Exhibit 10.6
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of October 27, 1997
by and among
WEEKS CORPORATION
and
GB PARTNERS, LTD., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is
made and entered into as of October 27, 1997 by and among WEEKS CORPORATION, a
Georgia corporation (the "Company"), GB PARTNERS, LTD., a Florida limited
partnership (the "Holder"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual resident of the
State of Florida, including his permitted assigns and transferees, and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, an individual resident of the State of Florida, including his permitted
assigns and transferees.
WHEREAS, this Agreement is made pursuant to the Contribution
Agreement by and between Weeks Realty, L.P., a Georgia limited partnership (the
"Operating Partnership"), and the Contributor (as therein defined) dated as of
even date herewith (the "Contribution Agreement");
WHEREAS, the Holder will become the owner of Units (as defined below)
in the Operating Partnership in connection with the transactions described in
the Contribution Agreement;
WHEREAS, in order to induce the Company and the Operating Partnership
to enter into the transactions described in the Contribution Agreement, the
Holder has agreed to the Holder Lock-up (as defined below) set forth in Section
2 hereof; and
WHEREAS, in order to induce the Holder to enter into the transactions
described in the Contribution Agreement, the Company has agreed, with respect to
the Units issued pursuant to the Contribution Agreement to provide the Holder
with the registration rights set forth in Section 3 hereof;
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. DEFINITIONS.
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.
"HOLDER" shall have the meaning set forth in the Preamble.
"HOLDER LOCK-UP" shall have the meaning set forth in Section 2
hereof.
"HOLDER LOCK-UP PERIOD" shall have the meaning set forth in Section 2
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 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.
"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 (i) any Common Stock issued to the Holder upon
redemption of Units or (ii) any Common Stock issuable to the Holder upon
redemption of Units provided that such Units shall have been held by the Holder
for at least six (6) months prior to the filing of the applicable Shelf
Registration Statement.
"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
Holder, excluding (i) Shares that have been registered under any other effective
registration statement, (ii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iii) Shares held by the Holder if all of
such Shares are eligible for sale pursuant to Rule 144 under the Securities Act
and could be sold in one transaction in accordance with the volume limitations
contained in Rule 144(e)(1)(i) under the Securities Act.
"SHELF REGISTRATION EXPENSES" shall mean any and all expenses
incident to 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.
"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
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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 to the Holder 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 HOLDER. The 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 first anniversary of the date of each such
issuance, without the prior written consent of the Company, 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 "Holder Lock-up" and
the lock-up periods are referred to as the "Holder Lock-up Period").
(b) LOCK-UP OF THE BENEFICIAL INTEREST HELD BY EACH OF ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ IN THE HOLDER. Each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ hereby agrees that until the first anniversary of the last issuance
of Units to the Holder under the Contribution Agreement which are subject to the
lock-up contained in Section 2(a) hereof, without the prior written consent of
the Company, such individual will not Dispose of, directly or indirectly, any
beneficial ownership interest that such individual holds in the Holder, except
that the foregoing restriction will not be applicable to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in
the event of his death or to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the event of his death.
3. SHELF REGISTRATION UNDER THE SECURITIES ACT FOR THE BENEFIT OF THE
HOLDER.
(a) FILING OF SHELF REGISTRATION STATEMENT. The Company shall cause
to be filed during the third quarter of each calendar year, or as soon as
practicable thereafter, a Shelf Registration Statement providing for the sale by
the Holder of all Shelf Registrable Securities, not theretofore registered, in
accordance with the terms hereof and will use its reasonable and diligent
efforts to cause such Shelf Registration Statement to be declared effective by
the SEC as soon as practicable thereafter. The Company agrees to use its
reasonable and diligent efforts to keep the Shelf Registration Statement with
respect to the Shelf Registrable Securities continuously effective so long as
the Holder holds such Shelf Registrable Securities. Subject to Section 4(b) and
Section 4(i), the Company further agrees to amend the Shelf Registration
Statement if and as required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or any rules and regulations
thereunder; PROVIDED, 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 Holder not
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being able to sell Shelf Registrable Securities covered thereby during that
period, unless such action is required under applicable law or the Company has
filed a post-effective amendment (other than one which removes Shelf Registrable
Securities from effective registration under the Securities Act) to the Shelf
Registration Statement and the SEC has not declared it effective or except as
otherwise permitted by the last three sentences of Section 4(b).
(b) EXPENSES. The Company shall pay all Shelf Registration Expenses
in connection with each registration pursuant to Section 3(a). The 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.
(c) INCLUSION IN SHELF REGISTRATION STATEMENT. If the 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 Holder covered
thereby and (ii) shall comply as to form in all material respects
with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith;
(b) subject to the last three sentences of this Section
4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such
amendments to such Shelf Registration Statement as may be necessary
to keep such Shelf Registration Statement effective for the
applicable period; (ii) cause the Shelf Prospectus to be amended or
supplemented as required and to be filed as required by Rule 424 or
any similar rule that may be adopted under the Securities Act; (iii)
respond as promptly as practicable to any comments received from the
SEC with respect to the Shelf Registration Statement or any amendment
thereto; and (iv) comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
Holder covered thereby. Notwithstanding anything to the contrary
contained herein, the Company shall not be required to take any of
the actions described
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in clauses (i), (ii) or (iii) in this Section 4(b), Section 4(d) or
Section 4(i) with respect to the Shelf Registrable Securities (x) to
the extent that the Company is in possession of material non-public
information that it deems advisable not to disclose or is engaged in
active negotiations or planning for a merger or acquisition or
disposition transaction and it delivers written notice to the Holder
to the effect that the Holder may not make offers or sales under the
Shelf Registration Statement for a period not to exceed ninety (90)
days from the date of such notice; PROVIDED, HOWEVER, that the
Company may deliver only two such notices within any twelve-month
period, and (y) unless and until the Company has received a written
notice (a "Shelf Registration Notice") from the Holder that it
intends to make offers or sales under the Shelf Registration
Statement as specified in such Shelf Registration Notice; PROVIDED,
HOWEVER, that the Company shall have ten (10) business days to
prepare and file any such amendment or supplement after receipt of
the Shelf Registration Notice. Once the Holder has delivered a Shelf
Registration Notice to the Company, the Holder shall promptly provide
to the Company such information as the Company reasonably requests in
order to identify the method of distribution in a post-effective
amendment to the Shelf Registration Statement or a supplement to the
Shelf Prospectus. The Holder also shall notify the Company in writing
upon completion of such offer or sale or at such time as the Holder
no longer intends to make offers or sales under the Shelf
Registration Statement;
(c) after the Holder has delivered a Shelf Registration
Notice to the Company, furnish the Holder, without charge, as many
copies of each Shelf Prospectus and any amendment or supplement
thereto in order to facilitate the public sale or other disposition
of the Shelf Registrable Securities; the Company consents to the use
of the Shelf Prospectus and any amendment or supplement thereto by
the Holder of Shelf Registrable Securities in connection with the
offering and sale of the Shelf Registrable Securities covered by the
Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or
qualify the Shelf Registrable Securities by the time the Shelf
Registration Statement is declared effective by the SEC under all
applicable state securities or blue sky laws of such jurisdictions in
the United States and its territories and possessions as the Holder
shall reasonably request in writing, keep each such registration or
qualification effective during the period such Shelf Registration
Statement is required to be kept effective or during the period
offers or sales are being made by the Holder after it has 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 Holder promptly and confirm in writing, (i)
when the Shelf Registration Statement and any post-effective
amendments thereto have become
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effective, (ii) when any amendment or supplement to the Shelf
Prospectus has been filed with the SEC, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending
the effectiveness of the Shelf Registration Statement or any part
thereof or the initiation of any proceedings for that purpose, (iv)
if the Company receives any notification with respect to the
suspension of the qualification of the Shelf Registrable Securities
for offer or sale in any jurisdiction or the initiation of any
proceeding for such purpose, and (v) of the happening of any event
during the period the Shelf Registration Statement is effective as a
result of which (A) such Shelf Registration Statement contains any
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or (B) the Shelf Prospectus as then
amended or supplemented contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Shelf Registration
Statement or any part thereof as promptly as possible;
(g) after the Holder has delivered a Shelf Registration
Notice to the Company, furnish to the Holder 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 the selling Holder to facilitate the
timely preparation and delivery of certificates representing Shelf
Registrable Securities to be sold and not bearing any Securities Act
legend; and enable certificates for such Shelf Registrable Securities
to be issued for such numbers of shares as the Holder may reasonably
request at least two business days prior to any sale of Shelf
Registrable Securities;
(i) subject to the last three sentences of Section 4(b)
hereof, upon the occurrence of any event contemplated by clause (x)
of Section 4(b) or clause (v) of Section 4(e) hereof, use its
reasonable and diligent efforts promptly to prepare and file an
amendment or a supplement to the Shelf Prospectus or any document
incorporated therein by reference or prepare, file and obtain
effectiveness of a post-effective amendment to the Shelf Registration
Statement, or file any other required document, in any such case to
the extent necessary so that, as thereafter delivered to the
purchasers of the Shelf Registrable Securities, such Shelf Prospectus
as then amended or supplemented will not contain any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they are made, not misleading;
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(j) after the Holder has provided a Shelf Registration
Notice to the Company, make available for inspection by the Holder
covered thereby and any counsel, accountants or other representatives
retained by the Holder all financial and other records, pertinent
corporate documents and properties of the Company and cause the
officers, directors and employees of the Company to supply all such
records, documents or information reasonably requested by 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 the Holder, counsel,
accountants or representatives in writing that such records,
documents or information are confidential shall not be disclosed by
the Holder, counsel, accountants or representatives unless (i) such
disclosure is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or governmental agency, or (ii) such
records, documents or information become generally available to the
public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf
Registration Statement or any amendment thereto, or any Shelf
Prospectus or any amendment or supplement thereto, provide copies of
such document (not including any documents incorporated by reference
therein unless requested) to the Holder covered thereby after the
Holder has provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all
Shelf Registrable Securities to be listed on any securities exchange
on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable
Securities, not later than the effective date of a Shelf Registration
Statement; and
(n) use its reasonable efforts to make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder or any similar rule as may be adopted by the SEC.
The Company may require the Holder to furnish to the Company in
writing such information regarding the proposed distribution by 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, the Holder covenants and agrees that (i) it will not offer
or sell any Shelf Registrable Securities under the Shelf Registration Statement
until it has provided a Shelf Registration Notice pursuant to Section 4(b) and
has received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by
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Section 4(c) and notice from the Company that the Shelf Registration Statement
and any post-effective amendments thereto have become effective as contemplated
by Section 4(e); (ii) upon receipt of any notice from the Company contemplated
by Section 4(b) or Section 4(e) (in respect of the occurrence of an event
contemplated by clause (v) of Section 4(e)), the Holder shall not offer or sell
any Shelf Registrable Securities pursuant to the Shelf Registration Statement
until 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 the Holder under
the Shelf Registration Statement shall be completed within sixty (60) days after
the first date on which offers or sales can be made pursuant to clause (i)
above, and upon expiration of such sixty (60) day period, the Holder will not
offer or sell any Shelf Registrable Securities under the Shelf Registration
Statement until it has again complied with the provisions of clause (i) above;
(iv) the Holder and any of its beneficial owners, officers, directors or
affiliates, if any, will comply with the provisions of Regulation M promulgated
by the SEC as applicable to them in connection with sales of Shelf Registrable
Securities pursuant to the Shelf Registration Statement; (v) the Holder and any
of its beneficial owners, officers, directors or affiliates, if any, will comply
with the prospectus delivery requirements of the Securities Act as applicable to
them in connection with sales of Shelf Registrable Securities pursuant to the
Shelf Registration Statement; and (vi) the Holder and any of its beneficial
owners, officers, directors or affiliates, if any, will enter into such written
agreements as the Company shall reasonably request to ensure compliance with
clause (iv) and (v) above.
5. HOLDBACK AGREEMENTS. The Holder agrees not to effect any public
sale 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 90-day period beginning on the effective date of any
underwritten offering of securities by the Company (except as part of such
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
6. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless the Holder and the beneficial owners, officers and directors
and each Person, if any, who controls the Holder within the meaning of Section
15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to which the Holder, or any
beneficial owner, officer, director or controlling Person may become
subject under the Securities Act or otherwise (A) that arise out of
or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Shelf Registration Statement or any
amendment thereto, or the omission or alleged omission to state
therein a material fact required to be stated
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therein or necessary to make the statements therein not misleading or
(B) that arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Shelf
Prospectus or any amendment or supplement thereto, or the omission or
alleged omission to state therein a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or alleged untrue statement or any omission or alleged
omission, if such settlement is effected with the written consent of
the Company; and
(iii) subject to the limitations set forth in Section
6(c), against any and all expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, in each case whether or not a party, or any
claim whatsoever based upon any such untrue statement or alleged
untrue statement or omission or alleged omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section 6(a)
shall not apply with respect to any loss, liability, claim, damage or expense
that arise out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the Holder (i)
expressly for use in the Shelf Registration Statement or any amendment thereto,
or the Shelf Prospectus or any amendment or supplement thereto or (ii) pursuant
to any representation, warranty or other statement contained in the Contribution
Agreement or any admission amendment to the Partnership Agreement.
(b) INDEMNIFICATION BY THE HOLDER. The Holder 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 the
Holder exceed the cumulative net proceeds received by such Holder from any
offering made in connection with a Shelf Registration Statement.
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(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 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 Holder shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the selling
Holder, in such proportion as is appropriate to reflect the relative fault of
and benefits to the Company on the one hand and the selling Holder on the other,
in 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
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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), the Holder shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shelf Registrable Securities of such Holder were offered to
the public exceeds the amount of any damages which such Holder would otherwise
have been required to pay by reason of such untrue statement or omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6(d), each Person, if
any, who controls the Holder within the meaning of Section 15 of the Securities
Act and beneficial owners, directors and officers of the Holder shall have the
same rights to contribution as any member of the Holder, and each director of
the Company, each officer of the Company who signed the Shelf Registration
Statement, and each Person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as the Company.
(e) In the event any sale pursuant to a Shelf Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter of Shelf Registrable Securities to the same extent and on
substantially similar terms as the Company's indemnification of the members of
the Holder as set forth in Section 6(a) above.
7. RULE 144 SALES.
(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 the Holder to
sell Shelf Registrable Securities pursuant to Rule 144 under the Securities Act.
(b) COOPERATION WITH THE HOLDER. In connection with any sale,
transfer or other disposition by the 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
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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 Holder.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery, (i) if to the Holder, at GB Investment & Company, Inc., ▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (ii) if to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, at
GB Investment & Company, Inc., ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, (iii) if to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, at GB Investment & Company, Inc.,
▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or (iv) if to the
Company, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: A. R. Weeks,
Jr.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) NO ASSIGNMENT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and, where applicable, their successors and
permitted assigns. No party to this Agreement may assign or delegate all or any
portion of its rights, obligations, or liabilities under this Agreement without
the prior written consent of each other party to this Agreement. Nothing
expressed or implied herein is intended or shall be construed to confer upon or
give to any third party any rights or remedies by virtue hereof.
(d) THIRD PARTY BENEFICIARIES. There shall be no third party
beneficiaries or intended beneficiaries of this Agreement
(e) COUNTERPARTS. This Agreement may be executed in any number of
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.
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(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above
WEEKS CORPORATION
By:
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Name:
Title:
GB PARTNERS, LTD.
By:
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Name:
Title:
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