EXHIBIT 10.66
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 12, 1998
by and between
WEEKS CORPORATION
and
▇▇▇▇▇▇ STREET 1998
EXCHANGE FUND, L.P.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of November 12, 1998 by and between WEEKS CORPORATION, a Georgia
corporation (the "Company"), and ▇▇▇▇▇▇ STREET 1998 EXCHANGE FUND, L.P., a
Delaware limited partnership (the "Holder", and together with the Holder's
assigns, the "Holders").
WHEREAS, this Agreement is made pursuant to the Private Placement Purchase
Agreement by and among the Company, Weeks Realty, L.P., a Georgia limited
partnership (the "Operating Partnership"), and the Holder 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; 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 Sections 2 and 4 hereof;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Common Stock" shall mean the Common Stock, par value $.01 per share, of
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the Company.
"Company" shall have the meaning set forth in the Preamble and also shall
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include the Company's successors.
"Contribution Agreement" shall have the meaning set forth in the Preamble.
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"Control" shall mean the ability, whether by the direct or indirect
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ownership of shares or other equity interests, by contract or otherwise, to
select a majority of the directors of a corporation, to select the managing
partner of a partnership, to select the manager of a limited liability company
or otherwise to select, or have the power to remove and then select, a majority
of those persons exercising governing authority over an Entity. In the case of a
limited partnership, the sole general partner, each of the general partners that
has equal management control and authority, or the designated managing general
partner or managing general partners thereof shall be deemed to have control of
such partnership. In the case of a trust, any trustee thereof or any Person
having the right to select any such trustee shall be deemed to have control of
such trust.
"Entity" shall mean any general partnership, limited partnership,
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corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Holders" shall have the meaning set forth in the Preamble. Holder shall
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mean each individual Holder.
"Maximum Number" means such number of securities that my be included in an
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underwritten public offering when the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the maximum number which can be included
in such offering without adversely affecting the marketability of the offering.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Operating Partnership" shall have the meaning set forth in the Preamble
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and also shall include the Operating Partnership's successors and assigns.
"Partnership Agreement" shall mean the Second Amended and Restated
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Agreement of Limited Partnership of the Operating Partnership, as amended.
"Person" shall mean any individual or Entity.
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"Preferred Stock" shall mean the 8.625% Series D Cumulative Redeemable
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Preferred Stock, par value $.01 per share, of the Company.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
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"Selling Expenses" shall mean all underwriting discounts and selling
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commissions and transfer taxes applicable to the sale of Shelf Registrable
Securities and disbursements of underwriters.
"Shares" shall mean any Preferred Stock issued or issuable to the Holders
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upon the exchange of Units.
"Shelf Prospectus" shall mean the prospectus included in the Shelf
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Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, including any supplement relating to the terms of the
offering of any portion of the Shelf Registrable Securities covered by the Shelf
Registration Statement, and in each case including all material incorporated by
reference therein.
"Shelf Registration" shall mean a registration required to be effected
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pursuant to Section 2 hereof.
"Shelf Registrable Securities" shall mean the Shares held by the Holders,
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excluding (i) Shares that have been registered under any other effective
registration statement, (ii) Shares sold or otherwise transferred pursuant to
Rule 144 under the Securities Act, and (iii) Shares held by the Holders if all
of such Shares are eligible for sale pursuant to Rule 144 under the Securities
Act and could be sold in one transaction in accordance with the volume
limitations contained in Rule 144(e)(1)(i) under the Securities Act.
"Shelf Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange and NASD registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with qualification of any of the Shelf Registrable Securities under
any state securities or blue sky laws and the preparation of a blue sky
memorandum) and compliance with the rules of the NASD, (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing the Shelf Registration Statement, any Shelf Prospectus,
certificates and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Shelf Registrable Securities on any securities
exchange or exchanges pursuant to Section 3(l) hereof, (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, and (vi) all other costs and expenses normally associated with the
issuance and sale of newly issued public securities other than Selling Expenses.
"Shelf Registration Notice" shall have the meaning set forth in Section
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3(b) hereof.
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"Shelf Registration Statement" shall mean a registration statement of the
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Company (and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act) that
covers all of the Shelf Registrable Securities to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments (including post-
effective amendments) to such registration statement, and all exhibits thereto
and materials incorporated by reference therein.
"Units" shall mean the limited partnership interests of the Operating
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Partnership issued to the Holders pursuant to the Contribution Agreement, which
interests are exchangeable for Preferred Stock.
2. Shelf Registration.
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(a) Filing of Shelf Registration Statement. On or before the sixtieth
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(60th) day following the date of this Agreement, or as soon as practicable
thereafter, the Company shall cause to be filed a Shelf Registration Statement
providing for the sale by the Holders of all Shelf Registrable Securities 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 Holders hold such Shelf Registrable Securities. Subject to Section 3(b) and
Section 3(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
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its reasonable and diligent efforts to keep the Shelf Registration Statement
effective during the applicable period if it voluntarily takes any action that
would result in the Holders not being able to sell Shelf Registrable Securities
covered thereby during that period, unless such action is required under
applicable law or the Company has filed a post-effective amendment (other than
one which removes Shelf Registrable Securities from effective registration under
the Securities Act) to the Shelf Registration Statement and the SEC has not
declared it effective or except as otherwise permitted by the last three
sentences of Section 3(b).
(b) Expenses. The Company shall pay all Shelf Registration Expenses in
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connection with each registration pursuant to Section 2(a). Each Holder shall
pay all Selling Expenses and the fees and disbursements of counsel representing
such Holder, if any, relating to the sale or disposition of such Shelf
Registrable Securities pursuant to the Shelf Registration Statement.
(c) Inclusion in Shelf Registration Statement. If any Holder does not
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provide the information reasonably requested by the Company in connection with
the Shelf Registration Statement as promptly as practicable after receipt of
such request, but in no event later than ten (10) days thereafter, it shall not
be entitled to have its Shelf Registrable Securities included in the Shelf
Registration Statement.
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(d) Plan of Distribution. The Shelf Registration Statement shall provide
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for and permit distributions of the Shelf Registerable Securities through
secondary distributions, block trades, ordinary brokerage transactions, or a
combination of such methods of sale; provided, however, that the Company shall
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not be required to participate in any organized distribution efforts, including,
without limitation, "road shows" and investor meetings.
3. Shelf Registration Procedures.
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In connection with the obligations of the Company with respect to the Shelf
Registration Statement contemplated by Section 2 hereof, the Company shall:
(a) prepare and file with the SEC, within the time period set forth
in Section 2 hereof, the Shelf Registration Statement, which Shelf
Registration Statement (i) shall be available for the sale of the Shelf
Registrable Securities in accordance with the intended method or methods of
distribution by the Holders covered thereby and (ii) shall comply as to
form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed
therewith;
(b) subject to the last three sentences of this Section 3(b) and
Section 3(i) hereof, (i) prepare and file with the SEC such amendments to
such Shelf Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the applicable period; (ii) cause the
Shelf Prospectus to be amended or supplemented as required and to be filed
as required by Rule 424 or any similar rule that may be adopted under the
Securities Act; (iii) respond as promptly as practicable to any comments
received from the SEC with respect to the Shelf Registration Statement or
any amendment thereto; and (iv) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
Holders covered thereby. Notwithstanding anything to the contrary contained
herein, the Company shall not be required to take any of the actions
described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d)
or Section 3(i) with respect to the Shelf Registrable Securities (x) to the
extent that the Company is in possession of material non-public information
that it deems advisable not to disclose or is engaged in active
negotiations or planning for a merger or acquisition or disposition
transaction and it delivers written notice to the Holders to the effect
that the Holders may not make offers or sales under the Shelf Registration
Statement for a period not to exceed forty-five (45) days from the date of
such notice; provided, however, that the Company may deliver only two such
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notices within any twelve-month period, and (y) unless and until the
Company has received a written notice (a "Shelf Registration Notice") from
the Holders that they intend to make offers or sales under the Shelf
Registration Statement as specified in such Shelf Registration Notice;
provided, however, that the Company shall have ten (10) business days to
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prepare and file any such amendment or supplement after receipt of the
Shelf Registration Notice. Once the Holders have delivered a Shelf
Registration Notice to the Company, each Holder covered thereby
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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. Such Holders also shall notify the
Company in writing upon completion of such offer or sale or at such time as
such Holders no longer intend to make offers or sales under the Shelf
Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to
the Company, furnish each Holder covered thereby, without charge, as many
copies of each Shelf Prospectus and any amendment or supplement thereto in
order to facilitate the public sale or other disposition of the Shelf
Registrable Securities; the Company consents to the use of the Shelf
Prospectus and any amendment or supplement thereto by the Holders of Shelf
Registrable Securities in connection with the offering and sale of the
Shelf Registrable Securities covered by the Shelf Prospectus or amendment
or supplement thereto;
(d) use its reasonable 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 Holders shall reasonably request in
writing, keep each such registration or qualification effective during the
period such Shelf Registration Statement is required to be kept effective
or during the period offers or sales are being made by the Holders after
they have delivered a Shelf Registration Notice to the Company, whichever
is shorter; provided, however, that in connection therewith, the Company
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shall not be required to (i) qualify as a foreign corporation to do
business or to register as a broker or dealer in any such jurisdiction
where it would not otherwise be required to qualify or register but for
this Section 3(d), (ii) subject itself to taxation in any such jurisdiction
where is not otherwise subject to taxation, or (iii) file a general consent
to service of process in any such jurisdiction;
(e) notify the Holders promptly and confirm in writing, (i) when the
Shelf Registration Statement and any post-effective amendments thereto have
become effective, (ii) when any amendment or supplement to the Shelf
Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or any part thereof or
the initiation of any proceedings for that purpose, (iv) if the Company
receives any notification with respect to the suspension of the
qualification of the Shelf Registrable Securities for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, and (v)
of the happening of any event during the period the Shelf Registration
Statement is effective as a result of which (A) such Shelf Registration
Statement contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or (B) the Shelf Prospectus as then
amended or supplemented contains any untrue statement of a material fact or
omits
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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 Holders have delivered a Shelf Registration Notice to
the Company, furnish to each Holder covered thereby, without charge, at
least one conformed copy of the Shelf Registration Statement and any post-
effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) cooperate with each selling Holder to facilitate the timely
preparation and delivery of certificates representing Shelf Registrable
Securities to be sold and not bearing any Securities Act legend; and enable
certificates for such Shelf Registrable Securities to be issued for such
numbers of shares as each Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 3(b) hereof, upon
the occurrence of any event contemplated by clause (x) of Section 3(b) or
clause (v) of Section 3(e) hereof, use its reasonable and diligent efforts
promptly to prepare and file an amendment or a supplement to the Shelf
Prospectus or any document incorporated therein by reference or prepare,
file and obtain effectiveness of a post-effective amendment to the Shelf
Registration Statement, or file any other required document, in any such
case to the extent necessary so that, as thereafter delivered to the
purchasers of the Shelf Registrable Securities, such Shelf Prospectus as
then amended or supplemented will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
are made, not misleading;
(j) after the Holders have provided a Shelf Registration Notice to
the Company, make available for inspection by each Holder covered thereby
and any counsel, accountants or other representatives retained by such
Holder all financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and employees
of the Company to supply all such records, documents or information
reasonably requested by such Holder, counsel, accountants or
representatives in connection with the Shelf Registration Statement;
provided, however, that such records, documents or information which the
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Company determines in good faith to be confidential and notifies such
Holder, counsel, accountants or representatives in writing that such
records, documents or information are confidential shall not be disclosed
by such Holder, counsel, accountants or representatives unless (i) such
disclosure is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or governmental agency, or (ii) such
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records, documents or information become generally available to the public
other than through a breach of this Agreement;
(k) within a reasonable time prior to the filing of any Shelf
Registration Statement or any amendment thereto, or any Shelf Prospectus or
any amendment or supplement thereto, provide copies of such document (not
including any documents incorporated by reference therein unless requested)
to each Holder covered thereby after the Holders have provided a Shelf
Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf
Registrable Securities to be listed on any securities exchange on which
similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not
later than the effective date of a Shelf Registration Statement; and
(n) use its reasonable efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder or any similar rule as may be
adopted by the SEC.
The Company may require each Holder to furnish to the Company in writing
such information regarding the proposed distribution by such Holder as the
Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 2 hereof and
this Section 3, each Holder covenants and agrees that (i) it will not offer or
sell any Shelf Registrable Securities under the Shelf Registration Statement
until it has provided a Shelf Registration Notice pursuant to Section 3(b) and
has received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by Section 3(c) and notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 3(e); (ii) upon receipt of any notice from
the Company contemplated by Section 3(b) or Section 3(e) (in respect of the
occurrence of an event contemplated by clause (v) of Section 3(e)), such Holder
shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf
Registration Statement until such Holder receives copies of the supplemented or
amended Shelf Prospectus contemplated by Section 3(i) hereof and receives notice
that any post-effective amendment has become effective, and, if so directed by
the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Shelf Prospectus as amended or supplemented at
the time of receipt of such notice; (iii) all offers and sales by such Holder
under the Shelf Registration Statement shall be completed within sixty (60) days
after the first date on which offers or sales can be made pursuant to clause (i)
above, and upon expiration of such sixty (60) day period, such Holder will not
offer or sell any Shelf Registrable Securities under the Shelf Registration
Statement until it has again complied with the
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provisions of clause (i) above; (iv) such Holder and any of its beneficial
owners, officers, directors or affiliates, if any, will comply with the
provisions of Regulation M promulgated by the SEC as applicable to them in
connection with sales of Shelf Registrable Securities pursuant to the Shelf
Registration Statement; (v) such Holder and any of its beneficial owners,
officers, directors or affiliates, if any, will comply with the prospectus
delivery requirements of the Securities Act as applicable to them in connection
with sales of Shelf Registrable Securities pursuant to the Shelf Registration
Statement; and (vi) such Holder and any of its beneficial owners, officers,
directors or affiliates, if any, will enter into such written agreements as the
Company shall reasonably request to ensure compliance with clause (iv) and (v)
above.
4. Piggyback Registrations.
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(a) Right to Piggyback. If the Company at any time proposes to
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register any of its preferred stock under the Securities Act for sale to the
public, whether for its own account or for the account of other shareholders or
both (except with respect to registration statements on Form S-8 or another form
not available for registering the Shelf Registrable Securities for sale to the
public) (a "Piggyback Registration"), the Company will promptly (but in any
event within 30 days) give written notice to the Holders of its intention to
effect such registration and a description of any underwriting agreement to be
entered into with respect thereto and will include in such registration all
Shelf Registrable Securities with respect to which the Company has received
written requests for inclusion within 15 days after the receipt of the Company's
notice (a "Piggyback Registration Request"); provided, however, that the Company
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shall not be required to include Shelf Registrable Securities in the securities
to be registered pursuant to a registration statement on any form which limits
the amount of securities which may be registered by the issuer and/or selling
security holders if, and to the extent that, such inclusion would make the use
of such form unavailable. In the event that any Piggyback Registration shall be,
in whole or in part, an underwritten public offering of preferred stock, any
Piggyback Registration Request by the Holders shall specify that either (i) such
Shelf Registrable Securities are to be included in the underwriting on the same
terms and conditions as the shares of preferred stock otherwise being sold
through underwriters under such registration, or (ii) such Shelf Registrable
Securities are to be sold in the open market without any underwriting, on terms
and conditions comparable to those normally applicable to offerings of preferred
stock in reasonably similar circumstances.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
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underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
shares requested to be included in such registration exceeds the Maximum Number,
the Company will limit the number of shares included in such registration to the
Maximum Number, and the shares registered shall be selected in the following
order of priority: (i) first, securities the Company proposes to sell, (ii)
securities requested to be included in such registration pursuant to the
Registration Rights and Lock-Up Agreement dated as of August 24, 1994, by and
among the Company and the Company Participants Listed on Schedule A thereof and
the Other Participants Listed on Schedule B thereof, (iii) third, (a) securities
covered by piggyback registration requests pursuant to the Registration Rights
Agreement and Lock-Up
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Agreement dated December 31, 1996 by and among the Company and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and Perimeter Park West Associates Limited Partnership, (b) securities covered
by piggyback registration requests pursuant to the Registration Rights and Lock-
Up Agreement for Post-June 30, 1998 Units dated as of the date hereof by and
among the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and Perimeter Park West Associates Limited
Partnership, (c) securities covered by piggyback registration requests pursuant
to the Registration Rights and Lock-Up Agreement dated as of November 1, 1996,
by and among the Company, NWI Warehouse Group, L.P., ▇▇▇▇▇▇▇ & Company Real
Estate, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., and (d) securities
covered by piggyback registration requests pursuant to the Registration Rights
and Lock-Up Agreement for Post-March 31, 1998 Shares and Units dated as of
November 1, 1996, by and among the Company, NWI Warehouse Group, L.P. and
▇▇▇▇▇▇▇ & Company Real Estate, Inc., pro rata among the holders thereof on the
basis of the number of shares requested to be included in such registration,
(iv) fourth, (a) securities covered by piggyback registration requests pursuant
to the Registration Rights Agreement dated as of November 6, 1998, by and
between the Company and AEW Targeted Securities Fund, L.P., (b) Shelf
Registrable Securities covered by Piggyback Registration requests, and (c) all
other securities requested to be included in such registration, pro rata among
the holders thereof on the basis of the number of shares requested to be
included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
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underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the Maximum Number, the Company will include in such
registration the shares requested to be included therein by the holders
requesting such registration and the Shelf Registrable Securities covered by
Piggyback Registration Requests and any other securities requested to be
included in such registration, pro rata among the holders thereof on the basis
of the number of shares requested to be included in such registration; provided,
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however, that if the holders requesting registration are doing so pursuant to
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demand registration rights of such holders, such holders' shares shall take
priority over any Shelf Registrable Securities and any other securities
requested to be included, which shall be included on a pro rata basis.
5. Holdback Agreements. Each Holder agrees not to effect any public sale
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or distribution (including sales pursuant to Rule 144) of equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, during the 7 days prior to (provided that 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.
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6. Indemnification; Contribution.
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(a) Indemnification by the Company. The Company agrees to indemnify and
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hold harmless each Holder and the beneficial owners, officers and directors and
each Person, if any, who controls each Holder within the meaning of Section 15
of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to which each Holder, or any beneficial owner,
officer, director or controlling Person may become subject under the
Securities Act or otherwise (A) that arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Shelf Registration Statement or any amendment thereto, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (B) that arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Shelf
Prospectus or any amendment or supplement thereto, or the omission or
alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or alleged untrue statement
or any omission or alleged omission, if such settlement is effected with
the written consent of the Company; and
(iii) subject to the limitations set forth in Section 6(c), against
any and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or not a party, or any claim whatsoever based upon any such untrue
statement or alleged untrue statement or omission or alleged omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that the indemnity provided pursuant to this Section 6(a)
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shall not apply with respect to any loss, liability, claim, damage or expense
that arises out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by any Holder (i)
expressly for use in the Shelf Registration Statement or any amendment thereto,
or the Shelf Prospectus or any amendment or supplement thereto or (ii) pursuant
to any representation, warranty or other statement contained in the Contribution
Agreement or any admission amendment to the Partnership Agreement.
(b) Indemnification by the Holders. Each Holder severally agrees to
------------------------------
indemnify and hold harmless the Company, and each of its respective directors
and officers (including each director
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and officer of the Company who signed the Shelf Registration Statement), and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, to the same extent as the indemnity contained in Section
6(a) hereof, but only insofar as such loss, liability, claim, damage or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in the Shelf Registration Statement or any
amendment thereto, or the Shelf Prospectus or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by such Holder expressly for use therein. In no event, however,
shall the liability of a Holder exceed the cumulative net proceeds received by
such Holder from any offering made in connection with a Shelf Registration
Statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party shall
--------------------------------------
give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 6(a) or (b) above, unless and to the extent it did not otherwise
learn of such action and the lack of notice by the indemnified party materially
prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided under Section 6(a) or
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, jointly with any
other indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by such
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the defendants in any
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such action or proceeding include both the indemnified party and the
indemnifying party and the indemnified party reasonably determines, upon advice
of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to separate counsel (which shall be limited to a single
law firm), the reasonable fees and expenses of which shall be paid by the
indemnifying party. If the indemnifying party does not assume the defense of any
such action or proceeding, after having received the notice referred to in the
first sentence of this paragraph, the indemnifying party will pay the reasonable
fees and expenses of counsel (which shall be limited to a single law firm) for
the indemnified party. In such event, however, the indemnifying party will not
be liable for any settlement effected without the written consent of such
indemnifying party. If the indemnifying party assumes the defense of any such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
party incurred thereafter in connection with such action or proceeding, except
as set forth in the proviso in the second sentence of this Section 6(c).
(d) Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in this Section 6
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Company and the selling Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the selling
Holders,
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in such proportion as is appropriate to reflect the relative fault of and
benefits to the Company on the one hand and the selling Holders on the other (in
such proportion that the selling Holders are severally, not jointly, responsible
for the balance), in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits to the indemnifying
party and indemnified parties shall be determined by reference to, among other
things, the total proceeds received by the indemnifying party and indemnified
parties in connection with the offering to which such losses, claims, damages,
liabilities or expenses relate. The relative fault of the indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
the indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), a Holder shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shelf Registrable Securities of such Holder were offered to
the public exceeds the amount of any damages which such Holder would otherwise
have been required to pay by reason of such untrue statement or omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6(d), each Person,
if any, who controls any Holder within the meaning of Section 15 of the
Securities Act and beneficial owners, directors and officers of any Holder shall
have the same rights to contribution as any member of the Holders, and each
director of the Company, each officer of the Company who signed the Shelf
Registration Statement, and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
(e) In the event any sale pursuant to a Shelf Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter of Shelf Registrable Securities to the same extent and on
substantially similar terms as the Company's indemnification of the members of
the Holders as set forth in Section 6(a) above.
7. Rule 144 Sales.
--------------
(a) Compliance. The Company covenants that, so long as it is subject to
----------
the reporting requirements of the Exchange Act, it will file the reports
required to be filed by it under the
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Exchange Act so as to enable the Holders to sell Shelf Registrable Securities
pursuant to Rule 144 under the Securities Act.
(b) Cooperation with the Holders. In connection with any sale, transfer or
----------------------------
other disposition by a Holder of any Shelf Registrable Securities pursuant to
Rule 144 under the Securities Act, the Company shall cooperate with such Holder
to facilitate the timely preparation and delivery of certificates representing
Shelf Registrable Securities to be sold and not bearing any Securities Act
legend, and enable certificates for such Shelf Registrable Securities to be for
such number of shares as such Holder may reasonably request at least two
business days prior to any sale of Shelf Registrable Securities.
8. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified, supplemented or
waived, nor may consent to departures therefrom be given, without the written
consent of the Company and the Holders.
(b) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery,
(i) if to the Holder, at the address set forth in the Contribution Agreement, or
(ii) 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; provided,
--------
however, that the registration rights of any Holder under this Agreement may be
-------
transferred to (a) any transferee of such Shelf Registrable Securities who
acquires at least 25% of the total number of Shelf Registrable Securities
(adjusted for stock splits and consolidations after the date hereof) or (b) an
affiliate of such Holder; provided further that the transferring Holder shall
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give the Company written notice prior to the time of such transfer stating the
name and address of the transferee and identifying the number of Shelf
Registrable Securities so transferred. 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
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(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
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reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
-------------
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:____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
FUND, L.P.
By: ▇▇▇▇▇▇▇ Sachs Management Partners, L.P., its General Partner
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Management,
Inc., its
General Partner
By:______________________________
Name:
Title: