Exhibit 10.2.10
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is
made and entered into as of July 31, 1997 by and among Colonial Properties
Trust, an Alabama real estate investment trust (the "Company"), Colonial Realty
Limited Partnership, a Delaware limited partnership (the "Operating
Partnership"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Holders").
WHEREAS, on the date hereof the Operating Partnership is acquiring
certain real property in and around ▇▇▇▇▇▇▇ 400 Business Center, located in
North ▇▇▇▇▇▇ County, Georgia, and certain personal property in connection
therewith pursuant to the Contribution and Merger Agreement dated as of July 31,
1997, by and between the Operating Partnership and ▇▇▇▇▇▇▇ 400 Associates, L.P.;
the Contribution and Merger Agreement dated as of July 31, 1997, by and between
the Operating Partnership and ▇▇▇▇▇▇▇ Overlook 100, LLC; and the limited warrant
deed conveying ▇▇▇▇▇▇▇ Court East to the Operating Partnership (collectively,
the "Agreements"), and in connection therewith the Holders will receive Class B
Units of limited partnership interest in the Operating Partnership (such Class B
Units and the Class A Units of limited partnership interest into which such
Class B Units will be converted being referred to hereinafter as the "Units");
WHEREAS, in order to induce the Holders to consummate the closing
contemplated under the Agreements, the Company has agreed to grant the Holders
the registration rights set forth in Section 3 hereof;
WHEREAS, in order to induce the Operating Partnership to consummate the
closing contemplated under the Agreements, the Holders have agreed to the
Lock-up (as defined in Section 2(a) 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 hereby are
acknowledged, hereby agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Common Shares" shall mean common shares of beneficial interest, par
value $ .01 per share, in the Company.
"Company" shall have the meaning set forth in the Preamble and also
shall include the Company's successors.
"Dispose of" shall have the meaning set forth in Section 2(a) hereof.
"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 and also
shall include the Holders' successorsand permitted assigns.
"Lock-up" shall have the meaning set forth in Section 2(a) hereof.
"Lock-up Period" shall have the meaning set forth in Section 2(a)
hereof.
"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.
"Person" shall mean an individual, partnership, corporation, trust,
estate, or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to such
prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Registrable Securities" shall mean the Shares, excluding (i) Shares
for which a Registration Statement relating to the sale thereof shall have
become effective under the Securities Act and which have been disposed of under
such Registration Statement and (ii) Shares sold pursuant to Rule 144 under the
Securities Act or Shares which, when combined with all other Shares then owned
by the Holders, are eligible for sale pursuant to Rule 144 in a single
transaction in accordance with the volume limitations contained in Rule 144(e)
(or any successor rule under the Securities Act).
"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 or 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 "blue sky" qualification of any of the Registrable Securities
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 any Registration
Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement; (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges pursuant to Section 4(1)
hereof; and (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance. Registration Expenses shall specifically exclude
underwriting discounts and commissions, the fees and disbursements of counsel
representing the Holders, and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by the Holders, all of which shall be
borne by the Holders in all cases.
"Registration Notice" shall have the meaning set forth in Section 4(b)
hereof.
"Registration Statement" or "Shelf Registration Statement" shall mean a
"shelf" registration statement of the Company and any other Person required to
be a registrant with respect to such shelf registration statement pursuant to
the requirements of the Securities Act which covers the issuance or resale of
the Registrable Securities on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shares" shall mean any Common Shares issued or to be issued to the
Holders upon redemption of their Units.
"Shelf Registration" shall mean a registration required to be effected
pursuant to Section 3 hereof.
"Units" shall have the meaning set forth in the Preamble.
2. Lock-up Agreement.
2(a) Each Holder hereby agrees that, except as set forth in
Sections 2(b) and 2(c) below, for three years following the date hereof (the
"Lock-up Period"), such Holder will not, without the prior written consent of
the Company, offer, pledge, sell, contract to sell, grant any options for the
sale of or otherwise dispose of, directly or indirectly (collectively, "Dispose
of"), any Units (the "Lock-up"); provided, however, that if ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
has not been elected to the Board of Trustees of the Company prior to the
adjournment of the next regularly scheduled meeting of the Board of Trustees
following the date hereof or ceases to be a Trustee of the Company at any time
after his election and prior to the date which is three years from the date
hereof, the Lock-up Period shall expire on the later to occur of (i) the date
that is one year from the date hereof or (ii) the date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ceases
to be a Trustee.
2(b) The following transfers of Units shall not be subject to the Lock-up
set forth in Section 2(a):
(i) a Holder may Dispose of Units as a gift or other transfer without
consideration;
(ii) a Holder who is a natural person may Dispose of Units to his or her
spouse,siblings, parents or any natural or adopted children or other descendants
or to any personal trust in which such family members or such Holder retains the
entire beneficial interest;
(iii) a Holder may Dispose of Units to one or more corporations,
partnerships or other business entities that are wholly owned and controlled,
legally and beneficially, by such Holder or by a Person or Persons that directly
or indirectly wholly own and control such Holder;
(iv) a Holder that is a corporation, partnership or other business entity
(other than a Holder in which any Person other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ owns an equity interest) may Dispose of Units by distributing
such Units in a liquidation, winding up or otherwise without consideration to
the equity owners of such corporation, partnership or business entity or to any
other corporation, partnership or business entity that is wholly owned by such
equity owners; and
(v) a Holder may Dispose of Units pursuant to a pledge, grant of security
interest or other encumbrance effected in a bona fide transaction with an
unrelated and unaffiliated pledgee. In the event that a Holder Disposes of Units
as permitted by this Section 2(b), 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 (except that a pledgee shall not be required to execute and deliver a
counterpart of this Agreement until it forecloses upon such Units). Thereafter,
such transferee shall be deemed to be a Holder for purposes of this Agreement.
2(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ may Dispose of Units for the purpose
of exercising such rights as are accorded to him under Section 8.12(b) of the
Contribution and Merger Agreement between the Operating Partnership and ▇▇▇▇▇▇▇
Overlook 200, LLC.
3. Shelf Registration Under the Securities Act.
3(a) Filing of Shelf Registration Statement. At any time
beginning on the sixtieth day prior to the expiration of the Lock-up Period (or,
if the Lock-up Period is less than three years, at any time after the expiration
of the Lock-up Period), any Holder, or one or more Holders, may deliver to the
Company a written notice requesting that the Company cause to be filed with the
SEC a Registration Statement registering the resale by such Holders of a
specified number of Registrable Securities (which number shall not be less than
50,000) held by or issuable to such Holder(s). Within 60 days of its receipt of
such a notice the Company shall cause to be filed with the SEC a Shelf
Registration Statement providing for the resale by such Holder(s) of the
Registrable Securities specified in the notice (and, if the Company so elects,
any other securities of the Company held by the Holders or any other Person,
including any other Registrable Securities held by the requesting Holder(s) or
other Holders) in accordance with the terms hereof and will use its reasonable
efforts to cause such Shelf Registration Statement to be declared effective by
the SEC as soon as practicable thereafter. The Company also may, at any time and
without receipt of a notice or request from any Holder(s), file a Shelf
Registration Statement registering the resale of all Registrable Securities not
previously covered by a Shelf Registration Statement, which Shelf Registration
Statement also may register for sale Common Shares held by any other Person and
which shall satisfy the Company's obligation to file a Shelf Registration
Statement under this Section 3(a). The Company agrees to use its reasonable
efforts to keep any Shelf Registration Statement filed pursuant to this Section
3(a) continuously effective for a period expiring on the date on which all of
the Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or have become eligible for
sale pursuant to Rule 144 in a single transaction in accordance with the volume
limitations contained in Rule 144(e) (or any successor rule under the Securities
Act) and, subject to Section 4(b) and Section 4(i), further agrees to supplement
or 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 by any
other rules and regulations thereunder for shelf registration; provided,
however, that the Company shall not be deemed to have used its reasonable
efforts to keep a Registration Statement effective during the applicable period
if it voluntarily takes any action that would result in the selling Holders
covered thereby not being able to sell such Registrable Securities during that
period, unless such action is required under applicable law or the Company has
filed a post-effective amendment to the Registration Statement and the SEC has
not declared it effective. Notwithstanding the foregoing, the Company shall not
be required to file a Registration Statement or to keep a Registration Statement
effective if the negotiation or consummation of a transaction is pending or an
event has occurred, which negotiation, consummation or event would require
additional disclosure by the Company in the Registration Statement of material
information which the Company has a bona fide business purpose for keeping
confidential and the nondisclosure of which in the Registration Statement might
cause the Registration Statement to fail to comply with applicable disclosure
requirements, and the Company so advises the affected Holder(s) in a writing
signed by the chief executive officer or chief financial officer of the Company;
provided, however, that the Company may not delay, suspend or withdraw a
Registration Statement for such reason for more than 60 days or more often than
twice during any period of 12 consecutive months.
3(b) Expenses. The Company shall pay all Registration Expenses
in connection with any registration pursuant to Section 3(a). Each Holder shall
pay all underwriting discounts, if any, sales commissions, fees and
disbursements of counsel representing such Holder, and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement or Rule 144 under the Securities
Act.
3(c) Inclusion in Shelf Registration Statement. Any Holder who
does not timely provide the information reasonably requested by the Company in
connection with any Shelf Registration Statement shall not be entitled to have
such Holder's Registrable Securities included in the Shelf Registration
Statement.
3(d) Repurchase Option. If a Holder redeems Units pursuant to
the Amended and Restated Agreement of Limited Partnership of the Operating
Partnership prior to such Holder's request for or the Company's voluntary filing
of a Shelf Registration Statement pursuant to Section 3(a) covering the Shares
issuable upon such redemption, the Company may, in the event that such Holder
subsequently delivers to the Company a notice pursuant to Section 3(a)
requesting registration of the resale of any such Shares, elect to repurchase
such Shares for cash in lieu of filing a Shelf Registration Statement. The
Company shall make any such election by delivering written notice to the Holder
within 30 days after receipt of such request. If the Company so elects, the
purchase price per Share so repurchased shall be equal to the average of the
closing prices of the Common Shares on the New York Stock Exchange (or on such
other exchange or in such other market as the Common Shares are then listed or
traded) on the ten trading days preceding the Company's receipt of such request
(or, if the Common Shares have not traded on all ten of such trading days, in an
amount equal to the fair value of such Registrable Securities as determined in
good faith by the Board of Trustees of the Company).
4. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statement pursuant to Section 3 hereof, the Company shall:
4(a) prepare and file with the SEC, within the time period set
forth in Section 3 hereof, a Shelf Registration Statement, which Shelf
Registration Statement (i) shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of distribution by
the Holder(s) thereof 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;
4(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 and
post-effective amendments to each such Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period; (ii) cause each such Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to 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, post-effective amendment or
supplement relating thereto; and (iv) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the Holder(s) thereof.
Notwithstanding anything to the contrary contained herein, the Company shall not
be required to take any of the actions described in subsections (i), (ii) or
(iii) above with respect to a Holder unless and until the Company has received a
notice (a "Registration Notice") from such Holder that such Holder intends to
make offers or sales under the Registration Statement as specified in such
Registration Notice; provided, however, that the Company shall have ten business
days to prepare and file any such amendment or supplement after receipt of such
Registration Notice. Once a Holder has delivered a Registration Notice to the
Company, such Holder shall promptly provide to the Company such information as
the Company reasonably requests in order to identify such Holder and the method
of distribution in a Registration Statement or post-effective amendment to the
Registration Statement or a supplement to the Prospectus. Such Holder also shall
notify the Company in writing upon completion of such offer or sale or at such
time as such Holder no longer intends to make offers or sales under the
Registration Statement;
4(c) furnish to each Holder of Registrable Securities that has
delivered a Registration Notice to the Company, without charge, as many copies
of each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder may reasonably
request, in order to facilitate the public sale or other disposition of the
Registrable Securities; the Company consents to the use of the Prospectus,
including each preliminary Prospectus, by each such Holder of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or the preliminary Prospectus;
4(d) use its reasonable efforts to register or qualify the
Registrable Securities by the time the applicable Registration Statement is
declared effective by the SEC under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities covered
by a Registration Statement shall reasonably request in writing, keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective or during the period offers or sales
are being made by any such Holder, whichever is shorter, and do any and all
other acts and things which may be reasonably necessary or advisable to enable
each such Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Section 4(d), (ii)
subject itself to taxation in any such jurisdiction, or (iii) submit to the
general service of process in any such jurisdiction;
4(e) notify each Holder of Registrable Securities that has
delivered a Registration Notice to the Company promptly and, if requested by any
such Holder, confirm such advice in writing (i) when a Registration Statement
has become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(iii) if the Company receives any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any jurisdiction or
the initiation of any proceeding for such purpose, and (iv) of the happening of
any event during the period a Registration Statement is effective which is of a
type specified in the last sentence of Section 3(a) hereof or as a result of
which such Registration Statement or the related Prospectus 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, in light of the
circumstances under which they were made (in the case of the Prospectus), not
misleading;
4(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
4(g) furnish to each Holder of Registrable Securities that has
delivered a Registration Notice to the Company, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
4(h) cooperate with the selling Holder(s) of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any Securities
Act legend; and enable certificates for such Registrable Securities to be issued
for such numbers of Shares and registered in such names as the selling Holder(s)
may reasonably request at least two business days prior to any sale of
Registrable Securities;
4(i) subject to the last sentence of Section 3(a) hereof and
the last three sentences of Section 4(b) hereof, upon the occurrence of any
event contemplated by Section 4(e)(iv) hereof, use its reasonable efforts
promptly to prepare and file a supplement or prepare, file and obtain
effectiveness of a post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
4(j) make available for inspection by representatives of the
Holder(s) of Registrable Securities and any counsel or accountant retained by
such Holder(s), all financial and other records, pertinent corporate documents
and properties of the Company, and cause the respective officers, directors and
employees of the Company to supply all information reasonably requested by any
such representative, counsel or accountant in connection with a Registration
Statement; provided, however, that such records, documents or information which
the Company determines, in good faith, to be confidential and notifies such
representatives, counsel or accountants in writing that such records, documents
or information are confidential shall not be disclosed by the representatives,
counsel or accountants unless (i) the disclosure of such records, documents or
information is necessary to avoid or correct a material misstatement or omission
in a Registration Statement, (ii) the release of such records, documents or
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) such records, documents or information have
been generally made available to the public;
4(k) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document (not
including any documents incorporated by reference therein unless requested) to
the Holders of Registrable Securities that have provided a Registration Notice
to the Company;
4(l) use its reasonable efforts to cause all Registrable
Securities covered by a Registration Statement to be listed on any securities
exchange on which similar securities issued by the Company are then listed;
4(m) provide a CUSIP number for all Registrable
Securities, not later than the effective date
of a Registration Statement;
4(n) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC and 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; and
4(o) use its reasonable efforts to cause the Registrable
Securities covered by a Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary by virtue
of the business and operations of the Company to enable the selling Holders to
consummate the disposition of such Registrable Securities.
The Company may require each Holder of Registrable Securities to
furnish to the Company in writing such information regarding the proposed
distribution by such Holder of such Registrable Securities 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 Registration Statement pursuant to Section 3 hereof and this
Section 4, each Holder agrees that (i) such Holder will not offer or sell such
Holder's Registrable Securities under the Registration Statement until such
Holder has provided a Registration Notice pursuant to Section 4(b) hereof and
has received copies of the supplemental or amended Prospectus contemplated by
Section 4(b) hereof and received notice that any post-effective amendment has
become effective, (ii) upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(e)(iv) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder receives copies of the
supplemented or amended 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 their possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice, (iii) all
offers and sales under the 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) of this paragraph, and upon expiration of such sixty (60)
day period such Holder will not offer or sell such Holder's Registrable
Securities under the Registration Statement until such Holder has again complied
with the provisions of clause (i) of this paragraph and (iv) such Holder will
deliver or cause delivery of the Prospectus to any purchaser of Registrable
Securities from such Holder in accordance with applicable requirements of the
Securities Act and the rules and regulations thereunder.
5. Indemnification; Contribution.
5(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder, the beneficial owners, officers and
directors of each Holder, if any, each underwriter (as defined in the Securities
Act) who participates in the offering of such Registrable Securities, and each
person, if any, who controls such Holder or participating person within the
meaning of the Securities Act, as follows: (i) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Registrable
Securities were registered under the Securities Act, including all documents
incorporated therein by reference, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto), including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of 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
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and (iii) 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 omission, or any
such alleged untrue statement or 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 5(a) does not apply to any Holder
with respect to any loss, liability, claim, damage or expense to the extent
arising out of (x) any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) or (y) such Holder's failure to deliver an amended or
supplemental Prospectus if such loss, liability, claim, damage or expense would
not have arisen had such delivery occurred.
5(b) Indemnification by Holders.
Each Holder severally, not
jointly, agrees to indemnify and hold harmless the Company and its trustees and
officers (including each trustee and 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, to the same extent as
the indemnity contained in Section 5(a) hereof (except that any settlement
described in Section 5(a)(ii) shall be effected with the written consent of such
Holder), but only insofar as such loss, liability, claim, damage or expense
arises out of or is based upon any untrue statement or omission, or alleged
untrue statements or omissions, made in a Registration Statement (or any
amendment thereto) or any 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 in such Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement thereto).
5(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 5(a) or 5(b) above, unless and to the extent it did not
otherwise learn of such action and the lack of notice by the indemnified party
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 5(a) or 5(b) above. If the indemnifying party
so elects within a reasonable time after receipt of such notice, the
indemnifying party may assume the defense of such action or proceeding at such
indemnifying party's own expense with counsel chosen by the indemnifying party
and approved by the indemnified parties defendant in such action or proceeding,
which approval shall not be unreasonably withheld; provided, however, that, if
such indemnified party or parties reasonably determine that a conflict of
interest exists where it is advisable for such indemnified party or parties to
be represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to them which are different from or in addition to
those available to the indemnifying party, then the indemnifying party shall not
be entitled to assume such defense and the indemnified party or parties shall be
entitled to one separate counsel at the indemnifying party's or parties'
expense. If an indemnifying party is not entitled to assume the defense of such
action or proceeding as a result of the proviso to the preceding sentence, such
indemnifying party's counsel shall be entitled to conduct such indemnifying
party's defense and counsel for the indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties, it being
understood that both such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as possible. If an
indemnifying party is not so entitled to assume the defense of such action or
does not assume such defense, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party or parties will pay
the reasonable fees and expenses of counsel for the indemnified party or
parties. In such event, however, no indemnifying party will be liable for any
settlement effected without the written consent of such indemnifying party. If
an indemnifying party is entitled to assume, and assumes, the defense of 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
parties incurred thereafter in connection with such action or proceeding.
5(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 5 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 such
Holders, in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and such Holder on the other (in such proportions
that the 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 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 5(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 5(d), no selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the 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. The
liability of any Holder selling Registrable Securities for contribution shall
not exceed an amount equal to the offering price per share of the Registrable
Securities, multiplied by the number of Registrable Securities sold by such
Holder.
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 5(d), each trustee 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.
6. Rule 144 Sales.
6(a) The Company covenants that it will file the reports
required to be filed by the Company under the Securities Act and the Exchange
Act so as to enable the Holders to sell Shares pursuant to Rule 144 under the
Securities Act.
6(b) In connection with any sale, transfer or other
disposition by a Holder of any Shares 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 Shares to be sold and not
bearing any Securities Act legend, and enable certificates for such Shares to be
for such number of shares and registered in such names as such Holder may
reasonably request at least two business days prior to any sale of Shares.
7. Miscellaneous.
7(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of the Company and the Holder(s) of
a majority in amount of the outstanding Registrable Securities. Notice of any
amendment, modification or supplement to this Agreement adopted in accordance
with this Section 7(a) shall be provided by the Company to the Holder(s) at
least thirty (30) days prior to the effective date of such amendment,
modification or supplement.
7(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, to the parties at their respective addresses set forth opposite their
signatures below or at such other address as a party may indicate by written
notice to the other party or parties.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three (3)
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 courier guaranteeing overnight delivery.
7(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, including, without limitation and without the need for an
express assignment, subsequent Holders. If any successor, assignee or transferee
of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be 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.
7(d) 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.
7(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
7(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF.
7(g) 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.
7(h) 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.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
Address:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, COLONIAL PROPERTIES TRUST
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board, President and Chief Executive Officer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, COLONIAL REALTY LIMITED
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: COLONIAL PROPERTIES HOLDING COMPANY, INC.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Address:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of July 31, 1997
by and among
COLONIAL PROPERTIES TRUST,
COLONIAL REALTY LIMITED PARTNERSHIP
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH (13) OF CODE
SECTION 10-5-9 OF THE 'GEORGIA SECURITIES ACT OF 1973,' AND MAY NOT BE SOLD OR
TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT
TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT.