Exhibit 10.2.9
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is
made and entered into as of July 1, 1998, 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Investments I, LLLP, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Investments II, LLLP, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Holders").
WHEREAS, on the date hereof the Operating Partnership is acquiring
certain real property known as "▇▇▇▇▇▇▇ Overlook 200" pursuant to a Contribution
and Merger Agreement dated as of July 31, 1997, by and between Colonial
Properties Holding Company, Inc. ("CPHC"), and the Operating Partnership and
▇▇▇▇▇▇▇ Overlook 200, LLC, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and certain
real property known as "The Shoppes at ▇▇▇▇▇▇▇" pursuant to a Contribution and
Merger Agreement dated as of July 31, 1997, by and between CPHC and the
Operating Partnership and the Shoppes at ▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (together, the "Contribution 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 Contribution 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 Contribution 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' successors and 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 a period of three years from July 31, 1997
(the "Lock-up Period"), without the prior written consent of the Company, it
will not 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ceases
to be a Trustee of the Company at any time prior to July 31, 2000, the Lock-up
Period shall expire on the later of (i) July 31, 1998, 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 each of the Contribution
Agreements. 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 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 minus the number of any Common
Shares that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ simultaneously request by
written notice to be registered for resale pursuant to Section 3(a) of the
Registration Rights and Lock-Up Agreement dated as of July 31, 1997, by and
among the Company, the Operating Partnership and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇) 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
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ INVESTMENTS I, LLLP
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ INVESTMENTS II, LLLP
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of July 1, 1998
by and among
COLONIAL PROPERTIES TRUST,
COLONIAL REALTY LIMITED PARTNERSHIP
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ INVESTMENTS I, LLLP,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ INVESTMENTS II, LLLP
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.