1
EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of September 3, 1999
(this "Agreement"), is entered into by and among Post Properties, Inc., a
Georgia corporation (the "Company" or the "REIT"), Post Apartment Homes, L.P.,
a Georgia limited partnership (the "Operating Partnership"), and TMCT II, LLC,
a Delaware limited liability company ("TMCT").
RECITALS
WHEREAS, in connection with the offering of 2,800,000 8% Series D
Cumulative Redeemable Preferred Units of the Operating Partnership (the
"Units"), The Times Mirror Company, a Delaware corporation (the "Contributor"),
will contribute to the Operating Partnership cash, in return for which the
Operating Partnership will issue the Units to TMCT on terms and conditions set
forth in the Contribution Agreement, dated as of September 3, 1999 (the
"Contribution Agreement"), by and among the Company, the Operating Partnership,
the Contributor and TMCT;
WHEREAS, each of the parties hereto agree that the rights, benefits
and obligations under this Agreement shall be fully assignable to any Person
(as defined below) to whom TMCT transfers its Units pursuant to the terms and
conditions of the Partnership Agreement (as defined below);
WHEREAS, pursuant to the Partnership Agreement, the Units owned by
TMCT will be redeemable for cash or exchangeable for shares of the Company's 8%
Series D Cumulative Redeemable Preferred Stock (the "Preferred Stock") upon the
terms and subject to the conditions contained therein; and
WHEREAS, in order to induce the Contributor and TMCT to enter into the
Contribution Agreement, the Company and the Operating Partnership have agreed
to provide the registration rights set forth herein to TMCT and any subsequent
holder or holders of the Units.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. In addition to the definitions set forth
above, the following terms, as used herein, shall have the following meanings:
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control" when used with respect
to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
2
"Agreement" has the meaning given to such term in the initial
paragraph hereto.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York or Los Angeles, California are
authorized by law to close.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time or any successor statute thereto, as interpreted by the applicable
regulations thereunder.
"Commission" means the Securities and Exchange Commission.
"Company" means Post Properties, Inc., a Georgia corporation.
"Contribution Agreement" shall have the meaning given to such term in
the recitals hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"General Partner" means Post GP Holdings, Inc., a Georgia corporation
and a wholly owned subsidiary of the Company, or its successors as general
partner of the Operating Partnership.
"Holder" means (i) TMCT and (ii) any other Person who is the record or
beneficial owner of any Registrable Security or any assignee or transferee of
such Registrable Security (including assignments or transfers of Registrable
Securities to such assignees or transferees as a result of the foreclosure on
any loans secured by such Registrable Securities) unless such Registrable
Security is acquired in a public distribution pursuant to a registration
statement under the Securities Act or pursuant to transactions exempt from
registration under the Securities Act, in each such case where securities sold
in such transaction may be resold without subsequent registration under the
Securities Act.
"Incapacitated" shall have the meaning set forth in the Partnership
Agreement.
"Indemnified Party" shall have the meaning set forth in Section 2.6
hereof.
"Indemnifying Party" shall have the meaning set forth in Section 2.6
hereof.
"Inspectors" shall have the meaning set forth in Section 2.2(g).
"NASD" shall have the meaning set forth in Section 2.2(d) hereof.
"Operating Partnership" shall have the meaning given to such term in
the initial paragraph hereto.
"Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of the Operating Partnership, dated as of
October 24, 1997, as the same may be amended, modified or restated from time to
time.
2
3
"Person" means an individual or a corporation, partnership, limited
liability company, association, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" shall have the meaning given to such term in the
recitals hereof.
"REIT" means a real estate investment trust under Section 856 through
Section 860 of the Code.
"Records" shall have the meaning set forth in Section 2.2(g) hereof.
"Registrable Securities" means shares of Preferred Stock at any time
owned, either of record or beneficially, by any Holder and no matter how
acquired (including, without limitation, shares of Preferred Stock issued or
issuable upon exchange of Units or issued or issuable by way of stock dividend
or stock split, or in connection with a merger, consolidation, combination of
shares, recapitalization or other reorganization and any other securities
issued pursuant to any other distribution with respect to the Preferred Stock
or in exchange for or replacement of such Preferred Stock) until (i) a
registration statement covering such securities has been declared effective by
the Commission and such shares have been sold or transferred pursuant to such
effective registration statement, (ii) such shares are sold under circumstances
in which all of the applicable conditions of Rule 144 under the Securities Act
(or any similar provisions then in force) are met or under which such shares
may be sold pursuant to Rule 144(k) under the Securities Act or (iii) such
shares have been otherwise transferred in a transaction that would constitute a
sale thereof under the Securities Act, the Company has delivered a new
certificate or other evidence of ownership for such shares not bearing the
Securities Act restricted stock legend and such shares may be resold without
subsequent registration under the Securities Act.
"Registration Expenses" shall have the meaning set forth in Section
2.3 hereof.
"Rule 144" means Rule 144 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of the Company of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" means Rule 415 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
3
4
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement under the Securities Act pursuant to this
Agreement.
"Shelf Registration" shall have the meaning set forth in Section 2.1
hereof.
"Shelf Registration Statement" means any registration statement
relating to a Shelf Registration that covers any of the Preferred Stock of the
Company filed with the Commission under the Securities Act, including the
prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
"Units" shall have the meaning given to such term in the recitals
hereof.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. SHELF REGISTRATION.
The Company shall prepare and file a "shelf" registration statement
(the "Shelf Registration Statement") with respect to the Registrable Securities
covering the resale thereof by the Holders on an appropriate form for an
offering to be made on a continuous or delayed basis pursuant to Rule 415 (the
"Shelf Registration") within 60 days after each date on which all or any
portion of the Units are exchanged for shares of Preferred Stock and shall use
its reasonable best efforts to cause the Shelf Registration Statement to be
declared effective within 120 days after the date of such exchange. The Company
shall use its reasonable best efforts to keep such Shelf Registration Statement
continuously effective until the earliest of (A) such time as all of the
Registrable Securities have been sold pursuant to the Shelf Registration
Statement or Rule 144 and (B) the date on which all of the Registrable
Securities may be sold without volume restrictions in accordance with Rule 144.
SECTION 2.2. REGISTRATION PROCEDURES; FILINGS; INFORMATION. In
connection with any Shelf Registration Statement under Section 2.1 hereof, the
Company will use its reasonable best efforts to effect the registration and the
sale of such Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with any such
request:
(a) As provided in Section 2.1 hereof, the Company will
as expeditiously as reasonably possible prepare and file with the Commission a
registration statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which form shall be
available for the sale by the Selling Holders to be registered thereunder in
accordance with the intended method of distribution thereof and which
4
5
shall comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the Commission to be filed therewith, and use its
reasonable best efforts to cause such filed registration statement to become
and remain effective.
(b) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
notify each Holder of Registrable Securities that a Shelf Registration
Statement is being filed and advise such Holder that an offering of Registrable
Securities will be made in accordance with the method elected (which method may
also include an underwritten offering) by the Holders of a majority of the
Registrable Securities, furnish to each Selling Holder and each Underwriter, if
any, of the Registrable Securities covered by such registration statement or
prospectus copies of such registration statement or prospectus or any amendment
or supplement thereto as proposed to be filed, and thereafter furnish to such
Selling Holder and Underwriter, if any, such number of conformed copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Selling Holder or
Underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Selling Holder.
(c) The Company will notify each Holder of Registrable
Securities and counsel for such Holder promptly and, if requested by such
Holder or counsel, confirm such advice in writing promptly (i) when a
registration statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
Commission or any state securities authority for post-effective amendments and
supplements to a registration statement that has become effective, (iii) of the
issuance by the Commission 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, (iv) if, during the period a registration
statement is effective, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to such offering cease to be true and
correct in all material respects, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (vi) of any determination
by the Company that a post-effective amendment to a registration statement
would be appropriate.
(d) The Company will use its reasonable best efforts to
(i) register or qualify the Registrable Securities under such other securities
or blue sky laws of such jurisdictions in the United States (where an exemption
is not available) as any Selling Holder or managing Underwriter or
Underwriters, if any, reasonably (in light of such Selling Holder's intended
plan of distribution) requests by the time the registration statement relating
thereto is declared effective by the Commission and (ii) cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities, including the National Association of Securities
Dealers ("NASD"), as may be necessary by virtue of the business and operations
of the Company and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Selling Holder to consummate the
disposition of the
5
6
Registrable Securities owned by such Selling Holder; provided that the Company
will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (d), (B) subject itself to taxation in any such jurisdiction or (C)
consent to general service of process in any such jurisdiction except as may be
required by the Securities Act.
(e) The Company will immediately notify each Selling
Holder or Underwriter of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus and shall file with the Commission such amendments
and supplements to such prospectus and deliver copies of the same to the
Selling Holders or Underwriters, as the case may be, so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances then existing, not misleading and
promptly make available to each Selling Holder a reasonable number of copies of
any such supplement or amendment.
(f) The Company will enter into customary agreements
(including an underwriting agreement or securities sale agreement, if any, in
customary form) containing such representations and warranties to the Holders
of such Registrable Securities and the Underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them and take such
other actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities.
(g) The Company will make available for inspection by
any Selling Holder of such Registrable Securities, any Underwriter
participating in any disposition pursuant to such registration statement and
any attorney, accountant or other professional retained by any such Selling
Holder or Underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any Inspector in connection with such registration statement.
Records which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. Each Selling Holder agrees that information
obtained by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company or its Affiliates or otherwise disclosed by it unless
and until such is made generally available to the public. Each Selling Holder
further agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its sole expense, to undertake appropriate action to
prevent disclosure of the Records that are deemed confidential.
6
7
(h) The Company will furnish to each Selling Holder and
to each Underwriter, if any, a signed counterpart, addressed to such Selling
Holder or Underwriter, of (i) an opinion or opinions of counsel to the Company
and (ii) a comfort letter or comfort letters from the Company's independent
public accountants (to the extent permitted by the standards of the American
Institute of Certified Public Accountants), each in customary form and covering
such matters of the type customarily covered by opinions or comfort letters, as
the case may be, as the Holders of a majority of the Registrable Securities
included in such offering or the managing Underwriter or Underwriters therefor
reasonably request.
(i) The Company will otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the Commission,
and make available to its securityholders, as soon as reasonably practicable,
an earnings statement covering a period of twelve (12) months, beginning within
three (3) months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder (or any
successor rule or regulation hereafter adopted by the Commission).
(j) The Company will use its reasonable best efforts to
cause all such Registrable Securities to be listed on each securities exchange
on which similar securities issued by the Company are then listed.
(k) The Company will use its reasonable best efforts to
obtain CUSIP numbers for the Preferred Stock not later than the effective date
of the Shelf Registration Statement.
The Company may require, as a condition precedent to the obligations
of the Company under the Agreement, each Selling Holder to promptly furnish in
writing to the Company such information regarding such Selling Holder, the
Registrable Securities held by it and the intended method of distribution of
the Registrable Securities as the Company may from time to time reasonably
request and such other information as may be legally required in connection
with such registration.
Each Selling Holder agrees that, upon receipt of any written notice
from the Company of the occurrence of any event of the kind described in
Section 2.2(e) hereof, such Selling Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
and prospectus covering such Registrable Securities until such Selling Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 2.2(e) hereof, and, if so directed by the Company, such Selling Holder
will deliver to the Company all copies, other than permanent file copies then
in such Selling Holder's possession, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice. In the event
the Company shall give such notice, the Company shall extend the period during
which such registration statement shall be maintained effective by the number
of days during the period from and including the date of the giving of notice
pursuant to Section 2.2(e) hereof to the date when the Company shall make
available to the Selling Holders a prospectus supplemented or amended to
conform with the requirements of Section 2.2(e) hereof. Each Selling Holder
agrees that it will immediately notify the Company at any time when a
prospectus
7
8
relating to the registration of such Registrable securities is required to be
delivered under the Securities Act of the occurrence of an event as a result of
which information previously furnished by such Selling Holder to the Company in
writing for inclusion in such prospectus contains an 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 in
which they were made, not misleading.
SECTION 2.3. REGISTRATION EXPENSES. In connection with any
registration statement required to be filed hereunder, the Company shall pay
the following registration expenses incurred in connection with the
registration hereunder (the "Registration Expenses"): (i) all Commission, stock
exchange, NASD or other registration and filing fees, (ii) fees and expenses of
compliance with securities or blue sky laws and compliance with the rules of
the NASD (including reasonable fees and disbursements of U.S. and local counsel
for any Underwriters and Holders in connection with blue sky qualifications of
the Registrable Securities), (iii) printing expenses of any Persons in
preparing and distributing any Shelf Registration Statement, any prospectus,
any amendments or supplements thereto, any underwriting agreements, securities
sales agreements, certificates representing the Preferred Stock and any other
document relating to the performance of, and compliance with, this Agreement,
(iv) internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
(v) the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange, (vi) reasonable fees and
disbursements of counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company (including the
expenses of any special audits or comfort letters or costs associated with
compliance with such special audits or with the delivery by independent
certified public accountants of a comfort letter or comfort letters requested
pursuant to Section 2.2(h) hereof), (vii) the reasonable fees and expenses of
any special experts retained by the Company in connection with such
registration and (viii) reasonable fees and expenses of one counsel (who shall
be reasonably acceptable to the Company) for the Selling Holders. Except as
expressly provided in the preceding sentence, the Company shall have no
obligation to pay any underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities, or any out-of-pocket expenses of the
Holders (or the agents who manage their accounts) or any transfer taxes
relating to the registration or sale of the Registrable Securities.
SECTION 2.4. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Selling Holder, its officers, directors and
agents, and each Person, if any, who controls such Selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages, expenses and liabilities
caused by any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or
8
9
omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by such Selling Holder or on such Selling
Holder's behalf expressly for inclusion therein. The Company also agrees to
indemnify any Underwriters of the Registrable Securities, their officers and
directors and each Person who controls such Underwriters within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 2.4, provided that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit of
any Underwriter of the Registrable Securities from whom the Person asserting
any such losses, claims, damages or liabilities purchased the Registrable
Securities which are the subject thereof if (i) such Person did not receive a
copy of the prospectus (or the prospectus as supplemented) at or prior to the
confirmation of the sale of such Registrable Securities to such Person in any
case where such delivery is required by the Securities Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the prospectus (or the prospectus as supplemented),
provided that such Underwriter received prior notice that such prospectus (or
the prospectus as supplemented) corrected such untrue statement or omission of
a material fact; or (ii) such Person received a prospectus at or prior to the
confirmation of the sale of such Registrable Securities to such Person during
the period when the use of such prospectus has been suspended in accordance
with Section 2.2, provided that such Underwriter received prior notice of such
suspension.
SECTION 2.5. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
Each Selling Holder agrees, severally but not jointly, to indemnify and hold
harmless the Company, its officers, directors and agents and each Person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Selling Holder, but only with
respect to information relating to such Selling Holder furnished in writing by
such Selling Holder or on such Selling Holder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against the Company or its officers,
directors or agents or any such controlling person, in respect of which
indemnity may be sought against such Selling Holder, such Selling Holder shall
have the rights and duties given to the Company, and the Company or its
officers, directors or agents or such controlling person shall have the rights
and duties given to such Selling Holder, by Section 2.6 hereof. In no event
shall the liability of Holder hereunder be greater in amount than the gross
dollar amount of the proceeds received by Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
SECTION 2.6. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Sections 2.4 or 2.5 hereof, such Person (an "Indemnified Party") shall promptly
notify the Person against whom such indemnity may be sought (an "Indemnifying
Party") in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel
9
10
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Party and the Indemnified Party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnified Party and the Indemnifying
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred.
In the case of any such separate firm for the Indemnified Parties, such firm
shall be designated in writing by (i) in the case of Persons indemnified
pursuant to Section 2.4 hereof, by the Selling Holders which owned a majority
of the Registrable Securities sold under the applicable registration statement
and (ii) in the case of Persons indemnified pursuant to Section 2.5 hereof, by
the Company. The Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Party shall have requested an Indemnifying Party to reimburse
the Indemnified Party for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than thirty (30) Business
Days after receipt by such Indemnifying Party of the aforesaid request and (ii)
such Indemnifying Party shall not have reimbursed the Indemnified Party in
accordance with such request prior to the date of such settlement. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in which
any Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
arising out of such proceeding.
SECTION 2.7. CONTRIBUTION. If the indemnification provided for in
Sections 2.4 or 2.5 hereof is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities
(i) as between the Company and the Selling Holders on the one hand and the
Underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Holders on the one
hand and the Underwriters on the other from the offering of the securities, or
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) as between the Company on the one
hand and each Selling Holder on the other, in such proportion as is appropriate
to reflect the relative fault of the Company and of each Selling Holder in
connection with such statements or omissions
10
11
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Holders on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling Holders bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the prospectus. The
relative fault of the Company and the Selling Holders on the one hand and of
the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Selling Holders or by the
Underwriters. The relative fault of the Company on the one hand and of each
Selling Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Selling Holder, and the Company's
and the Selling Holder's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 2.7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in Sections 2.4 and 2.5
hereof shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 2.7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the securities of such Selling Holder were offered to the
public exceeds the amount of any damages which such Selling Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. The Selling Holder's obligations to contribute
pursuant to this Section 2.7 are several in the proportion that the proceeds of
the offering received by such Selling Holder bears to the total proceeds of the
offering received by all the Selling Holders and not joint.
SECTION 2.8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS; OTHER
COVENANTS. No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b)
11
12
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents in customary form and reasonably
required under the terms of such underwriting arrangements and these
registration rights provided for in this Article II. Each Holder covenants and
agrees that (i) such Holder will comply with the provisions of Regulation M
promulgated by the Commission as applicable to them in connection with sales of
Registrable Securities and (ii) such Holder will comply with the prospectus
delivery requirements of the Securities Act as applicable to them in connection
with sales of Registrable Securities.
SECTION 2.9. RULE 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange
Act and that it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable Holders to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder a written statement as to whether it
has complied with such requirements.
SECTION 2.10. HOLDBACK AGREEMENTS.
(a) Restrictions on Public Sale by Holder of Registrable
Securities. To the extent not inconsistent with applicable law, each Holder
whose securities are included in a registration statement pursuant to Section
2.1 agrees, upon receipt of prior written notice from the Company received not
later than 17 days prior to the effective date of such registration statement,
not to effect any sale or distribution of the securities being registered or a
similar security of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, including a "broker's
transaction" pursuant to Rule 144, but excluding any private sale made in
reliance on Section 4(2) of the Securities Act, during the 10 days prior to,
and during the 90-day period beginning on, the effective date of such
registration statement (except as part of such registration), if and to the
extent requested in writing by the Company in the case of a non-underwritten
public offering or if and to the extent requested in writing by the managing
Underwriter or Underwriters in the case of an underwritten public offering.
(b) If the Company determines in its good faith judgment
that the filing of the Shelf Registration Statement under Section 2.1 hereof or
the use of any related prospectus would require the disclosure of non-public
material information that the Company has a bona fide business purpose for
preserving as confidential or the disclosure of which would impede the
Company's ability to consummate a material transaction, and that the Company is
not otherwise required by applicable securities laws or regulations to
disclose, upon written notice of such determination by the Company, the rights
of the Holders to offer, sell or distribute any Registrable Securities pursuant
to the Shelf Registration Statement or to require the Company to take action
with respect to the registration or sale of any Registrable Securities pursuant
to the Shelf Registration Statement shall be suspended until the earlier of (i)
the date upon which the Company notifies the Holders in writing that suspension
of such rights for the grounds set forth in this Section 2.10(b) is no longer
necessary and (ii) 45 days; provided, however, that the
12
13
Company shall only be entitled to give two (2) such notices within any twelve
month period. The Company agrees to give such notice as promptly as practicable
following the date that such suspension of rights is no longer necessary.
(c) If all reports required to be filed by the Company
pursuant to the Exchange Act have not been filed by the required date without
regard to any extension, or if the consummation of any business combination by
the Company has occurred or is probable for purposes of Rule 3-05 or Article 11
of Regulation S-X under the Securities Act, upon written notice thereof (a
"Suspension Notice") by the Company to the Holders, the rights of the Holders
to offer, sell or distribute any Registrable Securities pursuant to the Shelf
Registration Statement or to require the Company to take action with respect to
the registration or sale of any Registrable Securities pursuant to the Shelf
Registration Statement shall be suspended until the date on which the Company
has filed such reports or obtained and filed the financial information required
by Rule 3-05 or Article 11 of Regulation S-X to be included or incorporated by
reference, as applicable, in the Shelf Registration Statement, and the Company
shall notify the Holders as promptly as practicable when such suspension is no
longer required (the "Termination Notice"). In the event the Company shall give
a Suspension Notice, the Company shall extend the period during which such
Shelf Registration Statement shall be maintained effective by the number of
days during the period from and including the date of the giving of the
Suspension Notice to the date of the Termination Notice.
(d) Restrictions on Public Sale by the Company and
Others. The Company agrees without the written consent of the managing
underwriters in an underwritten offering of Registrable Securities covered by a
registration statement filed pursuant to Section 2.1 hereof, not to effect any
public sale or distribution of any shares of preferred stock of the Company or
any securities convertible into or exchangeable for preferred stock of the
Company during the period beginning ten (10) days prior to, and ending ninety
(90) days after, the closing date of each underwritten offering made pursuant
to such registration statement (provided, however, that such period shall be
extended by the number of days from and including the date of the giving of any
notice pursuant to Section 2.2(c) hereof to and including the date when each
seller of Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated
by Section 2.2(e) hereof).
ARTICLE III
MISCELLANEOUS
SECTION 3.1. REMEDIES. In addition to being entitled to exercise
all rights provided herein and granted by law, including recovery of damages,
the Holders shall be entitled to specific performance of the rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
SECTION 3.2. 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
13
14
given without the prior written consent of the Company and the Holders or any
such Holder's representative if any such Holder is Incapacitated. The parties
hereto agree to amend this Agreement as necessary to provide the parties with
substantially similar (and in any event, no less favorable) rights in the event
of the enactment by the SEC of changes to rules and regulations promulgated
under the Securities Act and the Exchange Act to the extent such changes modify
the currently existing registration scheme. No failure or delay by any party to
insist upon the strict performance of any covenant, duty, agreement or
condition of this Agreement or to exercise any right or remedy consequent upon
any breach thereof shall constitute a waiver of any such breach or any other
covenant, duty, agreement or condition.
SECTION 3.3. NOTICES. All notices and other communications in
connection with this Agreement shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to any Holder:
TMCT II, LLC
c/o The Times Mirror Company
Managing Member
Times Mirror Square
Los Angeles, California 90053
Attn: General Counsel
Facsimile Number: (213) 337-7696
with a copy to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
Attn: Peter F. Ziegler
Facsimile Number: (213) 229-7520
(2) if to the Company or the Operating Partnership:
Post Properties, Inc.
One Riverside
4401 Northside Parkway
Suite 800
Atlanta, GA 30337-3057
Attention: President
Facsimile Number: (404) 504-9388
or to such other address as the Company may hereafter specify
in writing.
14
15
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when received if
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business
day, if timely delivered to an air courier guaranteeing overnight delivery.
SECTION 3.4. SUCCESSORS AND ASSIGNS. The rights and obligations
under this Agreement shall be fully assignable to any Person to whom TMCT
transfers its Units pursuant to the terms and conditions of the Partnership
Agreement. Except as expressly provided in this Agreement, the rights and
obligations of the Holders under this Agreement shall not be assignable by any
Holder to any Person that is not a Holder. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns.
SECTION 3.5. COUNTERPARTS; FACSIMILE SIGNATURES. 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. Each party shall become bound by this Agreement immediately upon
affixing its signature hereto, which may be an original signature or facsimile
thereof.
SECTION 3.6. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Georgia
without regard to the choice of law provisions thereof.
SECTION 3.7. SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
SECTION 3.8. 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. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
SECTION 3.9. HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 3.10. NO THIRD PARTY BENEFICIARIES. Nothing express or
implied herein is intended or shall be construed to confer upon any person or
entity, other than the parties hereto and their respective successors and
assigns, any rights, remedies or other benefits under or by reason of this
Agreement.
15
16
SECTION 3.11. NO PIGGYBACK ON REGISTRATIONS. Neither the Company
nor any of its securityholders (other than the Holders of Registrable
Securities in such capacity) shall have the right to include any securities of
the Company in any registration effected under Section 2.1 hereof other than
Registrable Securities.
(Signature Page Follows)
16
17
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
Post Properties, Inc.,
a Georgia corporation
By: /s/ R. Byron Carlock, Jr.
-----------------------------------
Name: R. Byron Carlock, Jr.
Title: Executive Vice President
Post Apartment Homes, L.P.,
a Georgia limited partnership
By: Post GP Holdings, Inc.,
-----------------------------------
Its General Partner
By: /s/ R. Byron Carlock, Jr.
-----------------------------------
Name: R. Byron Carlock, Jr.
Title: Executive Vice President
TMCT II, LLC
By: The Times Mirror Company,
-----------------------------------
Its Managing Member
By: /s/ Roger H. Molvar
-----------------------------------
Name: Roger H. Molvar
Title: Senior Vice President