Exhibit 10.2.2
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement") is
made and entered into as of March 25, 1997 by and among Colonial Properties
Trust, an Alabama real estate investment trust (the "Company"), Colonial Realty
Limited Partnership, a Delaware limited partnership (the "Operating
Partnership"), and the Holders (as defined in Section 1 hereof).
WHEREAS, on the date hereof the Operating Partnership is acquiring
the Heatherbrooke Medical and Retail Center located in Birmingham, Alabama
pursuant to an Agreement for Contribution of Interests dated as of March 25,
1997 (the "Contribution Agreement") by and between the Operating Partnership and
the partners of Inverness Family Medical Center Partners, Ltd. ("Inverness"),
and in connection therewith, the Holders, as limited partners of Inverness, will
have their portion of the purchase price paid in Class B units of limited
partnership interest in the Operating Partnership (the "Class B Units") (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 approve the consummation
of the closing contemplated under the Contribution Agreement, the Company has
agreed to grant each of the Holders the registration rights set forth in Section
3 hereof; and
WHEREAS, in order to induce the Operating Partnership to consummate
the closing contemplated under the Contribution Agreement, each of the Holders
has 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.
"Contribution Agreement" shall have the meaning set
forth in the Preamble.
"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 mean the parties hereto who hold Class B Units and
such parties' 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 Holder, are eligible for sale pursuant to Rule 144 during a single 90-day
period.
"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 Holder, and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by the Holder, all of which shall be borne
by the Holder in all cases.
"Registration Notice" shall have the meaning set forth
in Section 3(a) 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 a
Holder 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
Section 2(b) below, for one year following the date hereof (the "Lock-up
Period"), it will not, without the prior written consent of the Company, offer,
pledge, sell, contract to sell, grant any options for the sale of or otherwise
dispose of, directly or indirectly (collectively, "Dispose of"), any Units (the
"Lock-up").
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; and
(ii) 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.
3. Shelf Registration Under the Securities Act.
3(a) Filing of Shelf Registration Statement. Beginning after the
expiration of the Lock-up Period, a Holder shall be entitled to offer for sale
pursuant to a Registration Statement any Registrable Securities held by the
Holder, subject to the terms and conditions hereof. Upon receipt by the Company
of a written notice (a "Registration Notice") from one or more of the Holders
that such Holder(s) propose to make a registered offer of a specified number of
Registrable Securities (which number shall not be less than 25,000), the Company
shall cause to be filed within 60 days of receipt by the Company of the
Registration Notice a Shelf Registration Statement providing for the sale by the
Holder(s) of the Registrable Securities specified in such Registration Notice
(and, if the Company so elects, any Registrable Securities held by any other
Holder or 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. The Company agrees to use its
reasonable efforts to keep the Shelf Registration Statement 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 under the Securities Act during a single 90-day period 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 a Holder's 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 Holder(s) in a writing signed by an
executive 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). The Holder(s)
shall pay all underwriting discounts, if any, sales commissions, fees and
disbursements of counsel representing the Holder(s), and transfer taxes, if any,
relating to the sale or disposition of each Holder's Registrable Securities
pursuant to the Shelf Registration Statement or Rule 144 under the Securities
Act.
3(c) Inclusion in Shelf Registration Statement. If a Holder does
not timely provide the information reasonably requested by the Company in
connection with the Shelf Registration Statement, the Holder shall not be
entitled to have its Registrable Securities included in the Shelf Registration
Statement.
3(d) Repurchase Option. In lieu of registering Registrable
Securities that a Holder seeks to register pursuant to Section 3(a) hereof, the
Company may, by delivery of written notice to the Holder within 30 days after
receipt of a Registration Notice from the Holder, elect to repurchase such
Registrable Securities for cash, in an amount per Share 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
Registration Notice (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) 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). 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 unless
and until the Company has received a notice from a Holder that the Holder
intends to make offers or sales under the Registration Statement as specified in
such Registration Notice; provided, however, that the Company shall have 10
business days to prepare and file any such amendment or supplement after receipt
of such notice. Once a Holder has delivered a 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 Holder and the method
of distribution in a Registration Statement or post-effective amendment to the
Registration Statement or a supplement to the Prospectus. A 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
Registration Statement;
4(c) furnish to the Holder(s), without charge, as many copies of
each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as the Holder(s) 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 the Holder(s) 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 the Holder(s) 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 the Holder(s), whichever is
shorter, and do any and all other acts and things which may be reasonably
necessary or advisable to enable the Holder(s) to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by the 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 the Holder(s) promptly and, if requested by a
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 a Holder, 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 Holder(s) 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 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) and any counsel or accountant retained by the 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 Holder(s) in order to permit the Holder(s) to review and comment on such
document;
4(l) use its reasonable efforts to cause all Registrable
Securities 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 Holder(s) to
consummate the disposition of such Registrable Securities.
The Company may require the Holder(s) to furnish to the Company in
writing such information regarding the proposed distribution by the Holder(s) 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) it will not offer or sell its Registrable
Securities under the Registration Statement until it 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
receives 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, the Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
the 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, the Holder
will deliver to the Company (at the expense of the Company) all copies in its
possession, other than permanent file copies then in the Holder's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice, and (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) above, and upon
expiration of such sixty (60) day period the Holder will not offer or sell its
Registrable Securities under the Registration Statement until it has again
complied with the provisions of clause (i) above.
5. Indemnification; Contribution.
5(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder and its partners and each Person, if
any, who controls the Holder within the meaning of Section 15 of the Securities
Act and the respective officers, directors, partners, employees, representatives
and agents of the Holder, its partners and each controlling Person 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 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 the Holder expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) or (y) the 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 Holder. Each of the Holders 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 the 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 the 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 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 Holder,
in such proportion as is appropriate to reflect the relative fault of and
benefits to the Company on the one hand and the Holders 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 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 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), the Holders shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of the Holders were offered to the
public exceeds the amount of any damages which the Holders 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 5(d), each Person,
entitled to indemnification pursuant to Section 5(a) shall have the same rights
to contribution as the Holders, and 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 Holders 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 the 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 Holders.
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
Holders 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 an air 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 a 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) [Intentionally Omitted]
7(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.
7(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
7(g) 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(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.
7(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.
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 Plaza COLONIAL PROPERTIES TRUST
0000 0xx Xxxxxx Xxxxx,
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
By:__/s/ Xxxxxxx X. Nunnelley____
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and
Secretary
Colonial Plaza COLONIAL REALTY LIMITED
0000 0xx Xxxxxx Xxxxx, XXXXXXXXXXX
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
By: COLONIAL PROPERTIES
HOLDING COMPANY, INC.,
General Partner
By: _/s/ Xxxxxxx X. Nunnelley__
Xxxxxxx X. Xxxxxxxxx
Senior Vice President
and
Secretary
Holders of Class B Units
By: _/s/ Xxxxxx X. Lowder____
Xxxxxx X. Xxxxxx,
Attorney-in-fact*
*Serving as attorney-in-fact
for:
B&G Properties Co. LLC
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxx
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx
000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Equity Partners Joint Venture
Energen Plaza, Suite 750
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
===================================================================
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Dated as of March 25, 1997
by and among
COLONIAL PROPERTIES TRUST,
COLONIAL REALTY LIMITED PARTNERSHIP
and
Certain Holders of Class B Units of
Limited Partnership Interests of
Colonial Realty Limited Partnership
===================================================================
