EXHIBIT 4.8
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WEEKS CORPORATION
AND
CODINA GROUP, INC.
____________________________________________
AMENDED AND RESTATED WARRANT AGREEMENT
Effective as of February 24, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.......................................................................... 1
1.1 Certain Definitions........................................................... 1
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ARTICLE II ISSUANCE AND EXECUTION OF WARRANT CERTIFICATES....................................... 3
Section 2.1 ISSUANCE OF WARRANT CERTIFICATES..................................... 3
Section 2.2 FORM OF WARRANT CERTIFICATE.......................................... 3
Section 2.3 EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES......................................................... 3
Section 2.4 TEMPORARY WARRANT CERTIFICATES....................................... 4
Section 2.5 PAYMENT OF TAXES..................................................... 4
Section 2.6 DEFINITION OF HOLDER................................................. 4
ARTICLE III WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS..................................... 5
Section 3.1 WARRANT PRICE........................................................ 5
Section 3.2 DURATION OF WARRANTS................................................. 5
Section 3.3 EXERCISE OF WARRANTS................................................. 5
Section 3.4 RESERVATION OF SHARES................................................ 6
ARTICLE IV OTHER TERMS OF WARRANTS.............................................................. 6
Section 4.1 ADJUSTMENT OF EXERCISE PRICE AND
NUMBER OF SHARES PURCHASABLE OR NUMBER OF WARRANTS................... 6
ARTICLE V REGISTRATION, EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES............ 10
Section 5.1 REGISTRATION, EXCHANGE AND TRANSFER OF
WARRANT CERTIFICATES................................................. 10
Section 5.2 MUTILATED, DESTROYED, LOST OR STOLEN
WARRANT CERTIFICATES................................................. 10
Section 5.3 PERSONS DEEMED OWNERS................................................ 11
Section 5.4 CANCELLATION OF WARRANT CERTIFICATES................................. 11
ARTICLE VI OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES............... 11
Section 6.1 NO RIGHTS AS SHAREHOLDER CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES..................................... 11
Section 6.2 HOLDER OF WARRANT CERTIFICATE MAY
ENFORCE RIGHTS....................................................... 11
ARTICLE VII CONCERNING THE COMPANY AS WARRANT AGENT.............................................. 12
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Section 7.1 WARRANT AGENT...........................................................12
Section 7.2 DOCUMENTS...............................................................12
ARTICLE VIII MISCELLANEOUS...........................................................................12
Section 8.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS.....................12
Section 8.2 RIGHTS AND DUTIES OF SUCCESSOR
CORPORATION.............................................................12
Section 8.3 AMENDMENT...............................................................12
Section 8.4 NOTICES TO WARRANTHOLDERS...............................................13
Section 8.5 ADDRESSES...............................................................13
Section 8.6 GOVERNING LAW...........................................................13
Section 8.7 DELIVERY OF PROSPECTUS..................................................13
Section 8.8 OBTAINING OF GOVERNMENTAL APPROVALS.....................................13
Section 8.9 PERSONS HAVING RIGHTS UNDER WARRANT
AGREEMENT...............................................................14
Section 8.10 HEADINGS................................................................14
Section 8.11 COUNTERPARTS............................................................14
Section 8.12 INSPECTION OF AGREEMENT.................................................14
Section 8.13 TRANSFERS IN COMPLIANCE WITH
APPLICABLE LAW..........................................................14
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Testimonium
Signatures
Exhibit A - Form of Warrant Certificate
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AMENDED AND RESTATED WARRANT AGREEMENT
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THIS AMENDED AND RESTATED WARRANT AGREEMENT, effective as of February 24,
1998 (the "Agreement"), between Weeks Corporation, a Georgia corporation (the
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"Company"), and Xxxxxxx Xxxxxx, an individual resident of the State of Florida
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("Codina Group").
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WHEREAS, the Company and Codina entered into that certain Warrant Agreement
dated as of February 4, 1998 (the "Prior Agreement"), pursuant to which the
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Company issued and sold to the Codina warrant certificates (such warrant
certificates and other warrant certificates issued pursuant to the Prior
Agreement collectively referred to herein as the "Warrant Certificates" and
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individually as a "Warrant Certificate") evidencing 70,000 warrants
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(collectively, the "Warrants" or, individually, a "Warrant") representing the
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right to purchase an aggregate of 70,000 shares of the Company's Common Stock;
WHEREAS, the Company is the warrant agent in connection with the issuance,
exchange, exercise and replacement of the Warrant Certificates; and
WHEREAS, the Prior Agreement set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions upon which
they may be issued, exchanged, exercised and replaced, and the Company and
Codina desire to amend and restate the Prior Agreement in its entirety pursuant
to this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. For the purposes of this Agreement, the
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following terms have the meanings set forth below:
"Affiliate" has the same meaning as in Rule 12b-2 promulgated under
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the Exchange Act.
"Agreement" is defined in the Recitals.
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"Business Day" means any day which is neither a Saturday or Sunday nor
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a legal holiday on which banks are authorized or required to be closed in
Atlanta, Georgia.
"Codina Group" is defined in the Recitals.
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"Common Stock" means shares now or hereafter authorized of any class
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of common stock of the Company and any other capital stock of the Company,
however designated, that has the right (subject to any prior rights of the
Company's 8.00% Series A Cumulative Redeemable Preferred Stock and any other
class or series of preferred stock issued by the Company) to participate in any
distribution of the assets upon voluntary or involuntary liquidation,
dissolution or winding up of the Company or in the earnings of the Company
without limit as to per share amount, and shall include, without limitation, the
presently authorized 100,000,000 shares of the Company's common stock, par
value $.01 per share.
"Company" is defined in the Recitals.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exercise Price" means $32.75 per share of Common Stock issuable upon
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exercise of the Warrants, as adjusted from time to time in accordance with this
Agreement.
"Expiration Date" is defined in Section 3.2.
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"Governmental Authority" means any nation or government, any state or
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other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holder" is defined in Section 2.6.
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"Market Price" is defined in Section 4.1(e).
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"NYSE" is defined in Section 4.1(e).
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"Person" means any natural person, corporation, partnership, limited
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liability company, firm, association, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other capacity.
"Securities Act" means the Securities Act of 1933, as amended.
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"State" means any State of the United States or the District of
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Columbia.
"Transfer Agent" is defined in Section 3.4.
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"Valuation Date" is defined in Section 4.1(h).
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"Warrant" or "Warrants" is defined in the Recitals.
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"Warrant Certificate" or "Warrant Certificates" is defined in the
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Recitals.
"Warrant Register" is defined in Section 5.1.
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ARTICLE II
ISSUANCE AND EXECUTION
OF WARRANT CERTIFICATES
Section II.1 ISSUANCE OF WARRANT CERTIFICATES. Upon issuance, each
Warrant Certificate shall evidence one or more Warrants. Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase one (1) share of Common Stock.
Section II.2 FORM OF WARRANT CERTIFICATE. The Warrant Certificates
(including the Form(s) of Exercise and Assignment to be set forth on the reverse
thereof) shall be in substantially the form set forth in Exhibit A hereto, shall
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be printed, lithographed or engraved on steel engraved borders (or in any other
manner determined by the officers executing such Warrant Certificates, with the
execution thereof by such officers conclusively evidencing such determination)
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be listed or as
may, consistently herewith, be determined by the officers executing such Warrant
Certificates, with the execution thereof by such officers conclusively
evidencing such determination.
Section II.3 EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. The Warrant
Certificates shall be executed on behalf of the Company by its Chairman and
Chief Executive Officer, its President or its Chief Financial Officer, under its
corporate seal reproduced thereon attested to by its Treasurer or Secretary. The
signature of any of these officers on the Warrant Certificates may be manual or
facsimile.
Warrant Certificates evidencing the right to purchase a number of shares
of Common Stock having an aggregate par value not exceeding $700.00 (except as
provided in Sections 2.4, 3.3(b), 5.1 and 5.2) may be executed and delivered by
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the Company upon the execution of this Warrant Agreement or from time to time
thereafter. Subsequent to such original issuance of the Warrant Certificates,
the Company shall execute and deliver a Warrant Certificate only if the Warrant
Certificate is issued in exchange or in substitution for one or more previously
executed and delivered Warrant Certificates or in connection with their
transfer, as hereinafter provided.
Each Warrant Certificate shall be dated the date of its execution by the
Company.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been duly
executed by the Company. Such signature by the Company
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shall be conclusive evidence, and the only evidence, that the Warrant
Certificate so executed has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at the time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the delivery of such Warrant Certificates.
Section II.4 TEMPORARY WARRANT CERTIFICATES. Pending the preparation of
definitive Warrant Certificates, the Company may execute and deliver temporary
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, with the execution thereof by
such officers conclusively evidencing such determination.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates to the Company, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Warrant Certificates, the Company shall execute and deliver in exchange therefor
definitive Warrant Certificates representing the same aggregate number of
Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
Section II.5 PAYMENT OF TAXES. The Company will pay all stamp taxes and
other duties, if any, arising out of or related to the execution and delivery of
this Agreement or the original issuance of the Warrant Certificates, under the
laws of the United States of America or any State or political subdivision
thereof.
Section II.6 DEFINITION OF HOLDER. The term "Holder" as used herein
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shall mean the Person in whose name at the time of determination such Warrant
Certificate shall be registered upon the Warrant Register to be maintained by
the Company for that purpose pursuant to Section 5.1.
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ARTICLE III
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section III.1 WARRANT PRICE. During the period set forth in Section 3.2,
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each Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company one share of Common Stock, subject to
adjustment as provided in Article IV, at the Exercise Price.
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Section III.2 DURATION OF WARRANTS. Any Warrant evidenced by a Warrant
Certificate may be exercised by the Holder thereof at any time and from time to
time during the period beginning on August 24, 1999, and at or before 5:00 p.m.
(Atlanta time) on February 24, 2008 (the "Expiration Date"), only upon the terms
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and subject to the conditions set forth herein and in the applicable Warrant
Certificate. Each Warrant not exercised at or before 5:00 p.m. (Atlanta time)
on the Expiration Date shall become void, and all rights of the Holder of the
Warrant Certificate evidencing such Warrant under this Agreement or otherwise
shall cease.
Section III.3 EXERCISE OF WARRANTS. (a) During the period specified in
Section 3.2, any whole number of Warrants may be exercised by surrendering the
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Warrant Certificate evidencing such Warrants at the place or at the places set
forth in the Warrant Certificate, with the purchase form set forth in the
Warrant Certificate duly executed, accompanied by payment in full, in lawful
money of the United States of America, in cash or by certified check or official
bank check or by wire transfer in immediately available funds, of the Exercise
Price for each Warrant exercised. The date on which payment in full of the
Exercise Price for a Warrant and the duly executed and completed Warrant
Certificate are received by the Company shall be deemed to be the date on which
such Warrant is exercised.
(b) As soon as practicable after the exercise of any Warrants, the Company
shall issue to or upon the order of the Holder of the Warrant Certificate
evidencing such Warrants, a certificate or certificates representing the number
of shares of Common Stock to which such Holder is entitled in such name or names
as may be directed by such Holder. If fewer than all of the Warrants evidenced
by such Warrant Certificate are exercised, the Company shall execute and deliver
a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
(c) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Common Stock. In the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
shares of Common Stock until such tax or other charge shall have been paid or it
has been established to the Company's satisfaction that no such tax or other
charge is due.
Section III.4 RESERVATION OF SHARES. For the purpose of enabling it to
satisfy any obligation to issue shares of Common Stock upon exercise of
Warrants, the Company will, at all times through the close of business on the
Expiration Date, reserve and keep available, free from preemptive rights, out of
the aggregate of its authorized but unissued capital stock or its authorized and
issued capital stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Common Stock upon exercise of Warrants, the
maximum number of shares of Common Stock which may then be deliverable upon the
exercise of all outstanding Warrants. The transfer agent for shares of Common
Stock of the Company (the "Transfer Agent") and every subsequent transfer agent
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for any shares of the Company's capital stock issuable upon the exercise of the
Warrants will be irrevocably authorized and directed at all times to reserve
such number of authorized shares as shall be required for such purpose. The
Company
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will keep a copy of this Agreement on file with the Transfer Agent and with
every subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of the rights of purchase represented by the
Warrants. The Company will furnish such Transfer Agent a copy of all notices of
adjustments, and certificates related thereto, transmitted to each Holder
pursuant to Section 8.4. Before taking any action which would cause an
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adjustment pursuant to Section 4.1 to the maximum number of shares of Common
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Stock deliverable upon the exercise of all outstanding Warrants pursuant to
Section 3.3, the Company shall cause to be authorized additional shares of
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Common Stock such that the sum of such maximum number of shares of Common Stock
deliverable upon exercise of all outstanding Warrants and the number of shares
of Common Stock outstanding as of such date does not exceed the number of shares
of Common Stock authorized pursuant to the Company's Restated Articles of
Incorporation, as amended.
The Company covenants that all shares of Common Stock issued upon exercise
of the Warrants will, upon issuance in accordance with the terms of this
Agreement, be fully paid and nonassessable and free from all taxes, liens,
charges and security interests created by or imposed upon the Company with
respect to the issuance and holding thereof.
ARTICLE IV
OTHER TERMS OF WARRANTS
Section IV.1 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE OR NUMBER OF WARRANTS. The Exercise Price, the number of shares of
Common Stock purchasable upon the exercise of each Warrant and the number of
Warrants outstanding are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 4.1.
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(a) If the Company shall (i) pay a dividend in or make a distribution of
shares of its capital stock, whether shares of Common Stock or shares of its
capital stock of any other class, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue any shares of its capital
stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the number of shares of Common Stock
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the Holder of each Warrant shall be entitled to receive the
kind and number of shares of Common Stock or other securities of the Company
which such Holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event, retroactive to
immediately after the record date, if any, for such event.
(b) If the Company shall issue rights, options or warrants to all Holders
of its outstanding Common Stock, without any charge to such Holders, entitling
them to subscribe for
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or purchase shares of Common Stock at a price per share that is lower than the
Market Price per share of Common Stock (as defined in paragraph (e) below) at
the record date mentioned below, the number of shares of Common Stock thereafter
purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of shares of Common Stock theretofore purchasable upon exercise of
each Warrant by a fraction, of which the numerator shall be (i) the number of
shares of Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of additional shares of Common Stock offered
for subscription or purchase, and of which the denominator shall be (ii) the
number of shares of Common Stock outstanding on the date of issuance of such
rights, options or warrants plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered would
purchase at the Market Price per share of Common Stock at such record date. Such
adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective retroactive to immediately after the record date for
the determination of shareholders entitled to receive such rights, options or
warrants.
(c) If the Company shall distribute to all Holders of its shares of Common
Stock evidence of its indebtedness or assets (excluding cash dividends or
distributions payable out of capital surplus and dividends or distributions
referred to in paragraph (a) above) or rights, options or warrants or
convertible or exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock (excluding those referred to in paragraph (b)
above), then in each case the number of shares of Common Stock thereafter
purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of shares of Common Stock theretofore purchasable upon the exercise
of each Warrant, by a fraction, of which the numerator shall be (i) the then
current Market Price per share of Common Stock (as defined in paragraph (e)
below) on the date of such distribution, and of which the denominator shall be
(ii) the then current Market Price per share of Common Stock less the then fair
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or evidence of
indebtedness so distributed or of such subscription rights, options or warrants
or convertible or exchangeable securities applicable to one (1) share of Common
Stock. Such adjustment shall be made whenever any such distribution is made,
and shall become effective on the date of distribution retroactive to
immediately after the record date for the determination of shareholders entitled
to receive such distribution.
(d) In the event of any capital reorganization or any reclassification of
the Common Stock (except as provided in paragraphs (a) through (c) above), any
Holder of Warrants upon exercise thereof shall be entitled to receive, in lieu
of the Common Stock to which he or she would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the shares (of any
class or classes) or other securities or property of the Company that he or she
would have been entitled to receive at the same aggregate Exercise Price upon
such reorganization or reclassification if his or her Warrants had been
exercised immediately prior thereto.
(e) For the purpose of any computation under paragraphs (b) and (c) of this
Section 4.1, the current or closing Market Price per share of Common Stock at
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any date shall be deemed to be the average of the daily closing prices for the
twenty (20) consecutive trading days before
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the date of such computation. The closing price for each day shall be the last
sale price for such day, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange (the "NYSE") or if the Common
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Stock is not listed on the NYSE, then on the principal United States national
securities exchange on which the Common Stock is listed or quoted. If the Common
Stock is not listed or quoted on any United States national securities exchange,
then the current or closing market price per share of Common Stock shall be
determined by the Board of Directors of the Company in good faith.
(f) Whenever the number of shares of Common Stock purchasable upon the
exercise of each Warrant is adjusted as herein provided, the Exercise Price
payable upon the exercise of each Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of shares so purchasable immediately thereafter.
(g) The Company may elect, on or after the date of any adjustment required
by paragraphs (a) through (d) of this Section 4.1, to adjust the number of
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Warrants in substitution for an adjustment in the number of shares of Common
Stock purchasable upon the exercise of a Warrant. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be exercisable
for the same number of shares of Common Stock as immediately prior to such
adjustment. Each Warrant held of record prior to such adjustment of the number
of Warrants shall become that number of Warrants (calculated to the nearest
hundredth) obtained by dividing the Exercise Price in effect prior to adjustment
of the Exercise Price by the Exercise Price in effect after adjustment of the
Exercise Price. The Company shall notify the Holders of Warrants, in the same
manner as provided in the first paragraph of Section 8.4, of its election to
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adjust the number of Warrants, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Exercise Price is adjusted or any day
thereafter. Upon each adjustment of the number of Warrants pursuant to this
paragraph (g) the Company shall, as promptly as practicable, cause to be
distributed to Holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to paragraph (h), the additional Warrants to
which such Holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such Holders of record
in substitution and replacement for the Warrant Certificates held by such
Holders prior to the date of adjustment, and upon surrender thereof, new Warrant
Certificates evidencing all the Warrants to be executed, issued and registered
in the manner specified in Section 5.1 (and which may bear, at the option of the
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Company, the adjusted Exercise Price) and shall be registered in the names of
the Holders of record of Warrant Certificates on the record date specified in
the notice.
(h) The Company shall not be required to issue fractions of Warrants on
any distribution of Warrants to Holders of Warrant Certificates pursuant to
paragraph (g) or to distribute Warrant Certificates that evidence fractional
Warrants. In lieu of such fractional Warrants, there shall be paid to the
registered Holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
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same fraction of the current market value of a full Warrant on the trading day
immediately prior to the date on which such fractional Warrant could have been
otherwise issuable (the "Valuation Date"). For purposes of this paragraph (h),
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the current market value of a Warrant shall be the aggregate closing Market
Price on the Valuation Date (determined as set forth in paragraph (e)) of all
shares of Common Stock issuable upon exercise of one Warrant plus the fair value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive) of any other assets or securities purchasable upon exercise
of one Warrant less the Exercise Price of one Warrant.
(i) Notwithstanding any adjustment pursuant to Section 4.1 in the number of
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shares of Common Stock purchasable upon the exercise of a Warrant, the Company
shall not be required to issue fractions of shares of Common Stock upon exercise
of the Warrants or to distribute certificates which evidence fractional shares.
In lieu of fractional shares, there shall be paid to the registered Holders of
Warrant Certificates at the time such Warrant Certificates are exercised as
herein provided an amount in cash equal to the same fraction of the current
market value of one (1) share of Common Stock. For purposes of this paragraph
(i), the current market value of one (1) share of Common Stock shall be the
closing Market Price (determined as set forth in paragraph (e)) of one (1) share
of Common Stock for the trading day immediately prior to the date of such
exercise.
ARTICLE V
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section V.1 REGISTRATION, EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
The Company shall keep, at its principal executive offices, books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and transfers of outstanding Warrants (the "Warrant
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Register").
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Upon surrender at the principal executive offices of the Company of Warrant
Certificates properly endorsed or accompanied by appropriate instruments of
transfer and accompanied by written instructions for transfer or exchange, all
in form satisfactory to the Company, such Warrant Certificates may be exchanged
for other Warrant Certificates or may be transferred in whole or in part;
provided, however, that Warrant Certificates issued in exchange for or upon
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transfer of surrendered Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. No service charge
shall be made for any exchange or transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or governmental charge that may be imposed in connection with any such exchange
or transfer. Whenever any Warrant Certificates are so surrendered for exchange
or transfer, the Company shall execute and deliver to the Person or Persons
entitled thereto a Warrant Certificate or Warrant Certificates as so requested.
The Company shall not be required to effect any exchange or transfer which would
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or transfer of
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Warrant Certificates shall evidence the same obligations, and be entitled to the
same benefits under this Agreement, as the Warrant Certificates surrendered for
such exchange or transfer.
Section V.2 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES.
If any mutilated Warrant Certificate is surrendered to the Company, the Company
shall execute and deliver in exchange therefor a new Warrant Certificate of like
tenor and bearing a number not contemporaneously outstanding. If there shall be
delivered to the Company (i) evidence to its satisfaction of the destruction,
loss or theft of any Warrant Certificate and of the ownership thereof and (ii)
such security or indemnity as may be required by it to save the Company and any
agent thereof harmless, then, in the absence of notice to the Company that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute and deliver, in lieu of any such destroyed, lost or stolen Warrant
Certificate, a new Warrant Certificate of like tenor and bearing a number not
contemporaneously outstanding. Upon the issuance of any new Warrant Certificate
under this Section 5.2, the Company may require the payment of a sum sufficient
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to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith. Every new Warrant
Certificate issued pursuant to this Section 5.2 in lieu of any destroyed, lost
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or stolen Warrant Certificate shall evidence an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly issued hereunder. The provisions of this Section
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5.2 are exclusive and shall preclude (to the extent lawful) all other rights and
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remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Warrant Certificates.
Section V.3 PERSONS DEEMED OWNERS. Prior to due presentment of a
Warrant Certificate for registration of transfer, the Company and all other
Persons may treat the Holder as the owner thereof for any purpose and as the
Person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
Section V.4 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered to the Company for exchange, transfer or exercise of the
Warrants evidenced thereby shall be promptly canceled by it and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. The
Company shall promptly cancel any Warrant Certificates previously issued
hereunder which the Company may have acquired in any manner whatsoever.
-10-
ARTICLE VI
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section VI.1 NO RIGHTS AS SHAREHOLDER CONFERRED BY WARRANTS OR WARRANT
CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby shall entitle
the Holder thereof to any of the rights of a shareholder, including, without
limitation, the right to receive dividends.
Section VI.2 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of any shareholder or the Holder of any
other Warrant Certificate, may, on its own behalf and for its own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce or otherwise in respect of its right to exercise
the Warrant or Warrants evidenced by his or her Warrant Certificate in the
manner provided in the Warrant Certificates and in this Agreement.
ARTICLE VII
CONCERNING THE COMPANY AS WARRANT AGENT
Section VII.1 WARRANT AGENT. The Company shall serve as warrant agent in
respect of the Warrants and the Warrant Certificates upon the terms and subject
to the conditions herein set forth. The Company shall have the power and
authority granted to and conferred upon it in the Warrant Certificates. All of
the terms and provisions with respect to such power and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section VII.2 DOCUMENTS. The Company shall be protected and shall incur
no liability for or in respect of any action taken or omitted by it in reliance
upon any notice, direction, consent, certificate, affidavit, statement or other
paper or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
-11-
ARTICLE VII
MISCELLANEOUS
Section VII.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may
consolidate with, or sell or convey all or substantially all of its assets to,
or merge with or into any other corporation, provided that in any such case,
either the Company shall be the continuing corporation, or the corporation (if
other than the Company) formed by such consolidation or into which the Company
is merged or the corporation which acquired by purchase or conveyance all or
substantially all of the assets of the Company shall expressly assume the
obligations of the Company hereunder.
Section VII.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein, and the predecessor corporation, except in the event of a
lease, shall be relieved of any further obligation under this Agreement and the
Warrants. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
shares of Common Stock issuable pursuant to the terms hereof.
Section VII.3 AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the Holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making such provisions in regard to
matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided, however, that such action shall not adversely
-------- -------
affect the interests of the Holders of the Warrant Certificates in any material
respect. Any amendment or supplement to this Agreement or the Warrants that has
a material adverse effect on the interests of Holders of any series of Warrants
shall require the written consent of the Holders of a majority of the then
outstanding Warrants of such series. The consent of each Holder of a Warrant
affected shall be required for any amendment pursuant to which the Exercise
Price would be increased or the number of shares of Common Stock purchasable
upon exercise of Warrants would be decreased.
Section VII.4 NOTICES TO WARRANTHOLDERS. Upon any adjustment of the
number of shares purchasable upon exercise of each Warrant, the Exercise Price
or the number of Warrants outstanding pursuant to Section 4.1, the Company
-----------
within ten (10) Business Days thereafter shall cause to be given to each of the
Holders of the Warrant Certificates written notice of such adjustments, together
with a copy of a certificate of the Chief Financial Officer of the Company
setting forth the Exercise Price and either the number of shares of Common Stock
and other securities or assets purchasable upon exercise of each Warrant or the
additional number of Warrants to be issued for each previously outstanding
Warrant, as the case may be, after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
adjustments are made, which certificate shall be conclusive evidence of the
-12-
correctness of the matters set forth therein, at such Holder's address appearing
on the Warrant Register written notice of such adjustments by first-class mail,
postage prepaid.
Section VII.5 ADDRESSES. Any communications to the Company with respect
to this Agreement shall be addressed to Weeks Corporation, 0000 Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer. Any communications
to any Holder shall be addressed to such Holder at its address appearing on the
Warrant Register.
Section VII.6 GOVERNING LAW. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of Georgia.
Section VII.7 DELIVERY OF PROSPECTUS. Upon the exercise of any Warrant
Certificate, the Company will deliver to the person designated to receive a
certificate representing shares of Common Stock, prior to or concurrently with
the delivery of such securities, a Prospectus.
Section VII.8 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of Governmental
Authorities and securities acts filings under United States Federal and state
laws (including, without limitation, to the extent required, the maintenance of
the effectiveness of a registration statement in respect of the Common Stock
under the Securities Act), which may be or become required in connection with
exercise of the Warrant Certificates.
Section VII.9 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Agreement expressed or implied and nothing that may be inferred from any of
the provisions herein is intended, or shall be construed, to confer upon, or
give to, any Person other than the Company and the Holders of the Warrant
Certificates any right, remedy or claim under or by reason of this Agreement or
of any covenant, condition, stipulation, promise or agreement hereof. All
covenants, conditions, stipulations, promises and agreements contained in this
Agreement shall be for the sole and exclusive benefit of the Company and its
successors and of the Holders of the Warrant Certificates.
Section VIII.10 HEADINGS. The Article and Section headings herein and the
Table of Contents are for convenience of reference only and shall not affect the
construction hereof.
Section VIII.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section VIII.12 INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal executive offices of the
Company for inspection by the Holder of any Warrant Certificate. The Company may
require such Holder to submit its Warrant Certificate for inspection by it.
-13-
Section 8.13 TRANSFERS IN COMPLIANCE WITH APPLICABLE LAW. Notwithstanding
anything in this Agreement to the contrary, no Warrant evidenced by a Warrant
Certificate may be sold, assigned, pledged or otherwise transferred by the
Holder thereof if such sale, assignment, pledge or other transfer is in
violation of applicable law, including, without limitation, any federal or state
securities laws.
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective as of the day and year first above written.
WEEKS CORPORATION
By:_____________________________
Name:
Title:
CODINA GROUP, INC.
By:_____________________________
Name:
Title:
-15-
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
EXERCISABLE ONLY IF EXECUTED AND DELIVERED
BY THE COMPANY AS PROVIDED HEREIN
VOID AFTER 5:00 P.M. (ATLANTA TIME) ON FEBRUARY 24, 2008
WEEKS CORPORATION
Warrant Certificate representing
Warrants to purchase
Common Stock
as described herein.
____________________________
No. __________________ _________ Warrants
This certifies that ____________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
registered owner to purchase one (1) share of common stock, par value $.01 per
share ("Common Stock") of Weeks Corporation (the "Company"), subject to
adjustment as provided in Article IV of the Warrant Agreement referred to
herein, during the period set forth herein on the following basis. The Warrants
shall remain exercisable at any time and from time to time during the period
beginning on August 24, 1999, and at or before 5:00 p.m. (Atlanta time) February
24, 2008. During such period, each Warrant shall entitle the Holder thereof,
subject to the provisions of the Warrant Agreement (as defined below), to
purchase from the Company one share of Common Stock at the exercise price of
$32.75, subject to adjustment as provided in Article IV of the Warrant Agreement
referred to herein (the "Exercise Price"). The Holder of this Warrant
Certificate may exercise the Warrants evidenced hereby, in whole or in part, by
surrendering this Warrant Certificate, with the purchase form set forth hereon
duly completed, accompanied by payment in full, in lawful money of the United
States of America, in cash or by certified check or official bank check or by
bank wire transfer in immediately available funds, the Exercise Price for each
Warrant exercised, to the Company, at the principal executive offices of the
Company, or its successor, as warrant agent (the "Warrant Agent"), the addresses
specified on the reverse hereof and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement.
The term "Holder" as used herein shall mean the person in whose name at the
time of determination such Warrant Certificate shall be registered upon the
books to be maintained by the Company for that purpose pursuant to Section 5.1
of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase shares of Common Stock. Upon any exercise of fewer than
all of the Warrants
A-1
evidenced by this Warrant Certificate, there shall be issued to the registered
owner hereof a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Amended
and Restated Warrant Agreement dated effective as of February 24, 1998 (the
"Warrant Agreement"), between the Company and Codina Group, Inc. and is subject
to the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the Holder of this Warrant Certificate consents by
acceptance hereof. Copies of the Warrant Agreement are on file at the above-
mentioned offices of the Company.
This Warrant Certificate and all rights hereunder, may be transferred when
surrendered at the principal executive offices of the Company by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.
After execution and delivery by the Company and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
principal executive offices of the Company for Warrant Certificates representing
the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof to
any of the rights of a shareholder of the Company, including, without
limitation, the right to receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any purpose
until executed and delivered by the Company.
A-2
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: ________________, 1998 WEEKS CORPORATION
Attest:
By:_______________________________
Name:
Title:
____________________________
Secretary
A-3
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay in cash or by certified check or official bank check or by
wire transfer in immediately available funds, the Exercise Price in full for
each of the Warrants exercised, to Weeks Corporation, 0000 Xxxx Xxxxx, Xxxxxxxx,
Xxxxxxx 00000; Attn: Chief Financial Officer, which payment should specify the
name of the Holder of this Warrant Certificate and the number of Warrants
exercised by such Holder. In addition, the Holder of this Warrant Certificate
should complete the information required below and present in person or mail by
registered mail this Warrant Certificate to the Company at the address set forth
below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants, represented
by this Warrant Certificate, to purchase _________ shares of Common Stock, par
value $.01 per share ("Common Stock"), of Weeks Corporation and represents that
he or she has tendered payment for such shares of Common Stock in cash or by
certified check or official bank check or by bank wire transfer in immediately
available funds to the order of Weeks Corporation, c/o Chief Financial Officer,
in the amount of $________ in accordance with the terms hereof. The undersigned
requests that said shares of Common Stock be registered in such names and
delivered, all as specified in accordance with the instructions set forth below.
If said number of shares of Common Stock is less than all of the shares of
Common Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of the Warrants evidenced hereby
be issued and delivered to the undersigned unless otherwise specified in the
instructions below.
A-4
Dated:______________________ Name:_________________________
(Please Print)
____________________________ Address:
Insert Social Security or Other _______________________________
Identifying Number of Holder) _______________________________
_______________________________
___________________________
Signature
(Signature must conform in all
respects to name of Holder as specified on
the face of this Warrant Certificate and must
bear a signature guarantee by a bank, trust
company or member broker of the New York,
Chicago or Pacific Stock Exchange.)
This Warrant may be exercised by hand or by mail
at the following address:
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
(Instructions as to form and delivery of
certificates representing shares of Common Stock
and/or Warrant Certificates):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________.
A-5
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED, _______________________________ hereby sells, assigns
and transfers unto
___________________________
___________________________
___________________________
Please print name and address
(including zip code)
Please insert social security or
other identifying number
___________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ________________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:_____________________ _____________________________
Signature
(Signature must conform in all respects
to name of Holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York, Chicago or Pacific Stock
Exchange.)
Signature Guaranteed:
__________________________
A-6
Agreement dated December 31, 1996 by and among the Company and Xxxxxx X.
Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx, Xxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxx
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 Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx,
Xxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxx 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., Xxxxxxx & Company Real
Estate, Inc., Xxxx X. Xxxxxx, Xx. and Xxxxxx X. Xxxxxxx, Xx., 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
Xxxxxxx & 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
-----------------------------------
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,
--------
however, that if the holders requesting registration are doing so pursuant to
-------
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
-------------------
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.
-10-
6. Indemnification; Contribution.
-----------------------------
(a) Indemnification by the Company. The Company agrees to indemnify and
------------------------------
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)
-------- -------
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
-11-
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
-------- -------
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,
-12-
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
-13-
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
-------
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 0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, 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
-------- -------
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
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or intended beneficiaries of this Agreement
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(e) Counterparts. This Agreement may be executed in any number of
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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.
(g) Governing Law. This Agreement shall be governed by and construed in
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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:
XXXXXX XXXXXX 0000 XXXXXXXX
FUND, L.P.
By: Xxxxxxx Sachs Management Partners, L.P., its General Partner
By: Xxxxxxx Xxxxx Management,
Inc., its
General Partner
By:______________________________
Name:
Title:
