dated as of
January 2, 1998 (the "Contribution Agreement");
WHEREAS, the Holders will become the owners of Units (as defined below) in
the Operating Partnership, in connection with the transactions described in the
Contribution Agreement;
WHEREAS, in order to induce the Operating Partnership to enter into the
transactions described in the Contribution Agreement, each of the Holders has
agreed to the Holders Lock-up (as defined below) set forth in Section 2 hereof;
and
WHEREAS, in order to induce the Holders to enter into the transactions
described in the Contribution Agreement, the Company has agreed, with respect to
the Units issued pursuant to the Contribution Agreement to provide the 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.
-----------
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
------------
the Company.
"Company" shall have the meaning set forth in the Preamble and also shall
-------
include the Company's successors.
"Contribution Agreement" shall have the meaning set forth in the Preamble.
----------------------
"Control" shall mean the ability, whether by the direct or indirect
-------
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.
----------
"Entity" shall mean any general partnership, limited partnership,
------
corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
------------
from time to time.
"Holders" shall have the meaning set forth in the Preamble. Holder shall
-------
mean each individual Holder.
"Holders Lock-up" shall have the meaning set forth in Section 2 hereof.
---------------
"Holders Lock-up Period" shall have the meaning set forth in Section 2
----------------------
hereof.
"Immediate Family Member" shall mean any child, stepchild, grandchild,
-----------------------
parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law of Codina (and
shall include adoptive relationships).
"NASD" shall mean the National Association of Securities Dealers, Inc.
----
"Operating Partnership" shall have the meaning set forth in the Preamble
---------------------
and also shall include the Operating Partnership's successors and assigns.
"Partnership Agreement" shall mean the Second Amended and Restated
---------------------
Agreement of Limited Partnership of the Operating Partnership, as amended.
"Person" shall mean any individual or Entity.
------
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as amended from
--------------
time to time.
-2-
"Selling Expenses" shall mean all underwriting discounts and selling
----------------
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 Holders upon
------
redemption of Units.
"Shelf Prospectus" shall mean the prospectus included in the Shelf
----------------
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
------------------
pursuant to Section 3 hereof.
"Shelf Registrable Securities" shall mean the Shares held by the Holders,
----------------------------
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 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.
"Shelf Registration Expenses" shall mean any and all expenses incident to
---------------------------
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
-------------------------
4(b) hereof.
-3-
"Shelf Registration Statement" shall mean a registration statement of the
----------------------------
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
-----
Partnership issued or issuable to Holders pursuant to the Contribution
Agreement, which interests are redeemable for Common Stock, or at the Operating
Partnership's option, cash.
2. Lock-Up Agreement.
-----------------
(a) Lock-Up for the Holders. Each Holder hereby agrees that with respect
-----------------------
to all Units issued pursuant to the Contribution Agreement from the date of
issuance of each Unit until the earlier of (i) the third anniversary of the date
hereof, (ii) the date which is three months after the date hereof if Codina has
not been appointed as a member of the Board of Directors of the Company, (iii)
the date on which Codina ceases to serve as a member of the Board of Directors
of the Company (other than pursuant to a voluntary resignation), and (iv) the
death of Codina, such 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 "Holders Lock-up" and the lock-up periods are referred to as
the "Holders Lock-up Period"); provided, however, that subject to the
limitations contained in the Contribution Agreement and the Partnership
Agreement (including, without limitation, the right of the Operating Partnership
and its affiliates to pay cash for the Units to be exchanged), each Holder may
exchange its Units for shares of Common Stock, upon the prior written consent of
the Company, which consent shall not be unreasonably withheld, provided that
such Holder shall agree that each of the provisions of this Section 2 will be
applicable to the shares of Common Stock so issued.
(b) Lock-up of the Beneficial Interest Held by Codina in CFI and West
-----------------------------------------------------------------
Dade. Codina hereby agrees that until the expiration of the Holders Lock-up
----
Period, without the prior written consent of the Company, the owners of the
beneficial interests in CFI and West Dade will not Dispose of, directly or
indirectly, any beneficial ownership interest that such individual holds in CFI
or West Dade.
(c) Exceptions. The following transfers of Units shall not be subject to
----------
the Holders Lock-up set forth in Section 2(a) or the restrictions imposed on the
owners of the beneficial interests in CFI and West Dade as provided for in
Section 2(b):
(i) subject to applicable restrictions contained in the Partnership
Agreement, a Holder may Dispose of its Units to an Immediate Family Member
and to entities entirely owned, directly or indirectly, by or for the
benefit of Codina and Immediate Family Members; and
-4-
(ii) subject to applicable restrictions contained in the Partnership
Agreement, a Holder may Dispose of its Units pursuant to a pledge, grant
of security interest or other encumbrance effected in a bona fide
transaction with an unrelated and unaffiliated pledgee;
provided, however, that 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 Holder Disposes of Units pursuant to this Section 2(c), (i) such
Units shall remain subject to this Agreement and, as a condition of the validity
of such disposition, the transferee shall be required to execute and deliver a
counterpart of this Agreement; and (ii) if the transferee is an entity in which
the transferring Holder owns an interest, then the interest of such Holder in
such transferee shall be subject to the Holders Lock-up. Thereafter, such
transferee shall be deemed to be a Holder for purposes of this Agreement.
3. Shelf Registration Under the Securities Act for the Benefit of the
------------------------------------------------------------------
Holders.
-------
(a) Filing of Shelf Registration Statement. The Company shall cause to
--------------------------------------
be filed within 10 business days after the expiration of the Holders Lock-up
Period, a Shelf Registration Statement providing for the sale by the Holders of
all Shelf Registrable Securities, not theretofore registered, in accordance with
the terms hereof and will use its reasonable best 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 best efforts
to keep the Shelf Registration Statement with respect to the Shelf Registrable
Securities continuously effective so long as the Holders hold 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, however, that the Company shall
-------- -------
not be deemed to have used its reasonable and diligent efforts to keep the Shelf
Registration Statement effective during the applicable period if it voluntarily
takes any action that would result in the Holders 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). Notwithstanding anything
in Section 4(b) or Section 5 to the contrary, the Holders will not be precluded
from making offers or sales under the Shelf Registration Statement for more than
an aggregate of one hundred thirty two (132) days during any twelve-month
period.
(b) Expenses. The Company shall pay all Shelf Registration Expenses in
--------
connection with each registration pursuant to Section 3(a). Each Holder shall
pay all Selling Expenses and the fees and disbursements of counsel representing
such Holder, if any, relating to the sale or disposition of such Shelf
Registrable Securities pursuant to the Shelf Registration Statement.
-5-
(c) Inclusion in Shelf Registration Statement. If any Holder does not
-----------------------------------------
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.
-----------------------------
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 Holders 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
Holders 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 Holders to
the effect that the Holders may not make offers or sales under the Shelf
Registration Statement for a period not to exceed sixty (60) days from the
date of such notice; provided, however, that the Company may deliver 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 Holders that they intend 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 days to
-------- -------
prepare and file any such amendment or supplement after receipt of the
Shelf Registration Notice. Once the Holders have delivered a Shelf
Registration Notice to the Company, each Holder covered thereby shall
-6-
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. Such Holders also shall notify the Company in
writing upon completion of such offer or sale or at such time as such
Holders no longer intend to make offers or sales under the Shelf
Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to
the Company, furnish each Holder covered thereby, 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 Holders 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 best 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 Holders 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 Holders after
they have delivered a Shelf Registration Notice to the Company, whichever
is shorter; provided, however, that in connection therewith, the Company
-------- -------
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 Holders 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
-7-
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 best 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 Holders have delivered a Shelf Registration Notice to
the Company, furnish to each Holder covered thereby, 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 each 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 each 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 Holders have provided a Shelf Registration Notice to
the Company, make available for inspection by each Holder covered thereby
and any counsel, accountants or other representatives retained by such
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 Holder, counsel, accountants or
representatives in connection with the Shelf Registration Statement;
provided, however, that such records, documents or information which the
-------- -------
Company determines in good faith to be confidential and notifies such
Holder, counsel, accountants or representatives in writing that such
records, documents or information are confidential shall not be disclosed
by such 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
-8-
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 each Holder covered thereby after the Holders have 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 each Holder to furnish to the Company in writing
such information regarding the proposed distribution by such 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, each 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)), such Holder
shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf
Registration Statement until such 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, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such 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 such 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
-9-
expiration of such sixty (60) day period, such 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) such 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) such 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) such 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 Agreement. Subject to the provisions of Section 3(a), each
------------------
Holder agrees not to effect any public sale or distribution (including sales
pursuant to Rule 144) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
7 days prior to (provided that such Holder receives a notice from the Company of
the commencement of such 7-day period) and the 45-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.
-----------------------------
(a) Indemnification by the Company. The Company agrees to indemnify and
------------------------------
hold harmless each Holder and the beneficial owners, officers and directors and
each Person, if any, who controls each 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 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
-10-
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)
-------- -------
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 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 Contribution
Agreement or any admission amendment to the Partnership Agreement.
(b) Indemnification by the Holders. Each 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
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 such Holder from any offering
made in connection with a Shelf 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 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
-11-
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 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
------------
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 Holders 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
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 Holders on the other
(in such proportion that the selling 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 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
-12-
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 any Holder within the meaning of Section 15 of the
Securities Act and beneficial owners, directors and officers of any Holder shall
have the same rights to contribution as any member of the Holders, 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 Holders as set forth in Section 6(a) above.
7. Rule 144 Sales.
--------------
(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 Holders to
sell Shelf Registrable Securities pursuant to Rule 144 under the Securities Act.
(b) Cooperation with the Holders. In connection with any sale, transfer
----------------------------
or other disposition by a Holder of any Shelf Registrable Securities pursuant to
Rule 144 under the Securities Act, the Company shall cooperate with such 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 such Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities.
8. 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 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
-13-
guaranteeing overnight delivery, (i) if to the Holders, at the respective
addresses set forth in the Contribution 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) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors, permitted assigns and permitted transferees
of each of the parties. If any successor, permitted assignee or permitted
transferee of any Holder shall acquire Shelf Registrable Securities, in any
manner, whether by operation of law or otherwise, such Shelf Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Shelf 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
(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.
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above
WEEKS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name:
Title:
CODINA FAMILY INVESTMENTS, LTD.
By: Codina Investments, Inc.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name:
Title:
/s/ Xxxxxxx Xxxxxx
-----------------------------------------------
XXXXXXX XXXXXX
CODINA WEST DADE DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name:
Title:
-15-
