<PAGE> 1
As filed with the Securities and Exchange Commission on December 11, 1997
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
GABLES RESIDENTIAL TRUST
(Exact name of Registrant as specified in its charter)
Maryland 58-2077868
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2859 Paces Ferry Road
Overlook III, Suite 1450
Atlanta, Georgia 30339
(770) 436-4600
(Address, including zip code, and telephone number, including area code of
Registrant's principal executive offices)
Marcus E. Bromley
Chief Executive Officer
GABLES RESIDENTIAL TRUST
2859 Paces Ferry Road
Overlook III, Suite 1450
Atlanta, Georgia 30339
(770) 436-4600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
Copy to:
GILBERT G. MENNA, P.C.
EDWARD M. SCHULMAN, ESQ.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
----------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Shares Amount to be Proposed Maximum Proposed Maximum Amount of
Being Registered Registered Offering Price Per Share(1) Aggregate Offering Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of
Beneficial Interest, par
value $.01 per share 548,141 $27.4375 $15,039,618.69 $4,436.69
====================================================================================================================
</TABLE>
(1) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(c) based on the average of the high and low sales prices on the
New York Stock Exchange on December 9, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell nor the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PRELIMINARY PROSPECTUS DATED DECEMBER 11, 1997
SUBJECT TO COMPLETION
PROSPECTUS
548,141 SHARES
GABLES RESIDENTIAL TRUST
COMMON SHARES OF BENEFICIAL INTEREST
(PAR VALUE $.01 PER SHARE)
------------
This prospectus relates to the offer and sale from time to time of up to
548,141 common shares (the "Redemption Shares") of beneficial interest, par
value $.01 per share ("Common Shares"), of Gables Residential Trust (the
"Company") by certain holders thereof, or by pledgees, donees, transferees or
other successors in interest thereto (the "Selling Shareholders"). The Selling
Shareholders currently own 548,141 units (the "Acquired Units") of limited
partnership interest ("Units") in Gables Realty Limited Partnership (the
"Operating Partnership"), a Delaware limited partnership which the Company
controls through its ownership of the sole general partner thereof and in which
the Company owns a controlling limited partnership interest. The Redemption
Shares referred to in this Prospectus are the Common Shares that the Selling
Shareholders may acquire upon presentation by the Selling Shareholders of the
Acquired Units to the Operating Partnership for redemption, all in accordance
with the terms of the Operating Partnership's agreement of limited partnership,
as amended. The Acquired Units were issued by the Operating Partnership in
connection with the acquisition of two apartment communities by the Operating
Partnership. The Company is registering the Redemption Shares pursuant to the
Company's obligations under two registration rights agreements but the
registration of the Redemption Shares does not necessarily mean that any of the
Redemption Shares will be offered or sold by the Selling Shareholders hereunder.
The Common Shares are listed on the New York Stock Exchange (the "NYSE")
under the symbol "GBP." To ensure that the Company maintains its qualification
as a Real Estate Investment Trust (a "REIT"), ownership by any person is limited
to 9.8% of the lesser of the number or value of outstanding Common Shares, with
certain exceptions. See "Description of Securities to be Registered --
Restrictions on Transfers."
SEE "RISK FACTORS" ON PAGE 4 FOR CERTAIN FACTORS RELEVANT TO AN INVESTMENT IN
THE COMMON SHARES.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THE
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The Selling Shareholders from time to time may offer and sell any
Redemption Shares that may be acquired by them directly or through agents or
broker-dealers on terms to be determined at the time of sale. To the extent
required, the names of any agent or broker-dealer and applicable commissions or
discounts and any other required information with respect to any particular
offer will be set forth in an accompanying Prospectus Supplement. See "Plan of
Distribution." The Selling Shareholders reserve the right to accept or reject,
in whole or in part, any proposed purchase of the Redemption Shares to be made
directly or through agents.
The Selling Shareholders and any agents or broker-dealers that participate
with the Selling Shareholders in the distribution of the Redemption Shares may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), and any commission received by them and any
profit on the resale of the Redemption Shares may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Registration Rights" for
a description of certain indemnification arrangements between the Company and
the Selling Shareholders.
The Company will not receive any proceeds from the sale of the Redemption
Shares by the Selling Shareholders but has agreed to bear certain expenses of
registration of such shares under federal and state securities laws.
The date of this Prospectus is December __, 1997
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files under Exchange Act file number 1-12590 reports and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549; Midwest Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511; and Northeast Regional Office, 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such material can be obtained at the prescribed
rates from the Public Reference Section of the Commission at its principal
office in Washington, D.C. In addition, the Company files such material
electronically with the Commission, and the Commission maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants (including the Company) that file
electronically with the Commission. The Common Shares are listed on the NYSE and
such reports, proxy statements and other information concerning the Company can
also be inspected at the office of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Redemption Shares. For further
information with respect to the Company and the Redemption Shares reference is
made to the Registration Statement and exhibits thereto. Statements contained in
this Prospectus as to the contents of any contract or other documents are not
necessarily complete, and, in each instance, reference is made to the copy of
such contract or documents filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
are incorporated herein by reference: (a) Annual Report on Form 10-K for the
year ended December 31, 1996; Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997; Quarterly Report on Form 10-Q for the quarter ended June
30, 1997; and Quarterly Report on Form 10-Q for the quarter ended September 30,
1997; (b) Current Report on Form 8-K dated July 24, 1997; Current Report on Form
8-K dated September 9, 1997; Current Report on Form 8-K dated September 16,
1997; Current Report on Form 8-K dated November 24, 1997; and Current Report on
Form 8-K dated December 1, 1997; and (c) the description of the Company's Common
Shares contained in its Registration Statement on Form 8-A filed with the
Commission pursuant to the Exchange Act, including all amendments and reports
updating such description.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of
the Exchange Act prior to the filing of a post-effective amendment hereto that
indicates that all securities offered hereunder have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
in any applicable Prospectus Supplement or in any other document subsequently
filed with the Commission which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Copies of all documents which are incorporated by reference (not including
the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such document) will be provided without charge to
each person, including any beneficial owner, to whom this Prospectus is
delivered, upon written or oral request. Requests should be directed to Gables
Residential Trust, 2859 Paces Ferry Road, Overlook III, Suite 1450, Atlanta,
Georgia 30339, Attention: Chief Financial Officer (telephone number
770/436-4600).
<PAGE> 4
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information included elsewhere in this Prospectus or incorporated herein or
therein by reference. Unless the context otherwise requires, all references in
this Prospectus to the "Company" shall mean Gables Residential Trust and its
subsidiaries on a consolidated basis (including Gables Realty Limited
Partnership and its subsidiaries) or, where the context so requires, Gables
Residential Trust only, and, as the context may require, their predecessors.
"Safe Harbor" statement under the Private Securities Litigation Reform Act
of 1995: This Prospectus, including the information incorporated by reference
herein, contains forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. The words "believe," "expect," "anticipate,"
"intend," "estimate," "assume," and other similar expressions which are
predictions or indicate future events and trends and which do not relate to
historical matters identify forward-looking statements. The Company's actual
results could differ materially from those projected in the forward-looking
statements. Certain risk factors that might cause such a difference are
discussed in the section entitled "Risk Factors" on page 4 of this Prospectus,
and prospective investors should carefully consider such risk factors in
conjunction with the other information contained or incorporated by reference in
this Prospectus before making a decision to purchase any Common Shares. The
Company cautions the reader, however, that such risk factors may not be
exhaustive.
THE COMPANY
Gables Residential Trust is one of the largest owners, operators and
developers of multifamily apartment communities in the Southeastern and
Southwestern United States. The Company owns multifamily apartment communities
located in the following major cities in Georgia, Texas, Tennessee and Florida:
Atlanta, Austin, Dallas, Houston, San Antonio, Memphis, Nashville and Orlando.
The Company provides a full range of integrated real estate management,
construction and acquisition services through a staff of approximately 900
employees who have experience in property operations, development, acquisition
and construction. The Company maintains offices in Atlanta, Houston and Dallas,
each with its own fully integrated real estate staff. The finance, accounting
and administrative functions for the Company are controlled by a central staff
located in Atlanta.
The Company operates as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"). Substantially all of the
Company's business is conducted through, and all of the Company's interests in
property are held by or through, Gables Realty Limited Partnership (the
"Operating Partnership"), of which the Company is currently an 84.4% economic
owner (excluding the Company's direct or indirect ownership of 100% of the
Operating Partnership's Series A Preferred Units) and which the Company controls
through a wholly-owned subsidiary that is the sole general partner of the
Operating Partnership.
The Company's executive offices are located at 2859 Paces Ferry Road, in
Atlanta, Georgia 30339 and its telephone number is (770) 436-4600. The Company's
common shares of beneficial interest, par value $.01 per share ("Common
Shares"), are listed on the New York Stock Exchange under the symbol "GBP."
RISK FACTORS
An investment in Common Shares involves various risks, and prospective
investors should carefully consider the matters discussed under "Risk Factors"
prior to any investment in the Company.
TAX STATUS OF THE COMPANY
The Company intends at all times to operate so as to qualify as a REIT
under the Code. If and as long as the Company qualifies for taxation as a REIT,
the Company generally will not be subject to Federal income tax on that portion
of its ordinary income and capital gains that is currently distributed to its
shareholders. REITs are subject to a number of highly technical and complex
organizational and operational requirements. Although the Company believes it
has operated, and intends to continue to operate, in such a manner as to qualify
as a REIT under the Code, no assurance can be given that the Company has
qualified and will at all
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times so qualify. If the Company fails to qualify as a REIT in any taxable year,
the Company will be subject to Federal income tax (including any applicable
alternative minimum tax) on its taxable income at regular corporate rates. Even
if the Company qualifies for taxation as a REIT, the Company may be subject to
certain state and local taxes on its income and property and to Federal income
and excise taxes on its undistributed income. Certain subsidiaries of the
Company are subject to Federal and state income tax on their taxable income at
regular corporate rates. See "Federal Income Tax Considerations."
SECURITIES TO BE OFFERED
This Prospectus relates to the possible offer and sale from time to time of
548,141 Redemption Shares by the Selling Shareholders. The Redemption Shares are
Common Shares that may be issued to the Selling Shareholders in exchange for
Acquired Units owned by them. The Acquired Units were issued by the Operating
Partnership in connection with the acquisition of two apartment communities by
the Operating Partnership. The Company is registering the sale by the Selling
Shareholders of the Redemption Shares pursuant to its obligations under two
registration rights agreements.
The Company will not receive any proceeds from the sale of any Redemption
Shares.
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RISK FACTORS
An investment in Common Shares involves various risks. Prospective
investors should carefully consider the following information in conjunction
with the other information contained or incorporated by reference in this
Prospectus before making a decision to purchase Common Shares.
RISKS OF DEVELOPMENT, CONSTRUCTION AND ACQUISITION ACTIVITIES
The Company intends to actively continue development and construction of
multifamily apartment communities. There can be no assurance that the Company
will undertake to develop any particular site or that it will be able to
complete such development if it is undertaken. Risks associated with the
Company's development and construction activities include: development
opportunities may be abandoned; construction costs of a community may exceed
original estimates, possibly making the community uneconomical; occupancy rates
and rents at a newly completed community may not be sufficient to make the
community profitable; financing may not be available on favorable terms for
development of a community; and construction and lease-up may not be completed
on schedule, resulting in increased debt service and construction costs.
Development activities are also subject to risks relating to the inability to
obtain, or delays in obtaining, all necessary zoning, land-use, building,
occupancy and other required governmental permits and authorizations.
The Company intends to continue to acquire multifamily apartment
communities on a select basis. Acquisitions of multifamily apartment communities
entail risks that investments will fail to perform in accordance with
expectations. Estimates of the costs of improvements to bring an acquired
property up to standards established for the market position intended for that
property may prove inaccurate.
The Company anticipates that future developments and acquisitions will be
financed, in whole or in part, under existing credit facilities or loan
commitments or other lines of credit or other forms of secured or unsecured
financing or through the issuance of additional equity by the Company. The use
of equity financing, rather than debt, for future developments or acquisitions
could have a dilutive effect on the interest of existing shareholders of the
Company. If new developments are financed under existing lines of credit, there
is a risk that, unless substitute financing is obtained, further availability
under the lines of credit for new development may not be available or may be
available only on disadvantageous terms. In addition, there is a risk that upon
the maturity of such existing lines of credit, the lines of credit will not be
able to be refinanced or that the terms of such refinancing will not be as
favorable as the terms of the existing indebtedness.
REAL ESTATE FINANCING RISKS
No Limitation on Debt. The Company currently has a policy of incurring debt
only if upon such incurrence the ratio of debt to total market capitalization
(i.e., the total consolidated debt of the Company as a percentage of the market
value of issued and outstanding equity securities plus total consolidated debt)
would be 60% or less, but the organizational documents of the Company do not
contain any limitation on the amount of indebtedness the Company may incur.
Accordingly, the Company's Board of Trustees could alter or eliminate this
policy.
Existing Debt Maturities, Balloon Payments and Refinancing Risks. The
Company is subject to the risks normally associated with debt financing,
including the risk that the Company's cash flow will be insufficient to meet
required payments of principal and interest. Because the Company anticipates
that only a small portion of the principal of the Company's mortgage
indebtedness will be repaid prior to maturity, it will be necessary for the
Company to refinance debt. Accordingly, there is a risk that existing
indebtedness on the Communities will not be able to be refinanced or that the
terms of such refinancing will not be as favorable as the terms of the existing
indebtedness.
Risk of Rising Interest Rates. The Company incurred and expects in the
future to incur floating rate indebtedness in connection with the construction
of multifamily apartment communities, as well as for other purposes. In
addition, additional indebtedness that the Company incurs under the Company's
unsecured revolving credit facility also bears interest at a floating rate.
Accordingly, increases in interest rates would increase the Company's interest
costs (to the extent that the related indebtedness was not protected by the
Company's interest rate protection arrangements).
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Bond Compliance Requirements. Certain of the Company's multifamily
apartment communities are or may be financed with obligations issued by various
local government agencies or instrumentalities, the interest on which is exempt
from Federal income taxation. These obligations are commonly referred to as
"tax-exempt bonds." Under the terms of such bonds, the Company must comply with
various restrictions on the use of the Company's multifamily apartment
communities, including the restriction that a percentage of apartments be made
available to low and middle income households. The bond compliance requirements
in effect, and the requirements of any future tax-exempt bond financing utilized
by the Company, may have the effect of limiting the Company's income from the
Company's multifamily apartment communities subject to the financing. In
addition, certain of the tax-exempt bond financing documents require that a
financial institution (the "credit enhancer") guarantee payment of principal of,
and interest on, the bonds, which may take the form of a letter of credit,
surety bond, guarantee agreement or other additional collateral. If the credit
enhancer defaults in its credit enhancement obligations, or the Company is
unable to renew the applicable credit enhancement or otherwise post satisfactory
collateral, a default will occur under the applicable tax-exempt bonds and the
property could be foreclosed upon.
REAL ESTATE INVESTMENT RISKS
General Risks. Real property investments are subject to varying degrees of
risk. If the Company's communities do not generate revenues sufficient to meet
operating expenses, including debt service and capital expenditures, the
Company's cash flow and ability to make distributions to its shareholders will
be adversely affected. A multifamily community's revenues and value may be
adversely affected by the general economic climate; the local economic climate
(including the fiscal condition of the relevant governmental bodies); local real
estate conditions (such as oversupply of or reduced demand for apartment homes);
the perceptions by prospective residents of the safety, convenience and
attractiveness of the communities or neighborhoods in which they are located and
the quality of local schools and other amenities; the ability of the owner to
provide adequate management, maintenance and insurance; and increased operating
costs (including real estate taxes and utilities). Certain significant
expenditures associated with each equity investment (such as mortgage payments,
if any, real estate taxes, insurance and maintenance costs) are generally not
reduced when circumstances cause a reduction in income from the investment.
Dependence on Primary Markets. The Company's multifamily apartment
communities are located in various metropolitan areas in the Southeastern and
Southwestern United States, particularly Atlanta, Houston and Dallas, and the
Company's performance and its ability to make distributions to shareholders
could be adversely affected by economic and social conditions in these
geographic areas.
Market Illiquidity. Equity real estate investments are relatively illiquid.
Such illiquidity will tend to limit the ability of the Company to vary its
portfolio promptly in response to changes in economic or other conditions. In
addition, the Code limits the Company's ability to sell properties held for
fewer than four years, which may affect the Company's ability to sell properties
without adversely affecting returns to holders of Common Shares.
Operating Risks. The Company's multifamily apartment communities are
subject to all operating risks common to multifamily apartment communities in
general, any and all of which might adversely affect apartment occupancy or
rental rates. Increases in unemployment in the areas in which the communities
owned or managed by the Company are located might adversely affect multifamily
occupancy or rental rates. Increases in operating costs due to inflation and
other factors may not necessarily be offset by increased rents. Residents may be
unable or unwilling to pay rent increases. Future enactment of rent control or
rent stabilization laws or other laws regulating multifamily housing may reduce
rental revenue or increase operating costs. If operating expenses increase, the
local rental market may limit the extent to which rents may be increased to meet
increased expenses without decreasing occupancy rates.
Competition. There are numerous housing alternatives that compete with the
Company's multifamily apartment communities in attracting residents. The
Company's multifamily apartment communities compete directly with other
multifamily rental apartments and single family homes that are available for
rent or purchase in the markets in which the Company's multifamily apartment
communities are located. In addition, other competitors for development and
acquisitions of properties, including other REITs, may have greater resources
than the Company. Increased supply of apartment homes in the Company's principal
markets over the past few
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years and the next few years may adversely affect the current favorable demand
environment for apartment homes, including occupancy and rental rates.
Affordable Housing Laws. Certain of the Company's multifamily apartment
communities are, and will be in the future, subject to Federal, state and local
statutes or other restrictions requiring that a percentage of apartments be made
available to low and middle income households. These laws and obligations, as
well as any changes thereto making it more difficult to meet such requirements,
or a reduction in or elimination of certain financing advantages available to
those persons satisfying such requirements, could adversely affect the Company's
profitability and its ability to develop certain communities in the future.
RISK OF FEE MANAGEMENT BUSINESS
The Company manages properties owned by third parties for a fee. Risks
associated with the management of properties owned by third parties include the
risk that the management contracts will be terminated and/or that the rental
revenues upon which management fees and based will decline, resulting in
decreased management fee income.
LIMITS ON CHANGES IN CONTROL
Certain provisions contained in the Company's Amended and Restated
Declaration of Trust (the "Declaration of Trust") and Second Amended and
Restated Bylaws (the "Bylaws") and under Maryland law may have the effect of
discouraging a third party from making an acquisition proposal for the Company
and may thereby inhibit a change in control of the Company. For example, such
provisions may (i) deter tender offers for Common Shares, which offers may be
attractive to the shareholders, or (ii) deter purchases of large blocks of
Common Shares, thereby limiting the opportunity for shareholders to receive a
premium for their Common Shares over then-prevailing market prices.
POSSIBLE ADVERSE CONSEQUENCES OF LIMITS ON OWNERSHIP OF COMMON SHARES
In order to maintain its qualification as a REIT, not more than 50% in
value of the outstanding shares of beneficial interest of the Company may be
owned, directly or indirectly, by five or fewer persons. In order to protect the
Company against the risk of losing its status as a REIT due to a concentration
of ownership among its shareholders, the Company has limited ownership of shares
of beneficial interest by any single shareholder to 9.8% of the outstanding
shares of beneficial interest. Although the Board of Trustees presently has no
intention of doing so, the Board of Trustees could waive this restriction if it
were satisfied, based upon the advice of tax counsel, that ownership in excess
of this limit would not jeopardize the Company's status as a REIT and the Board
of Trustees otherwise decided such action would be in the best interest of the
Company. This restriction also does not apply with respect to an offeror in the
event of an all-cash tender offer by it which has been accepted by shareholders
representing at least two-thirds of the Company's outstanding shares. Shares
acquired or transferred in breach of the limitation will be automatically
exchanged for shares not entitled to vote or to participate in dividends or
other distributions. In addition, shares acquired or transferred in breach of
the limitation may be purchased by the Company for the lesser of the price paid
and the market price (as determined in the manner set forth in the Declaration
of Trust).
COST OF COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT AND SIMILAR LAWS
Under the Americans with Disabilities Act of 1990 (the "ADA"), all places
of public accommodation are required to meet certain Federal requirements
related to access and use by disabled persons. Although management of the
Company believes that the Company's communities are substantially in compliance
with the present requirements of the ADA, the Company may incur additional costs
of complying with the ADA. A number of additional Federal, state and local laws
exist which also may require modifications to the Company's communities, or
restrict certain further renovations thereof, with respect to access thereto by
disabled persons. For example, the Fair Housing Act of 1988 (the "FHAA")
requires apartment communities first occupied after March 13, 1990 to be
accessible to the handicapped. Noncompliance with the FHAA could result in the
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imposition of fines or an award of damages to private litigants. Additional
legislation may impose further burdens or restrictions on owners with respect to
access by disabled persons.
The ultimate amount of the cost of compliance with the ADA or such
legislation is not currently ascertainable, and, while such costs are not
expected to have a material effect on the Company, such costs could be
substantial.
ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT; OTHER TAX LIABILITIES
The Company intends at all times to operate so as to qualify as a REIT
under the Code. Although management of the Company believes that the Company is
organized and operates in such a manner, no assurance can be given that the
Company qualifies or will remain qualified as a REIT. Qualification as a REIT
involves the application of highly technical and complex Code provisions for
which there are only limited judicial and administrative interpretations. The
determination of various factual matters and circumstances not entirely within
the Company's control may affect the Company's ability to qualify as a REIT. If
the Company fails to qualify as a REIT, it will be subject to Federal income tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. In addition, unless entitled to relief under certain
statutory provisions, the Company will be disqualified from treatment as a REIT
for the four taxable years following the year during which qualification is
lost. The additional tax would significantly reduce the cash flow available for
distribution to shareholders.
POSSIBLE ADVERSE IMPACT OF MARKET CONDITIONS ON MARKET PRICE
The market value of the Common Shares could be substantially affected by
general market conditions, including changes in interest rates, government
regulatory action and changes in tax laws. An increase in market interest rates
may lead purchasers of the Common Shares to demand a higher annual yield, which
could adversely affect the market price of the Common Shares.
POSSIBLE ENVIRONMENTAL LIABILITIES
Under various Federal, state and local environmental laws, a current or
previous owner or operator of real estate may be required (typically regardless
of knowledge or responsibility) to investigate and clean up hazardous or toxic
substances or petroleum product releases at such property and may be held liable
to a governmental entity or to third parties for property damage and for
investigation and clean-up costs incurred by such parties in connection with the
contamination, which may be substantial. The presence of such substances (or the
failure to properly remediate the contamination) may adversely affect the
owner's ability to borrow against, sell or rent such property.
7
<PAGE> 10
THE COMPANY
GENERAL
Gables Residential Trust is one of the largest owners, operators and
developers of multifamily apartment communities in the Southeastern and
Southwestern United States. The Company owns multifamily apartment communities
located in the following major cities in Georgia, Texas, Tennessee and Florida:
Atlanta, Austin, Dallas, Houston, San Antonio, Memphis, Nashville and Orlando.
The Company provides a full range of integrated real estate management,
construction and acquisition services through a staff of approximately 900
employees who have experience in property operations, development, acquisition
and construction. The Company maintains offices in Atlanta, Houston and Dallas,
each with its own fully integrated real estate staff. The finance, accounting
and administrative functions for the Company are controlled by a central staff
located in Atlanta.
The Company operates as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"). Substantially all of the
Company's business is conducted through, and all of the Company's interests in
property are held by or through, Gables Realty Limited Partnership (the
"Operating Partnership"), of which the Company is currently an 84.4% economic
owner (excluding the Company's direct or indirect ownership of 100% of the
Operating Partnership's Series A Preferred Units) and which the Company controls
through a wholly-owned subsidiary that is the sole general partner of the
Operating Partnership.
The Company's executive offices are located at 2859 Paces Ferry Road, in
Atlanta, Georgia 30339 and its telephone number is (770) 436-4600. The Company's
common shares of beneficial interest, par value $.01 per share, are listed on
the New York Stock Exchange under the symbol "GBP."
8
<PAGE> 11
DESCRIPTION OF SECURITIES TO BE REGISTERED
The description of the Company's Common Shares set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Declaration of Trust and Bylaws, copies of which are exhibits to the
Registration Statement of which this Prospectus is a part. See "Additional
Information."
GENERAL
Under the Declaration of Trust, the Company has authority to issue up to
161,000,000 shares of beneficial interest, consisting of 100,000,000 Common
Shares, par value $.01 per share, 51,000,000 "Excess Shares" (as described
below), par value $.01 per share, and 10,000,000 Preferred Shares, par value
$.01 per share. As of December 1, 1997, the Company had outstanding 21,949,640
Common Shares and 4,600,000 shares of 8.30% Series A Cumulative Redeemable
Preferred Shares. In addition, on such date, 4,056,373 Units were outstanding
(other than those held directly or indirectly by the Company) and may be
exchanged for Common Shares on a one-for-one basis.
Under Maryland law, shareholders generally are not responsible for the
corporation's debts or obligations, and the Company's Declaration of Trust
specifically provides that no shareholder of the Company will be personally
liable for any obligations of the Company. The Company's Bylaws further provide
that the Company shall indemnify each shareholder against any claim or liability
to which the shareholder may become subject by reason of his being or having
been a shareholder, and that the Company shall reimburse each shareholder for
all legal and other expenses reasonably incurred by him in connection with any
such claim or liability. However, with respect to tort claims, contractual
claims where shareholder liability is not so negated, claims for taxes and
certain statutory liability, the shareholder may, in some jurisdictions,
including Texas, be personally liable to the extent that such claims are not
satisfied by the Company. Inasmuch as the Company will carry public liability
insurance which it considers adequate, any risk of personal liability to
shareholders is limited to situations in which the Company's assets plus its
insurance coverage would be insufficient to satisfy the claims against the
Company and its shareholders.
COMMON SHARES
All Common Shares which may be offered hereby will be duly authorized,
fully paid and nonassessable. Subject to the preferential rights of any other
shares or series of shares and to the provisions of the Company's Declaration of
Trust regarding Excess Shares, holders of Common Shares will be entitled to
receive distributions on Common Shares if, as and when authorized and declared
by the Board of Trustees of the Company out of assets legally available therefor
and to share ratably in the assets of the Company legally available for
distribution to its shareholders in the event of its liquidation, dissolution or
winding-up after payment of, or adequate provision for, all known debts and
liabilities of the Company.
Subject to the provisions of the Company's Declaration of Trust regarding
Excess Shares, each outstanding Common Share entitles the holder to one vote on
all matters submitted to a vote of shareholders, including the election of
trustees, and, except as otherwise required by law or except as provided with
respect to any other class or series of shares, the holders of Common Shares
will possess exclusive voting power. There is no cumulative voting in the
election of trustees, which means that the holders of a majority of the
outstanding Common Shares can elect all of the trustees then standing for
election, and the holders of the remaining Common Shares will not be able to
elect any trustee.
Holders of Common Shares have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the Company.
Subject to the provisions of the Company's Declaration of Trust regarding
Excess Shares, all Common Shares will have equal dividend, distribution,
liquidation and other rights, and will have no preference, appraisal or exchange
rights.
The Company's Declaration of Trust provides that the Company cannot merge
with or sell all or substantially all of the assets of the Company, except
pursuant to a resolution approved by shareholders holding a majority of the
shares entitled to vote on the resolution. In addition, the Operating
Partnership's agreement
9
<PAGE> 12
of limited partnership, as amended, requires that any merger or sale of all or
substantially all of the assets of the Operating Partnership be approved by
partners holding 75% of the Units.
The transfer agent and registrar for the Common Shares is BankBoston, N.A.,
Boston, Massachusetts.
PREFERRED SHARES
Preferred Shares may be issued from time to time, in one or more series, as
authorized by the Board of Trustees. Prior to issuance of shares of each series,
the Board of Trustees is required by the Maryland General Corporation Law (the
"MGCL") and the Company's Declaration of Trust to fix for each series, subject
to the provisions of the Company's Declaration of Trust regarding Excess Shares,
the terms, preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and terms or
conditions of redemption, as are permitted by Maryland law. Such rights, powers,
restrictions and limitations could include the right to receive specified
dividend payments and payments on liquidation prior to any such payments being
made to the holders of some, or a majority, of the Common Shares. The Board of
Trustees could authorize the issuance of Preferred Shares with terms and
conditions that could have the effect of discouraging a takeover or other
transaction that holders of Common Shares might believe to be in their best
interests or in which holders of some, or a majority, of Common Shares might
receive a premium for their shares over the then-current market price of such
shares. As of the date hereof, the Company had outstanding 4,600,000 shares of
8.30% Series A Cumulative Redeemable Preferred Shares.
RESTRICTIONS ON TRANSFERS
For the Company to qualify as a REIT under the Code, among other things,
not more than 50% in value of its outstanding shares of beneficial interest may
be owned, directly or indirectly, by five or fewer individuals (defined in the
Code to include certain entities) during the last half of a taxable year (other
than the first year), and such shares of beneficial interest must be
beneficially owned by 100 or more persons during at least 335 days of a taxable
year of 12 months (other than the first year) or during a proportionate part of
a shorter taxable year. In order to protect the Company against the risk of
losing its status as a REIT due to a concentration of ownership among its
shareholders, the Declaration of Trust provides that no holder (other than
persons approved by the trustees at their option and in their discretion) may
own, or be deemed to own by virtue of the attribution provisions of the Code,
more than 9.8% (the "Ownership Limit") of the Company's shares of beneficial
interest. The Board of Trustees does not expect that it would waive the
Ownership Limit in the absence of the ruling from the Internal Revenue Service
or an opinion of counsel satisfactory to it that the changes in ownership will
not then or in the future jeopardize the Company's status as a REIT. Any
transfer of shares of beneficial interest or any security convertible into
shares of beneficial interest that would create a direct or indirect ownership
of shares of beneficial interest in excess of the Ownership Limit or that would
result in the disqualification of the Company as a REIT, including any transfer
that results in the shares of beneficial interest being owned by fewer than 100
persons or that results in the Company being "closely held" within the meaning
of Section 856(h) of the Code, shall be null and void, and the intended
transferee will acquire no rights to the shares of beneficial interest. The
foregoing restrictions on transferability and ownership will not apply if the
Board of Trustees determines that it is no longer in the best interest of the
Company to continue to qualify as a REIT. In addition, the foregoing
restrictions do not apply with respect to an offeror in the event of an all-cash
tender offer by it which has been accepted by shareholders representing at least
two-thirds of the Company's outstanding shares.
Shares of beneficial interest owned, or deemed to be owned, or transferred
to a shareholder in excess of the Ownership Limit will automatically be
exchanged for Excess Shares that will be transferred, by operation of law, to
the Company as trustee of a trust for the exclusive benefit of the transferees
to whom such shares of beneficial interest may be ultimately transferred without
violating the Ownership Limit. While the Excess Shares are held in trust, they
will not be entitled to vote, they will not be considered for purposes of any
shareholder vote or the determination of a quorum for such vote, and, except
upon liquidation, they will not be entitled to participate in dividends or other
distributions. Any dividend or distribution paid to a proposed transferee of
Excess Shares prior to the discovery by the Company that capital stock has been
transferred in violation of the provisions of the Company's Declaration of Trust
shall be repaid to the Company upon demand. The Excess Shares are not treasury
shares, but rather constitute a separate class of issued and outstanding shares
of beneficial interest of the Company. The original transferee-shareholder may,
at any time the Excess Shares are held by the Company in trust, transfer the
interest in the trust representing the Excess Shares to any
10
<PAGE> 13
individual whose ownership of the shares of beneficial interest exchanged into
such Excess Shares would be permitted under the Ownership Limit, at a price not
in excess of the price paid by the original transferee-shareholder for the
shares of beneficial interest that were exchanged for Excess Shares. Immediately
upon the transfer to the permitted transferee, the Excess Shares will
automatically be exchanged for shares of beneficial interest of the class from
which they were converted. If the foregoing transfer restrictions are determined
to be void or invalid by virtue of any legal decision, statute, rule or
regulation, then the intended transferee of any Excess Shares may be deemed, at
the option of the Company, to have acted as an agent on behalf of the Company in
acquiring the Excess Shares and to hold the Excess Shares on behalf of the
Company.
In addition to the foregoing transfer restrictions, the Company will have
the right, for a period of 90 days during the time any Excess Shares are held by
the Company in trust, to purchase all or any portion of the Excess Shares from
the original transferee-shareholder for the lesser of the price paid for the
shares of beneficial interest by the original transferee-shareholder or the
market price (as determined in the manner set forth in the Declaration of Trust)
of the shares of beneficial interest on the date the Company exercises its
option to purchase. The 90-day period begins on the date of the violative
transfer if the original transferee-shareholder gives notice to the Company of
the transfer or, if no such notice is given, the date the Board of Trustees
determines that a violative transfer has been made.
Every owner of more than 5% (or such lower percentage as required by the
Code or regulations thereunder) of the issued and outstanding Common Shares must
file a written notice with the Company containing the information specified in
the Declaration of Trust no later than January 30 of each year. Each shareholder
shall upon demand be required to disclose to the Company in writing any
information with respect to the direct, indirect and constructive ownership of
beneficial interests as the Board of Trustees deems necessary to comply with the
provisions of the Code applicable to REITs, to comply with the requirements of
any taxing authority or governmental agency or to determine any such compliance.
This ownership limitation may have the effect of precluding acquisition of
control of the Company unless the Board of Trustees determines that maintenance
of REIT status is no longer in the best interest of the Company.
11
<PAGE> 14
REGISTRATION RIGHTS
The registration of the Redemption Shares pursuant to the Registration
Statement of which this Prospectus is a part will discharge the Company's
obligations under the terms of (i) a registration rights agreement dated August
21, 1997 and (ii) a registration rights agreement dated October 17, 1997
(collectively, the "Registration Rights Agreements"). The following summary does
not purport to be complete and is qualified in its entirety by reference to the
Registration Rights Agreements.
Under the Registration Rights Agreements, the Company is obligated, at the
written request of the Selling Shareholders, to cause to be filed, as soon as
reasonably practicable after the date of such request, a registration statement
under Rule 415 under the Securities Act covering the sale by the Selling
Shareholders of the Redemption Shares which the Selling Shareholders may acquire
in exchange for their Acquired Units. The Company is further obligated to use
reasonable efforts to cause such registration statement to be declared effective
by the Commission and to keep such registration statement continuously effective
until the earliest of (a) the date on which the Selling Shareholders no longer
hold any Redemption Shares or Acquired Units or (b) the date on which all of the
Redemption Shares held or subsequently acquired by the Selling Shareholders have
become eligible for sale pursuant to Rule 144(k) promulgated under the
Securities Act and the Company has delivered to the Selling Shareholders an
opinion of counsel to such effect. As a result of the filing and effectiveness
of the Registration Statement of which this Prospectus is a part, any Redemption
Shares sold by the Selling Shareholders pursuant to this Prospectus will no
longer be entitled to the benefits of the Registration Rights Agreements.
Pursuant to the Registration Rights Agreements, the Company is obligated to
bear all expenses of effecting the registration of the Redemption Shares (other
than brokerage and underwriting commissions and taxes of any kind and other than
for any legal, accounting and other expenses incurred by the Selling
Shareholders). The Company also has agreed to indemnify the Selling Shareholders
under the Registration Rights Agreements all losses, claims, damages, actions,
liabilities, costs and expenses arising under the securities laws in connection
with the Registration Statement or this Prospectus, subject to certain
limitations. In addition, the Selling Shareholders under the Registration Rights
Agreements agree to indemnify the Company and its respective trustees, officers
and any person who controls the Company against all losses, claims, damages,
actions, liabilities, costs and expenses arising under the securities laws
insofar as such loss, claim, damage, action, liability, cost or expense relates
to written information furnished to the Company by the Selling Shareholders for
use in the Registration Statement or Prospectus or an amendment or supplement
thereto or the failure by the Selling Shareholders to deliver or cause to be
delivered this Prospectus or any amendment or supplement thereto to any
purchaser of shares covered by the Registration Statement from the Selling
Shareholders through no fault of the Company.
FEDERAL INCOME TAX CONSIDERATIONS
The Company believes it has operated, and the Company intends to continue
to operate, in such manner as to qualify as a REIT under the Code, but no
assurance can be given that it will at all times so qualify.
The provisions of the Code pertaining to REITs are highly technical and
complex. The following is a brief and general summary of certain provisions that
currently govern the Federal income tax treatment of the Company and its
shareholders. For the particular provisions that govern the Federal income tax
treatment of the Company and its shareholders, reference is made to Sections 856
through 860 of the Code and the regulations thereunder. The following summary is
qualified in its entirety by such reference.
Under the Code, if certain requirements are met in a taxable year, a REIT
generally will not be subject to Federal income tax with respect to income that
it distributes to its shareholders. If the Company fails to qualify during any
taxable year as a REIT, unless certain relief provisions are available, it will
be subject to tax (including any applicable alternative minimum tax) on its
taxable income at regular corporate rates, which could have a material adverse
effect upon its shareholders.
In any year in which the Company qualifies to be taxed as a REIT,
distributions made to its shareholders out of current or accumulated earnings
and profits will be taxed to shareholders as ordinary income except that
distributions of net capital gains designated by the Company as capital gain
dividends will be taxed as long-term
12
<PAGE> 15
capital gain income to the shareholders. To the extent that distributions exceed
current or accumulated earnings and profits, they will constitute a return of
capital, rather than dividend or capital gain income, and will reduce the basis
for the shareholder's Common Shares with respect to which the distribution is
paid or, to the extent that they exceed such basis, will be taxed in the same
manner as gain from the sale of those Common Shares.
Investors are urged to consult their own tax advisors with respect to the
appropriateness of an investment in the Common Shares offered hereby and with
respect to the tax consequences arising under Federal law and the laws of any
state, municipality or other taxing jurisdiction, including tax consequences
resulting from such investor's own tax characteristics. In particular, foreign
investors should consult their own tax advisors concerning the tax consequences
of an investment in the Company, including the possibility of United States
income tax withholding on Company distributions.
13
<PAGE> 16
THE SELLING SHAREHOLDERS
The following table provides the name of and the number of Redemption
Shares and Acquired Units beneficially owned by the Selling Shareholders as of
December 1, 1997. The Redemption Shares set forth below as being beneficially
owned as of the date hereof represent the Common Shares that the Selling
Shareholders may acquire upon presentation of the Acquired Units to the
Operating Partnership for redemption, all in accordance with the agreement of
limited partnership of the Operating Partnership, as amended. The Acquired Units
were issued by the Operating Partnership in connection with the acquisition of
two apartment communities by the Operating Partnership.
The Redemption Shares offered by this Prospectus will be offered from time
to time by the Selling Shareholders named below, or by pledgees, donees,
transferees or other successors in interest thereto. It has been represented to
the Company that, as of the date of this Prospectus, the Selling Shareholders
own no other Common Shares of the Company.
<TABLE>
<CAPTION>
REDEMPTION SHARES ACQUIRED UNITS
BENEFICIALLY BENEFICIALLY OWNED COMMON SHARES
OWNED AS OF AS OF COMMON SHARES TO BE OWNED
NAME DECEMBER 1, 1997 DECEMBER 1, 1997 OFFERED HEREBY AFTER OFFERING
---- ---------------- ---------------- -------------- --------------
<S> <C> <C> <C>
Brannon B. Lesesne, Jr. 18,499 18,499 18,499 -
The Bristol Company 6,166 6,166 6,166 -
Jean P. Bryant 19,923 19,923 19,923 -
Imogene C. Gruenberg 2,325 2,325 2,325 -
John A. Chapman, Jr.
Trust #1015931 4,648 4,648 4,648 -
Richard Hurd, Jr. 2,325 2,325 2,325 -
Clarence Jacoby 4,648 4,648 4,648 -
Dixon R. McCloy, M.D. 2,325 2,325 2,325 -
Harry E. McKenna 4,648 4,648 4,648 -
Fred W. Nichols 2,325 2,325 2,325 -
W. King Sims 4,648 4,648 4,648 -
Gene Schmidgall 4,648 4,648 4,648 -
Richard R. Schmidgall 4,648 4,648 4,648 -
William A. Sybers, M.D. 4,648 4,648 4,648 -
Howard J. Williams, Jr. 2,325 2,325 2,325 -
Alice D. Wyco 2,325 2,325 2,325 -
Stephen B. Lipton 3,795 3,795 3,795 -
Markan Villa, Inc. 97,100 97,100 97,100 -
Four Taylors, Inc. 50,975 50,975 50,975 -
Rocksprings Apartments, Inc. 207,515 207,515 207,515 -
The Herbert Taylor Trust
U/A 9/16/57 97,682 97,682 97,682 -
------- ------- -------
TOTAL 548,141 548,141 548,141 -
======= ======= =======
</TABLE>
14
<PAGE> 17
USE OF PROCEEDS
The Company will not receive any of the proceeds of the sale of the
Redemption Shares offered hereby.
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale from time to time of up to an
aggregate of 548,141 Common Shares by the Selling Shareholders, or by pledgees,
donees, transferees or other successors in interest thereto. If the Selling
Shareholders present Acquired Units to the Operating Partnership for redemption,
the Company may, at its election, acquire such Units in exchange for Redemption
Shares in accordance with the terms of the Operating Partnership's agreement of
limited partnership, as amended. The Company is registering the Redemption
Shares pursuant to the Company's obligations under two registration rights
agreements, but the registration of the Redemption Shares does not necessarily
mean that any of the Redemption Shares will be offered or sold by the Selling
Shareholders hereunder. The Company will not receive any proceeds from the
offering of the Redemption Shares by the Selling Shareholders.
The distribution of the Redemption Shares may be effected from time to time
in one or more underwritten transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Any such
underwritten offering may be on a "best efforts" or a "firm commitment" basis.
In connection with any such underwritten offering, underwriters or agents may
receive compensation in the form of discounts, concessions or commissions from
the Selling Shareholders. Underwriters may sell the Redemption Shares to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents.
The Selling Shareholders and any underwriters, dealers or agents that
participate in the distribution of the Redemption Shares may be deemed to be
"underwriters" within the meaning of the Securities Act, and any profit on the
sale of the Redemption Shares by them and any discounts, commissions or
concessions received by any such underwriters, dealers or agents might be deemed
to be underwriting discounts and commissions under the Securities Act.
At a time a particular offer of Redemption Shares is made by the Selling
Shareholders, a Prospectus Supplement, if required, will be distributed that
will set forth the name and names of any underwriters, dealers or agents and any
discounts, commissions and other terms constituting compensation from the
Selling Shareholders and any other required information.
The sale of Redemption Shares by the Selling Shareholders may also be
effected from time to time by selling Redemption Shares directly to purchasers
or to or through broker-dealers. In connection with any such sale, any such
broker-dealer may act as agent for the Selling Shareholders or may purchase from
the Selling Shareholders all or a portion of the Redemption Shares as principal,
and may be made pursuant to any of the methods described below. Such sales may
be made on the NYSE or other exchanges on which the Common Shares are then
traded, in the over-the-counter market, in negotiated transactions or otherwise
at prices and at terms then prevailing or at prices related to the then-current
market prices or at prices otherwise negotiated.
The Redemption Shares may also be sold in one or more of the following
transactions: (a) block transactions (which may involve crosses) in which a
broker-dealer may sell all or a portion of such shares as agent but may position
and resell all or a portion of the block as principal to facilitate the
transaction; (b) purchases by any such broker-dealer as principal and resale by
such broker-dealer for its own account pursuant to a Prospectus Supplement; (c)
a special offering, an exchange distribution or a secondary distribution in
accordance with applicable NYSE or other stock exchange rules; (d) ordinary
brokerage transactions and transactions in which any such broker-dealer solicits
purchasers; (e) sales "at the market" to or through a market maker or into an
existing trading market, on an exchange or otherwise, for such shares; and (f)
sales in other ways not involving market makers or established trading markets,
including direct sales to purchasers. In effecting sales, broker-dealers engaged
by the Selling Shareholders may arrange for other broker-dealers to participate.
Broker-dealers will receive commissions or other compensation from the Selling
Shareholders in amounts to be negotiated immediately prior to the sale that will
not exceed those customary in the types of transactions involved. Broker-dealers
may also receive compensation from purchasers of the Redemption Shares which is
not expected to exceed that customary in the types of transactions involved.
15
<PAGE> 18
In order to comply with the securities laws of certain states, if
applicable, the Redemption Shares may be sold only through registered or
licensed brokers or dealers. In addition, in certain states, Redemption Shares
may not be sold unless they have been registered or qualified for sale in such
state or an exemption from such registration or qualification requirement is
available and is complied with.
All expenses incident to the offering and sale of the Redemption Shares,
other than commissions, discounts and fees of underwriters, broker-dealers or
agents, shall be paid by the Company. The Company has agreed to indemnify the
Selling Shareholders against certain losses, claims, damages, actions,
liabilities, costs and expenses, including liabilities under the Securities Act.
See "Registration Rights."
EXPERTS
The financial statements and schedules incorporated by reference in this
Prospectus and the Registration Statement of which this Prospectus is a part
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
LEGAL MATTERS
The validity of the Common Shares offered hereby are being passed upon
for the Company by Goodwin, Procter & Hoar LLP, Boston, Massachusetts.
16
<PAGE> 19
====================================== =====================================
NO DEALER, SALESPERSON OR
OTHER INDIVIDUAL HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION 548,141
OR MAKE ANY REPRESENTATIONS NOT SHARES
CONTAINED IN THIS PROSPECTUS. IF
GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY
THE COMPANY OR THE SELLING
SHAREHOLDERS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL, OR GABLES RESIDENTIAL
A SOLICITATION OF AN OFFER TO BUY, TRUST
THE COMMON SHARES IN ANY
JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS NOT BEEN
ANY CHANGE IN THE FACTS SET FORTH
IN THIS PROSPECTUS OR IN THE
AFFAIRS OF THE COMPANY SINCE THE
DATE HEREOF.
COMMON SHARES
------------------------- OF BENEFICIAL INTEREST
(PAR VALUE $.01 PER SHARE)
SUMMARY TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION........................ 1 ---------------------
INCORPORATION OF CERTAIN DOCUMENTS BY PROSPECTUS
REFERENCE.................................. 1 ---------------------
PROSPECTUS SUMMARY........................... 2
RISK FACTORS................................. 4
THE COMPANY.................................. 8
DESCRIPTION OF SECURITIES TO BE REGISTERED... 9
REGISTRATION RIGHTS.......................... 12
FEDERAL INCOME TAX CONSIDERATIONS............ 12
THE SELLING SHAREHOLDERS..................... 14
USE OF PROCEEDS.............................. 15
PLAN OF DISTRIBUTION......................... 15
EXPERTS...................................... 16
LEGAL MATTERS................................ 16
-------------------------
DECEMBER __, 1997
====================================== =====================================
<PAGE> 20
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fee are estimated):
<TABLE>
<S> <C>
Registration fee -- Securities and Exchange Commission.......... $ 4,437
Accountants' fees and expenses.................................. 5,000
Blue Sky fees and expenses...................................... 1,500
Legal fees and expenses (other than Blue Sky)................... 7,500
Miscellaneous................................................... 1,500
TOTAL........................................................... $19,937
=======
</TABLE>
All expenses in connection with the issuance and distribution of the
securities being offered shall be borne by the Company.
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
The Company's Declaration of Trust and the partnership agreement of Gables
Realty Limited Partnership, a Delaware limited partnership and operating
subsidiary of the Company (the "Operating Partnership"), provide certain
limitations on the liability of the Company's trustees and officers for monetary
damages to the Company. The Declaration of Trust and the Bylaws obligate the
Company to indemnify its trustees and officers, and permit the Company to
indemnify its employees and other agents, against certain liabilities incurred
in connection with their service in such capacities. These provisions could
reduce the legal remedies available to the Company and the shareholders against
these individuals.
The Company's Bylaws require it to indemnify, to the full extent of
Maryland law, any present or former trustee or officer (and such person's spouse
and children) (an "Indemnitee") who is or was a party or threatened to be made a
party to any proceeding by reason of his or her service in that capacity,
against all expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or her in connection with the proceeding,
provided that the Company shall have received a written affirmation by the
Indemnitee that he or she has met the standard of conduct necessary for
indemnification by the Company as authorized by the Bylaws. The Company shall
not be required to indemnify an Indemnitee if (a) it is established that (i) the
Indemnitee's act or omission was committed in bad faith or was the result of
active or deliberate dishonesty, (ii) the Indemnitee actually received an
improper personal benefit in money, property or services or (iii) in the case of
a criminal proceeding, the Indemnitee had reasonable cause to believe that the
Indemnitee's act or omission was unlawful, (b) the proceeding was initiated by
the Indemnitee, (c) the Indemnitee received payment for such expenses pursuant
to insurance or otherwise or (d) the proceeding arises under Section 16 of the
Exchange Act. Pursuant to the Bylaws, the Indemnitee is required to repay the
amount paid or reimbursed by the Company if it shall ultimately be determined
that the standard of conduct was not met. The Company's Bylaws permit the
Company to provide such other and further indemnification or payment or
reimbursement of expenses as may be permitted by the MGCL or to which the
Indemnitee may be entitled. The Bylaws of Gables GP, Inc., a Texas corporation
and wholly-owned subsidiary of the Company and the General Partner of the
Operating Partnership ("GGPI"), contain similar provisions that are consistent
with Texas law.
Each of the Company's executive officers and trustees (the "Indemnitees")
has entered into an indemnification agreement with the Company, the Operating
Partnership and GGPI (the "Indemnitors"). The indemnification agreements
require, among other matters, that the Indemnitors indemnify the Indemnitees to
the fullest extent permitted by law and advance to the Indemnitees all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also indemnify and advance
all expenses incurred by the Indemnitees seeking to enforce their rights under
the indemnification agreements and cover the Indemnitees under the Company's
trustees' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides assurance to the trustees and executive officers
that indemnification will be available because such
II-1
<PAGE> 21
contracts cannot be modified unilaterally in the future by the Board of Trustees
or the shareholders to eliminate the rights they provide.
The Registration Rights Agreements between the Company and the Selling
Shareholders provide for the indemnification of the Company, its officers,
trustees, and other persons for certain liabilities, including liabilities under
the Securities Act.
ITEM 16. EXHIBITS.
4.1 Amended and Restated Declaration of Trust of the Company (incorporated
by reference to the Company's Registration Statement on Form S-11 (File
No. 33-70570), as amended).
4.2 Second Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
8-A/A-2 (File No. 1-12590)).
4.3 Articles Supplementary to the Company's Amended and Restated Declaration
of Trust creating a series of preferred shares of beneficial interest,
par value $.01 per share, called the 8.30% Series A Cumulative
Redeemable Preferred Shares (incorporated herein by reference to Exhibit
4.1 to the Company's Current Report on Form 8-K dated July 24, 1997
(File No. 1-12590)).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities and interests being registered.
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Goodwin Procter & Hoar LLP (included as part of Exhibits 5.1
and 8.1).
24.1 Power of Attorney (included on the signature page hereof).
99.1 Registration Rights Agreement dated August 21, 1997.
99.2 Registration Rights Agreement dated October 17, 1997.
99.3 Second Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (incorporated herein by reference to Exhibit 3.1
to the Operating Partnership's Registration Statement on Form 10/A-1
(File No. 000-22683)).
ITEM 17. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made pursuant to this Registration Statement, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement.
II-2
<PAGE> 22
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to trustees, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a trustee, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia on December 10, 1997.
GABLES RESIDENTIAL TRUST
By: /s/ Marcus E. Bromley
------------------------------------
Marcus E. Bromley
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Gables Residential Trust hereby severally constitute Marcus E.
Bromley and John T. Rippel, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Gables Residential Trust to comply with the provisions
of the Securities Act of 1933 and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Capacity Date
--------- -------- ----
/s/ Marcus E. Bromley Chairman of the Board of December 10, 1997
- ------------------------- Trustees and Chief Executive
Marcus E. Bromley Officer (Principal Executive
Officer)
/s/ Marvin R. Banks Chief Financial Officer December 10, 1997
- ------------------------- (Principal Financial Officer and
Marvin R. Banks, Jr. Principal Accounting Officer)
/s/ John T. Rippel President, Chief Operating December 10, 1997
- ------------------------- Officer and Trustee
John T. Rippel
/s/ David M. Holland Trustee December 10, 1997
- -------------------------
David M. Holland
/s/ Peter D. Linneman Trustee December 10, 1997
- -------------------------
Peter D. Linneman
/s/ Lauralee E. Martin Trustee December 10, 1997
- -------------------------
Lauralee E. Martin
/s/ John W. Mcintyre Trustee December 10, 1997
- -------------------------
John W. McIntyre
/s/ D. Raymond Riddle Trustee December 10, 1997
- -------------------------
D. Raymond Riddle
II-4
<PAGE> 24
EXHIBIT INDEX
EXHIBIT NO.
DESCRIPTION
4.1 Amended and Restated Declaration of Trust of the Company (incorporated
by reference to the Company's Registration Statement on Form S-11 (File
No. 33-70570), as amended).
4.2 Second Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
8-A/A-2 (File No. 1-12590)).
4.3 Articles Supplementary to the Company's Amended and Restated Declaration
of Trust creating a series of preferred shares of beneficial interest,
par value $.01 per share, called the 8.30% Series A Cumulative
Redeemable Preferred Shares (incorporated herein by reference to Exhibit
4.1 to the Company's Current Report on Form 8-K dated July 24, 1997
(File No. 1-12590)).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities and interests being registered.
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Goodwin Procter & Hoar LLP (included as part of Exhibits 5.1
and 8.1).
24.1 Power of Attorney (included on the signature page hereof).
99.1 Registration Rights Agreement dated August 21, 1997.
99.2 Registration Rights Agreement dated October 17, 1997.
99.3 Second Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (incorporated herein by reference to Exhibit 3.1
to the Operating Partnership's Registration Statement on Form 10/A-1
(File No. 000-22683)).
II-5
<PAGE> 1
Exhibit 5.1
[GOODWIN, PROCTER & HOAR LLP LETTERHEAD]
December 11, 1997
Gables Residential Trust
2859 Paces Ferry Road
Atlanta, Georgia 30339
Ladies and Gentlemen:
This opinion is furnished in connection with the registration on Form
S-3 (the "Registration Statement") pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), of 548,141 common shares of beneficial interest,
par value $.01 per share (the "Redemption Shares"), of Gables Residential Trust,
a Maryland real estate investment trust (the "Company"). The Redemption Shares
may be issued by the Company if and to the extent that certain holders (the
"Selling Shareholders") of units of limited partnership ("Units") in Gables
Realty Limited Partnership (the "Operating Partnership") tender such Units to
the Operating Partnership for redemption and the Company exercises its
contractual right to acquire such tendered Units for Redemption Shares.
In connection with rendering this opinion, we have examined the Amended
and Restated Declaration of Trust and Second Amended and Restated Bylaws of the
Company, each as amended to date; such records of the corporate proceedings of
the Company as we deemed material; and such other certificates, receipts,
records and documents as we considered necessary for the purposes of this
opinion. In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as certified, photostatic or facsimile copies, the authenticity
of the originals of such copies and the authenticity of telephonic confirmations
of public officials and others. As to facts material to our opinion, we have
relied upon certificates or telephonic confirmations of public officials and
certificates, documents, statements and other information of the Company or
representatives or officers thereof.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and The Commonwealth of
Massachusetts and the Maryland General Corporation Law.
<PAGE> 2
Gables Residential Trust
December 11, 1997
Page 2
Based upon the foregoing, we are of the opinion that when the Redemption
Shares being registered for the account of the Selling Shareholders have been
duly issued and exchanged for Units tendered to the Operating Partnership for
redemption by the Selling Shareholders as contemplated by the Registration
Statement, such Redemption Shares will be validly issued, fully paid and
nonassessable.
The foregoing assumes that all requisite steps were taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us with respect to this opinion
under the heading "Legal Matters" in the Prospectus which is a part of such
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
------------------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
Exhibit 8.1
[GOODWIN, PROCTER & HOAR LLP LETTERHEAD]
December 11, 1997
Gables Residential Trust
2859 Paces Ferry Road
Atlanta, Georgia 30339
Ladies and Gentlemen:
This opinion is furnished in our capacity as counsel to Gables
Residential Trust, a Maryland real estate investment trust (the "Company"), in
connection with the registration of 548,141 common shares of beneficial
interest, par value $.01 per share, pursuant to the Company's Registration
Statement on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission. This opinion relates to the Company's qualification for
federal income tax purposes as a real estate investment trust (a "REIT") within
the meaning of Sections 856-860 of the Internal Revenue Code of 1986, as amended
(the "Code").
In rendering the following opinion, we have examined the Amended and
Restated Declaration of Trust and Second Amended and Restated Bylaws of the
Company, and such other records, certificates and documents as we have deemed
necessary or appropriate for purposes of rendering the opinion set forth herein.
We have reviewed the Registration Statement and the descriptions set
forth therein of the Company and its investments and activities. We have relied
upon the representations of the Company and its affiliates and certain officers
thereof (including, without limitation, representations contained in a
representation letter dated as of this date) regarding the manner in which the
Company has been and will continue to be owned and operated. We have neither
independently investigated nor verified such representations, and we assume that
such representations are true, correct and complete and that all representations
made "to the best of the knowledge and belief" of any person(s) or party(ies) or
with similar qualification are and will be true, correct and complete as if made
without such qualification. We assume that the Company has been and will be
operated in accordance with applicable laws and the terms and conditions of
applicable documents and that the descriptions of the Company and its
investments and the proposed investments, activities, operations and governance
of the Company set forth in the Registration Statement and all prior
registration statements filed with the Securities and Exchange Commission
continue to be true. In addition, we have relied on certain additional facts and
assumptions described below. Capitalized terms not otherwise defined herein
shall have the meaning ascribed to such terms in the Registration Statement.
<PAGE> 2
Gables Residential Trust
December 11, 1997
Page 2
In rendering the opinion set forth herein, we have assumed (i) the
genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the conformity
to the original documents of all documents submitted to us as copies, (iv) the
conformity of final documents to all documents submitted to us as drafts, (v)
the authority and capacity of the individual or individuals who executed any
such documents on behalf of any person, (vi) the accuracy and completeness of
all records made available to us, and (vii) the factual accuracy of all
representations, warranties and other statements made by all parties. We also
have assumed, without investigation, that all documents, certificates,
warranties and covenants on which we have relied in rendering the opinion set
forth below and that were given or dated earlier than the date of this letter
continue to remain accurate, insofar as relevant to the opinion set forth
herein, from such earlier date through and including the date of this letter.
The discussion and conclusions set forth below are based upon the Code,
the Income Tax Regulations and Procedure and Administration Regulations
promulgated thereunder and existing administrative and judicial interpretations
thereof, all of which are subject to change. No assurance can therefore be given
that the federal income tax consequences described below will not be altered in
the future.
Based upon and subject to the foregoing, and provided that the Company
continues to meet the applicable asset composition, source of income,
shareholder diversification, distribution, recordkeeping and other requirements
of the Code necessary for a corporation to qualify as a REIT, we are of the
opinion that commencing with the Company's first taxable year ended December 31,
1994, the Company has been organized in conformity with the requirements for
qualification as a REIT under the Code, and the Company's method of operation,
as described in the representations referred to above, will enable it to
continue to meet the requirements for qualification and taxation as a REIT under
the Code.
We express no opinions other than those expressly set forth herein. You
should recognize that our opinion is not binding on the IRS and that the IRS may
disagree with the opinion contained herein. Although we believe that our opinion
will be sustained if challenged, there can be no assurance that this will be the
case. The opinion expressed herein is based upon the law as it currently exists.
Consequently, future changes in the law may
<PAGE> 3
Gables Residential Trust
December 11, 1997
Page 3
cause the federal income tax treatment of the transactions described herein to
be materially and adversely different from that described above.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
------------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 28, 1997
included in Gables Residential Trust's (the "Company") Annual Report on Form
10-K for the year ended December 31, 1996, our reports dated September 5, 1997
included in the Company's Current Report on Form 8-K dated September 9, 1997,
and our reports dated September 5, 1997 and November 14, 1997 included in the
Company's Current Report on Form 8-K dated November 24, 1997 and to all
references to our firm included in this registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
December 11, 1997
<PAGE> 1
Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as
of August 21, 1997 by and between GABLES RESIDENTIAL TRUST, a Maryland real
estate investment trust (the "Company") and each of the persons who are
signatories hereto (each, a "Holder").
WHEREAS, each Holder on this day acquired the number of units (such
Holder's "ACQUIRED UNITS") of limited partnership interest ("Units") in Gables
Realty Limited Partnership, a Delaware limited partnership (the "OPERATING
PARTNERSHIP"), set forth next to such Holder's name on SCHEDULE "A" hereto; and
WHEREAS, under the Second Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, dated as of July 24, 1997 (the
"PARTNERSHIP AGREEMENT"), holders of Units may present such Units to the
Operating Partnership for redemption, and any Units so presented may be acquired
by the Company, at the Company's option, for cash or common shares of beneficial
interest, par value $.01 per share ("COMMON SHARES"), of the Company; and
WHEREAS, the Acquired Units of each Holder were issued this day in
connection with the acquisition by the Operating Partnership of certain property
from Briarcliff North, Ltd., a Georgia limited partnership, and in partial
consideration of the transaction relating to the Units acquired this day by the
Holders, the Company, which owns a majority interest in the Operating
Partnership, has agreed to provide the Holders with registration rights with
respect to Common Shares, subject to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"PERSON" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
<PAGE> 2
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"REGISTRABLE SHARES" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
the Securities Act. All references in this Agreement to Rule 144 and subsections
thereof shall refer to corresponding provisions of future law.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 4 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by the
Holder, the fees and disbursements of counsel representing the Holder, and
transfer taxes, if any, relating to the sale or disposition of Registrable
Shares by the Holder, all of which shall be borne by the Holder in all cases.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers any of the Registrable Shares on an appropriate form, and all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
<PAGE> 3
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHARES" shall mean any Common Shares issued or to be issued to the
Holders by the Company upon acquisition by the Company of any Acquired Units
presented to the Operating Partnership for redemption.
2. REGISTRATION.
(a) FILING OF SHELF REGISTRATION STATEMENT. Subject to the
conditions set forth in this Agreement, at the written request of Holders
holding a majority of the Registrable Shares covered by this Agreement, at any
time after the date hereof the Company shall cause to be filed, as soon as
reasonably practicable after the date of such request, a Registration Statement
under Rule 415 under the Securities Act relating to the sale by all Holders of
all Registrable Shares in accordance with the terms hereof, and shall use
reasonable efforts to cause such Registration Statement to be declared effective
by the SEC. The Company agrees to use reasonable efforts to keep the
Registration Statement continuously effective until the earliest of (a) the date
on which the Holders no longer hold any Registrable Shares or (b) the date on
which all of the Registrable Shares held or subsequently acquired by the Holders
have become eligible for sale pursuant to Rule 144(k) promulgated under the
Securities Act and the Company has delivered to the Holder an opinion of counsel
to such effect (hereinafter referred to as the "SHELF REGISTRATION EXPIRATION
DATE").
(b) DEMAND REGISTRATION. Subject to the conditions set forth in this
Agreement, at any time after the Shelf Registration Expiration Date and while
any Registrable Shares are outstanding, the Company shall, at the written
request of Holders holding a majority of the Registrable Shares covered by this
Agreement, which Holders are unable to sell their Registrable Shares pursuant to
Rule 144(k) under the Securities Act, cause to be filed as soon as practicable
after the date of such request a Registration Statement under Rule 415 under the
Securities Act relating to the sale by such Holders of any or all of the
Registrable Shares held by such Holders in accordance with the terms hereof, and
shall use reasonable efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. The Company may, in its
sole discretion, elect to file the Registration Statement before receipt of such
notice from Holders. The Company agrees to use reasonable efforts to keep the
Registration Statement continuously effective thereafter until the date on which
such Holders no longer hold any Registrable Shares.
(c) PIGGYBACK REGISTRATION. If at any time after the Shelf
Registration Expiration Date and while any Registrable Shares or Acquired Units
are outstanding (without any obligation to do so) the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
Common Shares solely for cash (other than a registration statement (i) on Form
S-8 or any successor form to such Form or in connection with any employee or
director welfare, benefit
<PAGE> 4
or compensation plan, (ii) on Form S-4 or any successor form to such Form or in
connection with an exchange offer, (iii) in connection with a rights offering
exclusively to existing holders of Common Shares, (iv) in connection with an
offering solely to employees of the Company or its Subsidiaries, or (v) relating
to a transaction pursuant to Rule 145 of the Securities Act), whether or not for
its own account, the Company shall give prompt written notice of such proposed
filing to the Holders. The notice referred to in the preceding sentence shall
offer each of the Holders the opportunity to register such amount of Registrable
Shares as they may request (a "PIGGYBACK REGISTRATION"). Subject to the
provisions of Section 3 below, the Company shall include in such Piggyback
Registration, in the registration and qualification for sale under the blue sky
or securities laws of the various states and in any underwriting in connection
therewith, all Registrable Shares for which the Company has received a written
request for inclusion therein within fifteen (15) calendar days after the notice
referred to above has been given by the Company to the Holders. Each Holder
shall be permitted to withdraw all or part of his Registrable Shares from a
Piggyback Registration at any time prior to the effective date of such Piggyback
Registration. If a Piggyback Registration is an underwritten primary
registration on behalf of the Company and the managing underwriter advises the
Company that the total number of Common Shares requested to be included in such
registration exceeds the number of Common Shares which can be sold in such
offering, the Company will include in such registration in the following
priority: (i) first, all Common Shares the Company proposes to sell, (ii)
second, the full number of applicable Common Shares requested to be included in
such registration by holders of Common Shares with prior or superior piggyback
registration rights and (iii) third, up to the full number of applicable
Registrable Shares and Common Shares requested to be included in such
registration by the Holders and other holders of Common Shares with piggyback
registration rights of similar priority which, in the opinion of such managing
underwriter, can be sold without adversely affecting the price range or
probability of success of such offering (with the number of such Registrable
Shares and other Common Shares of each Holder and such other holders,
respectively, to be included in the Piggyback Registration to be allocated pro
rata among the Holders and such other holders on the basis of the total number
of shares requested to be included in such registration by such Holder, the
other Holders and such other holders of Registrable Shares).
(d) The Company shall notify each Holder of the effectiveness of the
Registration Statement and shall furnish to each Holder the number of copies of
the Registration Statement (including any amendments, supplements and exhibits),
the Prospectus contained therein (including each preliminary prospectus and all
related amendments and supplements) and any documents incorporated by reference
in the Registration Statement or such other documents as each Holder may
reasonably request in order to facilitate his sale of the Registrable Shares in
the manner described in the Registration Statement.
<PAGE> 5
(e) The Company shall prepare and file with the SEC from time to
time such amendments and supplements to the Registration Statement and
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all the Registrable Shares
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by the
Holders as set forth in the Registration Statement or (b) the date on which the
Registration Statement ceases to be effective in accordance with the terms of
this Section 2. Upon five (5) business days' notice, the Company shall file any
supplement or post-effective amendment to the Registration Statement with
respect to the plan of distribution or a Holder's ownership interests in
Registrable Shares that is reasonably necessary to permit the sale of the
Holder's Registrable Shares pursuant to the Registration Statements. The Company
shall file any necessary listing applications or amendments to the existing
applications to cause the Shares registered under any Registration Statement to
be then listed or quoted on the primary exchange or quotation system on which
the Common Shares are then listed or quoted.
(f) The Company shall promptly notify the Holders of, and confirm in
writing, any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus related thereto or for additional
information. In addition, the Company shall promptly notify the Holders of, and
confirm in writing, the filing of the Registration Statement or any Prospectus,
amendment or supplement related thereto or any post-effective amendment to the
Registration Statement and the effectiveness of any post-effective amendment.
(g) At any time when a Prospectus relating to the Registration
Statement is required to be delivered under the Securities Act, the Company
shall immediately notify the Holders of the happening of any event as a result
of which the Prospectus included in the Registration Statement, as then in
effect, includes 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 under which they were made, not
misleading. In such event, the Company shall promptly prepare and furnish to
each Holder a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registrable Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement.
3. STATE SECURITIES LAWS. Subject to the conditions set forth in
this Agreement, the Company shall, in connection with the filing of any
Registration Statement hereunder, file such documents as may be necessary to
register or qualify the Registrable Shares under the securities or
<PAGE> 6
"Blue Sky" laws of such states as a Holder may reasonably request, and the
Company shall use its best efforts to cause such filings to become effective;
PROVIDED, HOWEVER, that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any such state in which it
is not then qualified or to take any action that would subject it to general
jurisdiction in any state where the Company is not now so subject. Once
effective, the Company shall use its best efforts to keep such filings effective
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by such
Holder as set forth in the Registration Statement, (b) in the case of a
particular state, such Holder has notified the Company that he no longer
requires an effective filing in such state in accordance with its original
request for filing or (c) the date on which the Registration Statement ceases to
be effective. The Company shall promptly notify such Holder of, and confirm in
writing, the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Shares for sale under the
securities or "Blue Sky" laws of any jurisdiction or the initiation or threat of
any proceeding for such purpose.
4. EXPENSES. The Company shall bear all Registration Expenses
incurred in connection with the registration of the Registrable Shares pursuant
to this Agreement, except that each Holder shall be responsible for any
brokerage or underwriting commissions and taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
Registrable Shares sold by him and for any legal, accounting and other expenses
incurred by him.
5. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
each Holder against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including without limitation reasonable fees, expenses and
disbursements of attorneys and other professionals), joint or several, arising
out of or based upon any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any Registration
Statement or Prospectus, or upon any untrue or alleged untrue statement of
material fact contained in the Registration Statement or any Prospectus, or 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 under which they were made, not misleading, provided, that the
Company shall not be liable to a Holder in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon (i) an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
information regarding a Holder or his plan of distribution or ownership
interests which was furnished to the Company for use in connection with the
Registration Statement or the Prospectus contained therein by the Holder or (ii)
such Holder's failure to send or give a copy of the final prospectus furnished
to it by the Company through no fault of the Company at or prior to the
<PAGE> 7
time such action is required by the Securities Act to the person claiming an
untrue statement or alleged untrue statement or omission or alleged omission if
such statement or omission was corrected in such final prospectus.
6. COVENANTS OF THE HOLDER. Each Holder hereby agrees (a) to
cooperate with the Company and to furnish to the Company all such information
concerning his plan of distribution and ownership interests with respect to his
Registrable Shares in connection with the preparation of the Registration
Statement and any filings with any state securities commissions as the Company
may reasonably request, (b) to deliver or cause delivery of the Prospectus
contained in the Registration Statement to any purchaser of the shares covered
by the Registration Statement from the Holder and (c) to indemnify the Company,
its officers, directors, employees, agents, representatives and affiliates, and
each person, if any, who controls the Company within the meaning of the
Securities Act, and each other person, if any, subject to liability because of
his connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either a Registration Statement or the Prospectus contained therein, or 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 under which they were made, not misleading, if and to the extent
that such statement or omission occurs from reliance upon and in conformity with
written information regarding such Holder, his plan of distribution or ownership
interests, which was furnished to the Company by such Holder expressly for use
therein unless such statement or omission was corrected in writing to the
Company not less than two (2) business days prior to the date of the final
prospectus (as supplemented or amended, as the case may be) or (ii) the failure
by such Holder to deliver or cause to be delivered the Prospectus contained in
the Registration Statement (as amended or supplemented, if applicable) furnished
by the Company to such Holder to any purchaser of the shares covered by the
Registration Statement from such Holder through no fault of the Company.
7. SUSPENSION OF REGISTRATION REQUIREMENT.
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use its best efforts
to cause the Registration Statement and any filings with any state securities
commission to become effective or to amend or supplement the
<PAGE> 8
Registration Statement shall be suspended in the event and during such period as
unforeseen circumstances exist (including without limitation (i) an underwritten
primary offering by the Company if the Company is advised by the underwriters
that sale of Registrable Shares under the Registration Statement would have a
material adverse effect on the primary offering or (ii) pending negotiations
relating to, or consummation of, a transaction or the occurrence of an event
that would require additional disclosure of material information by the Company
in the Registration Statement or such filing, as to which the Company has a BONA
FIDE business purpose for preserving confidentiality or which renders the
Company unable to comply with SEC requirements) (such unforeseen circumstances
being hereinafter referred to as a "SUSPENSION EVENT") that would make it
impractical or inadvisable to cause the Registration Statement or such filings
to become effective or to amend or supplement the Registration Statement, but
such suspension shall continue only for so long as such event or its effect is
continuing but in no event will that suspension exceed 90 days. The Company
shall notify each Holder of the existence and, in the case of circumstances
referred to in clause (i) of this Section 7(b), nature of any Suspension Event.
(c) Each Holder agrees, if requested by the Company in the case of a
Company-initiated nonunderwritten offering or if requested by the managing
underwriter or underwriters in a Company- initiated underwritten offering, not
to effect any public sale or distribution of any of the securities of the
Company of any class included in such Registration Statement, including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act (except as part of
such Company-initiated registration), during the 15-day period prior to, and
during the 60-day period beginning on, the date of effectiveness of each
Company-initiated offering made pursuant to such Registration Statement, to the
extent timely notified in writing by the Company or the managing underwriters;
PROVIDED, HOWEVER, that such 60-day period shall be extended by the number of
days from and including the date of the giving of any notice pursuant to Section
2(f) or (g) hereof to and including the date when each Contributor of
Registrable Shares covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
2(g) hereof.
8. BLACK-OUT PERIOD. Following the effectiveness of any
Registration Statement and the filings with any state securities commissions,
each Holder agrees that he will not effect any sales of the Registrable Shares
pursuant to the Registration Statement or any such filings at any time after he
has received notice from the Company to suspend sales as a result of the
occurrence or existence of any Suspension Event or so that the Company may
correct or update the Registration Statement or such filing. Each Holder may
recommence effecting sales of the Shares pursuant to the Registration Statement
or such filings following further notice to such effect from the Company, which
notice shall be given by the Company not later than five (5) days after the
conclusion of any such Suspension Event.
<PAGE> 9
9. ADDITIONAL SHARES. The Company, at its option, may register,
under any registration statement and any filings with any state securities
commissions filed pursuant to this Agreement, any number of unissued Common
Shares of the Company or any Common Shares of the Company owned by any other
shareholder or shareholders of the Company.
10. CONTRIBUTION. If the indemnification provided for in Sections 5
and 6 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the 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, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
PROVIDED, HOWEVER, that in no event shall the obligation of any indemnifying
party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by PRO
RATA allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
Notwithstanding the provisions of this Section 10, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of shares exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
11. NO OTHER OBLIGATION TO REGISTER. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to any Holder
to register the Registrable Shares under the Securities Act.
<PAGE> 10
12. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified, or supplemented or waived without the prior written
consent of (a) the Company and (b) Holders who, at the time of such amendment,
own a majority of the Registrable shares then covered by this Agreement.
Notwithstanding the foregoing, the Company may amend SCHEDULE "A" without the
consent of Holders to reflect (i) a transfer of Units or Common Shares to a
substitute or additional Holder in accordance with the terms hereof; or (ii) a
reduction in the number of Registrable Shares then held by the Holders.
13. NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 2(e) or
Section 6, the Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Gables Residential Trust
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attn: Mr. Marcus E. Bromley
Telecopy: (770) 436-7434
with a copy to: Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attn: Gilbert G. Menna, P.C.
Telecopy: (617) 523-1231
If to the Holder: At the address set forth in SCHEDULE "A".
In addition to the manner of notice permitted above, notices given by
the Company pursuant to Sections 2, 7 and 8 hereof may be effected
telephonically and confirmed in writing thereafter in the manner described
above.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their
<PAGE> 11
respective successors and assigns. This Agreement may not be assigned by a
Holder and any attempted assignment hereof by a Holder will be void and of no
effect and shall terminate all obligations of the Company hereunder; PROVIDED
THAT a Holder may assign his rights hereunder in connection with any of the
following types of dispositions of Acquired Units or of Common Shares issued by
the Company in consideration of Acquired Units:
(i) a disposition to the Holder's spouse, siblings, parents
or any natural or adopted children or other descendants or to any
personal trust in which any such family member or the Holder retains the
entire beneficial interest;
(ii) a disposition by the Holder upon his death to his
estate, executor, administrator or personal representative or to the
Holder's beneficiaries pursuant to a devise or bequest or by laws of
descent and distribution;
(iii) a disposition by the Holder as a gift or other transfer
without consideration; and
(vi) a disposition by the Holder pursuant to a pledge, grant
of security interest or other encumbrance effected in a bona fide
transaction with an unrelated and unaffiliated pledgee;
PROVIDED, FURTHER, however, that any such assignment shall be effective only if,
and only so long as, (a) with respect to any assignment by Briarcliff North Ltd.
(if such entity is a Holder), the assignee of Acquired Units or Common Shares in
such disposition is an accredited investor under Regulation D of the Securities
Act and (b) in all cases, acknowledges such in writing to the Company and the
disposition of Acquired Units or Common Shares to such assignee does not
otherwise cause the Company or the Operating Partnership to be in violation of
applicable federal or state securities laws.
In the event a Holder assigns his rights hereunder, the Shares or Units
shall remain subject to this Agreement and, as a condition of the validity of
such assignment, the transferee shall be required to execute and deliver a
counterpart of this Agreement (except that a pledgee shall not be required to
execute and deliver a counterpart of this Agreement until it forecloses upon
such Shares or Units). Thereafter, such transferee shall be deemed to be a
Holder for purposes of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
<PAGE> 12
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland applicable to contracts
made and to be performed wholly within said State.
17. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
18. ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the 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 such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GABLES RESIDENTIAL TRUST
By: /s/ C. Jordan Clark
------------------------------------
C. Jordan Clark
Senior Vice President
<PAGE> 13
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
HOLDER
[See attached Schedule "A"]
Print Name:
Address for Notice:
------------------
Copy to:
<PAGE> 14
SCHEDULE "A"
Holders and Acquired Units
as of August 21, 1997
<TABLE>
<CAPTION>
Holder Address for Notice Number of
- ------ ------------------ ---------
Acquired Units
--------------
<S> <C> <C>
Brandon Management Corporation 3414 Peachtree Road 9,772
Suite 750
Atlanta, GA 30326
Brannon B. Lesesne, Jr. 3414 Peachtree Road 16,317
Suite 750
Atlanta, GA 30326
The Bristol Company 229 Peachtree Street, N.E. 2,371
Suite 2500
Atlanta, GA 30303
Jean P. Bryant 519 Pierce Avenue 19,923
Macon, GA 31204
Imogene C. Gruenberg 1113 Gatehouse Road 2,325
Highpoint, NC 27262
John A. Chapman, Jr. Trust#1015931 5362 Winding Creek Drive 4,648
Rockford, IL 61114-3510
Richard Hurd, Jr. 1985 Drummond Pond Road 2,325
Alpharetta, GA 30201
Clarence Jacoby 726 2nd Street 4,648
Hancock, MN 56244
Dixon R. McCloy, M.D. 3108 Kings Drive 2,325
Panama City, FL 32405
</TABLE>
<PAGE> 15
Harry E. McKenna 5655 Gulf of Mexico Drive 4,648
Apartment D206
Longboat Key, FL 34228
Fred W. Nichols 456 Glencastle Drive, N.W. 2,325
Atlanta, GA 30327
W. King Sims P. O. Box 550149 4,648
Atlanta, GA 30355
Gene Schmidgall 17 Atlantic Avenue 4,648
Hancock, MN 56244
Richard R. Schmidgall 175 Lions Avenue 4,648
Hancock, MN 56244
William A. Sybers, M.D. Bay Point Box 28210 4,648
Panama City, FL 32411
Howard J. Williams, Jr. 377 Old Club Road 2,325
Macon, GA 31210
Alice D. Wyco 38744 Gratton Road 2,325
Lake Villa, IL 60046
<PAGE> 1
Exhibit 99.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as
of October 17, 1997 by and between GABLES RESIDENTIAL TRUST, a Maryland real
estate investment trust (the "Company") and each of the persons or entities who
are signatories hereto (each, a "Holder").
WHEREAS, each Holder on this day acquired the number of units (such
Holder's "ACQUIRED UNITS") of limited partnership interest ("Units") in Gables
Realty Limited Partnership, a Delaware limited partnership (the "OPERATING
PARTNERSHIP"), set forth next to such Holder's name on SCHEDULE "A" hereto; and
WHEREAS, under the Second Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, dated as of July 24, 1997 (the
"PARTNERSHIP AGREEMENT"), holders of Units may present such Units to the
Operating Partnership for redemption, and any Units so presented may be acquired
by the Company, at the Company's option, for cash or common shares of beneficial
interest, par value $.01 per share ("COMMON SHARES"), of the Company; and
WHEREAS, the Acquired Units of each Holder were issued this day in
connection with the acquisition by the Operating Partnership of certain property
from Rocksprings Apartments, Inc., Markan Apartments, Inc., Markan Villa, Inc.,
Four Taylors, Inc. and HT Apartments, LLC, and in partial consideration of the
transaction relating to the Units acquired this day by the Holders, the Company,
which owns a majority interest in the Operating Partnership, has agreed to
provide the Holders with registration rights with respect to Common Shares,
subject to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"PERSON" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
<PAGE> 2
"REGISTRABLE SHARES" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the sale thereof shall have become
effective under the Securities Act and which have been disposed of under such
Registration Statement, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
the Securities Act. All references in this Agreement to Rule 144 and subsections
thereof shall refer to corresponding provisions of future law.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualification of any of the Registrable Shares and
the preparation of a Blue Sky Memorandum) and compliance with the rules of the
NASD; (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Shares on any
securities exchange or exchanges pursuant to Section 4 hereof; and (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance and compliance.
Registration Expenses shall specifically exclude underwriting discounts and
commissions relating to the sale or disposition of Registrable Shares by the
Holder, the fees and disbursements of counsel representing the Holder, and
transfer taxes, if any, relating to the sale or disposition of Registrable
Shares by the Holder, all of which shall be borne by the Holder in all cases.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers any of the Registrable Shares on an appropriate form, and all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHARES" shall mean any Common Shares issued or to be issued to the
Holders by the Company upon acquisition by the Company of any Acquired Units
presented to the Operating Partnership for redemption.
<PAGE> 3
2. REGISTRATION.
(a) FILING OF SHELF REGISTRATION STATEMENT. Subject to the
conditions set forth in this Agreement, at the written request of any Holder at
any time after the date hereof the Company shall cause to be filed, as soon as
reasonably practicable after the date of such request, a Registration Statement
under Rule 415 under the Securities Act relating to the sale by all Holders of
all Registrable Shares in accordance with the terms hereof, and shall use
reasonable efforts to cause such Registration Statement to be declared effective
by the SEC. The Company agrees to use reasonable efforts to keep the
Registration Statement continuously effective until the earliest of (a) the date
on which the Holders no longer hold any Registrable Shares or (b) the date on
which all of the Registrable Shares held or subsequently acquired by the Holders
have become eligible for sale pursuant to Rule 144(k) promulgated under the
Securities Act and the Company has delivered to the Holder an opinion of counsel
to such effect (hereinafter referred to as the "SHELF REGISTRATION EXPIRATION
DATE").
(b) DEMAND REGISTRATION. Subject to the conditions set forth in this
Agreement, at any time after the Shelf Registration Expiration Date and while
any Registrable Shares are outstanding, the Company shall, at the written
request of any Holder which Holder is unable to sell its Registrable Shares
pursuant to Rule 144(k) under the Securities Act, cause to be filed as soon as
practicable after the date of such request a Registration Statement under Rule
415 under the Securities Act relating to the sale by such Holder of any or all
of the Registrable Shares held by such Holder in accordance with the terms
hereof, and shall use reasonable efforts to cause such Registration Statement to
be declared effective by the SEC as soon as practicable thereafter. The Company
may, in its sole discretion, elect to file the Registration Statement before
receipt of such notice from any Holder. The Company agrees to use reasonable
efforts to keep the Registration Statement continuously effective thereafter
until the date on which such Holder no longer holds any Registrable Shares.
(c) PIGGYBACK REGISTRATION. If at any time after the Shelf
Registration Expiration Date and while any Registrable Shares or Acquired Units
are outstanding (without any obligation to do so) the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
Common Shares solely for cash (other than a registration statement (i) on Form
S-8 or any successor form to such Form or in connection with any employee or
director welfare, benefit or compensation plan, (ii) on Form S-4 or any
successor form to such Form or in connection with an exchange offer, (iii) in
connection with a rights offering exclusively to existing holders of Common
Shares, (iv) in connection with an offering solely to employees of the Company
or its Subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of
the Securities Act), whether or not for its own account, the Company shall give
prompt written notice of such proposed filing to the Holders. The notice
referred to in the preceding sentence shall offer each of the Holders the
opportunity to register such amount of Registrable Shares as they may request (a
"PIGGYBACK REGISTRATION"). Subject to the provisions of Section 3 below, the
Company shall include in such Piggyback Registration, in the registration and
qualification for sale under the blue sky or securities laws of the various
states and in any underwriting in connection therewith, all Registrable Shares
for which the Company has received a written request for inclusion therein
within fifteen (15) calendar days after the notice referred to above has been
given by the Company to the Holders. Each Holder shall be permitted to withdraw
all or part of his Registrable Shares from a Piggyback Registration at any time
prior to
<PAGE> 4
the effective date of such Piggyback Registration. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company and the
managing underwriter advises the Company that the total number of Common Shares
requested to be included in such registration exceeds the number of Common
Shares which can be sold in such offering, the Company will include in such
registration in the following priority: (i) first, all Common Shares the Company
proposes to sell, (ii) second, the full number of applicable Common Shares
requested to be included in such registration by holders of Common Shares with
prior or superior piggyback registration rights and (iii) third, up to the full
number of applicable Registrable Shares and Common Shares requested to be
included in such registration by the Holders and other holders of Common Shares
with piggyback registration rights of similar priority which, in the opinion of
such managing underwriter, can be sold without adversely affecting the price
range or probability of success of such offering (with the number of such
Registrable Shares and other Common Shares of each Holder and such other
holders, respectively, to be included in the Piggyback Registration to be
allocated pro rata among the Holders and such other holders on the basis of the
total number of shares requested to be included in such registration by such
Holder, the other Holders and such other holders of Registrable Shares).
(d) The Company shall notify each Holder of the effectiveness of the
Registration Statement and shall furnish to each Holder the number of copies of
the Registration Statement (including any amendments, supplements and exhibits),
the Prospectus contained therein (including each preliminary prospectus and all
related amendments and supplements) and any documents incorporated by reference
in the Registration Statement or such other documents as each Holder may
reasonably request in order to facilitate his sale of the Registrable Shares in
the manner described in the Registration Statement.
(e) The Company shall prepare and file with the SEC from time to
time such amendments and supplements to the Registration Statement and
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all the Registrable Shares
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by the
Holders as set forth in the Registration Statement or (b) the date on which the
Registration Statement ceases to be effective in accordance with the terms of
this Section 2. Upon five (5) business days' notice, the Company shall file any
supplement or post-effective amendment to the Registration Statement with
respect to the plan of distribution or a Holder's ownership interests in
Registrable Shares that is reasonably necessary to permit the sale of the
Holder's Registrable Shares pursuant to the Registration Statements. The Company
shall file any necessary listing applications or amendments to the existing
applications to cause the Shares registered under any Registration Statement to
be then listed or quoted on the primary exchange or quotation system on which
the Common Shares are then listed or quoted.
(f) The Company shall promptly notify the Holders of, and confirm in
writing, any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus related thereto or for additional
information. In addition, the Company shall promptly notify the Holders of, and
confirm in writing, the filing of the Registration Statement or any Prospectus,
amendment or supplement related thereto or any post-effective amendment to the
Registration Statement and the effectiveness of any post-effective amendment.
<PAGE> 5
(g) At any time when a Prospectus relating to the Registration
Statement is required to be delivered under the Securities Act, the Company
shall immediately notify the Holders of the happening of any event as a result
of which the Prospectus included in the Registration Statement, as then in
effect, includes 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 under which they were made, not
misleading. In such event, the Company shall promptly prepare and furnish to
each Holder a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registrable Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement.
3. STATE SECURITIES LAWS. Subject to the conditions set forth in
this Agreement, the Company shall, in connection with the filing of any
Registration Statement hereunder, file such documents as may be necessary to
register or qualify the Registrable Shares under the securities or "Blue Sky"
laws of such states as a Holder may reasonably request, and the Company shall
use its best efforts to cause such filings to become effective; PROVIDED,
HOWEVER, that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any such state in which it is not
then qualified or to take any action that would subject it to general
jurisdiction in any state where the Company is not now so subject. Once
effective, the Company shall use its best efforts to keep such filings effective
until the earlier of (a) such time as all of the Registrable Shares have been
disposed of in accordance with the intended methods of disposition by such
Holder as set forth in the Registration Statement, (b) in the case of a
particular state, such Holder has notified the Company that he no longer
requires an effective filing in such state in accordance with its original
request for filing or (c) the date on which the Registration Statement ceases to
be effective. The Company shall promptly notify such Holder of, and confirm in
writing, the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Shares for sale under the
securities or "Blue Sky" laws of any jurisdiction or the initiation or threat of
any proceeding for such purpose.
4. EXPENSES. The Company shall bear all Registration Expenses
incurred in connection with the registration of the Registrable Shares pursuant
to this Agreement, except that each Holder shall be responsible for any
brokerage or underwriting commissions and taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
Registrable Shares sold by him and for any legal, accounting and other expenses
incurred by him.
5. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
each Holder against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including without limitation reasonable fees, expenses and
disbursements of attorneys and other professionals), joint or several, arising
out of or based upon any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any Registration
Statement or Prospectus, or upon any untrue or alleged untrue statement of
material fact contained in the Registration Statement or any
<PAGE> 6
Prospectus, or 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 under which they were made, not misleading, provided,
that the Company shall not be liable to a Holder in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with information regarding a Holder or his plan of distribution or ownership
interests which was furnished to the Company for use in connection with the
Registration Statement or the Prospectus contained therein by the Holder or (ii)
such Holder's failure to send or give a copy of the final prospectus furnished
to it by the Company through no fault of the Company at or prior to the time
such action is required by the Securities Act to the person claiming an untrue
statement or alleged untrue statement or omission or alleged omission if such
statement or omission was corrected in such final prospectus.
6. COVENANTS OF THE HOLDER. Each Holder hereby agrees (a) to
cooperate with the Company and to furnish to the Company all such information
concerning his plan of distribution and ownership interests with respect to his
Registrable Shares in connection with the preparation of the Registration
Statement and any filings with any state securities commissions as the Company
may reasonably request, (b) to deliver or cause delivery of the Prospectus
contained in the Registration Statement to any purchaser of the shares covered
by the Registration Statement from the Holder and (c) to indemnify the Company,
its officers, directors, employees, agents, representatives and affiliates, and
each person, if any, who controls the Company within the meaning of the
Securities Act, and each other person, if any, subject to liability because of
his connection with the Company, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either a Registration Statement or the Prospectus contained therein, or 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 under which they were made, not misleading, if and to the extent
that such statement or omission occurs from reliance upon and in conformity with
written information regarding such Holder, his plan of distribution or ownership
interests, which was furnished to the Company by such Holder expressly for use
therein unless such statement or omission was corrected in writing to the
Company not less than two (2) business days prior to the date of the final
prospectus (as supplemented or amended, as the case may be) or (ii) the failure
by such Holder to deliver or cause to be delivered the Prospectus contained in
the Registration Statement (as amended or supplemented, if applicable) furnished
by the Company to such Holder to any purchaser of the shares covered by the
Registration Statement from such Holder through no fault of the Company.
7. SUSPENSION OF REGISTRATION REQUIREMENT.
(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company shall use its best efforts to obtain the
<PAGE> 7
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use its best efforts
to cause the Registration Statement and any filings with any state securities
commission to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period as unforeseen
circumstances exist (including without limitation (i) an underwritten primary
offering by the Company if the Company is advised by the underwriters that sale
of Registrable Shares under the Registration Statement would have a material
adverse effect on the primary offering or (ii) pending negotiations relating to,
or consummation of, a transaction or the occurrence of an event that would
require additional disclosure of material information by the Company in the
Registration Statement or such filing, as to which the Company has a BONA FIDE
business purpose for preserving confidentiality or which renders the Company
unable to comply with SEC requirements) (such unforeseen circumstances being
hereinafter referred to as a "SUSPENSION EVENT") that would make it impractical
or inadvisable to cause the Registration Statement or such filings to become
effective or to amend or supplement the Registration Statement, but such
suspension shall continue only for so long as such event or its effect is
continuing but in no event will that suspension exceed 90 days. The Company
shall notify each Holder of the existence and, in the case of circumstances
referred to in clause (i) of this Section 7(b), nature of any Suspension Event.
(c) Each Holder agrees, if requested by the Company in the case of a
Company-initiated nonunderwritten offering or if requested by the managing
underwriter or underwriters in a Company- initiated underwritten offering, not
to effect any public sale or distribution of any of the securities of the
Company of any class included in such Registration Statement, including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act (except as part of
such Company-initiated registration), during the 15-day period prior to, and
during the 60-day period beginning on, the date of effectiveness of each
Company-initiated offering made pursuant to such Registration Statement, to the
extent timely notified in writing by the Company or the managing underwriters;
PROVIDED, HOWEVER, that such 60-day period shall be extended by the number of
days from and including the date of the giving of any notice pursuant to Section
2(f) or (g) hereof to and including the date when each Contributor of
Registrable Shares covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
2(g) hereof.
8. BLACK-OUT PERIOD. Following the effectiveness of any
Registration Statement and the filings with any state securities commissions,
each Holder agrees that he will not effect any sales of the Registrable Shares
pursuant to the Registration Statement or any such filings at any time after he
has received notice from the Company to suspend sales as a result of the
occurrence or existence of any Suspension Event or so that the Company may
correct or update the Registration Statement or such filing. Each Holder may
recommence effecting sales of the Shares pursuant to the Registration Statement
or such filings following further notice to such effect from the Company, which
notice shall be given by the Company not later than five (5) days after the
conclusion of any such Suspension Event.
<PAGE> 8
9. ADDITIONAL SHARES. The Company, at its option, may register,
under any registration statement and any filings with any state securities
commissions filed pursuant to this Agreement, any number of unissued Common
Shares of the Company or any Common Shares of the Company owned by any other
shareholder or shareholders of the Company.
10. CONTRIBUTION. If the indemnification provided for in Sections 5
and 6 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the 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, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
PROVIDED, HOWEVER, that in no event shall the obligation of any indemnifying
party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by PRO
RATA allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
Notwithstanding the provisions of this Section 10, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of shares exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
11. NO OTHER OBLIGATION TO REGISTER. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to any Holder
to register the Registrable Shares under the Securities Act.
12. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified, or supplemented or waived without the prior written
consent of (a) the Company and (b) Holders who, at the time of such amendment,
own a majority of the Registrable shares then covered by this Agreement.
Notwithstanding the foregoing, the Company may amend SCHEDULE "A" without the
consent of Holders to reflect (i) a transfer of Units or Common Shares to a
substitute or
<PAGE> 9
additional Holder in accordance with the terms hereof; or (ii) a reduction in
the number of Registrable Shares then held by the Holders.
13. NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the respective parties at
the following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 2(e) or
Section 6, the Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Gables Residential Trust
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attn: Mr. Marcus E. Bromley
Telecopy: (770) 436-7434
with a copy to: Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attn: Gilbert G. Menna, P.C.
Telecopy: (617) 523-1231
If to the Holder: At the address set forth in SCHEDULE "A".
In addition to the manner of notice permitted above, notices given by
the Company pursuant to Sections 2, 7 and 8 hereof may be effected
telephonically and confirmed in writing thereafter in the manner described
above.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement may not be assigned by a Holder and any attempted assignment
hereof by a Holder will be void and of no effect and shall terminate all
obligations of the Company hereunder; PROVIDED THAT a Holder may assign his
rights hereunder in connection with any of the following types of dispositions
of Acquired Units or of Common Shares issued by the Company in consideration of
Acquired Units:
(i) a disposition to the Holder's spouse, siblings, parents
or any natural or adopted children or other descendants or to any
personal trust in which any such family member or the Holder retains the
entire beneficial interest;
<PAGE> 10
(ii) a disposition by the Holder upon his death to his
estate, executor, administrator or personal representative or to the
Holder's beneficiaries pursuant to a devise or bequest or by laws of
descent and distribution;
(iii) a disposition by the Holder as a gift or other transfer
without consideration;
(iv) a disposition by the Holder pursuant to a pledge, grant
of security interest or other encumbrance effected in a bona fide
transaction with an unrelated and unaffiliated pledgee;
(v) a disposition by any of Rocksprings Apartments, Inc.,
Markan Villa, Inc. and/or Four Taylors, Inc. to any of its shareholders;
and
(vi) a disposition by The Herbert Taylor Trust U/A 9/16/57 to
any of its beneficiaries.
PROVIDED, FURTHER, however, that any such assignment shall be effective only if,
and only so long as, (a) with respect to any assignment by a Holder, the
assignee of Acquired Units or Common Shares in such disposition is an accredited
investor under Regulation D of the Securities Act and (b) in all cases,
acknowledges such in writing to the Company and the disposition of Acquired
Units or Common Shares to such assignee does not otherwise cause the Company or
the Operating Partnership to be in violation of applicable federal or state
securities laws.
In the event a Holder assigns his rights hereunder, the Shares or Units
shall remain subject to this Agreement and, as a condition of the validity of
such assignment, the transferee shall be required to execute and deliver a
counterpart of this Agreement (except that a pledgee shall not be required to
execute and deliver a counterpart of this Agreement until it forecloses upon
such Shares or Units). Thereafter, such transferee shall be deemed to be a
Holder for purposes of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland applicable to contracts
made and to be performed wholly within said State.
17. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
<PAGE> 11
18. ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the 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 such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GABLES RESIDENTIAL TRUST
By: /s/ C. Jordan Clark
--------------------------------------
C. Jordan Clark
Senior Vice President
<PAGE> 12
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
HOLDER:
ROCKSPRINGS APARTMENTS, INC., A GEORGIA
CORPORATION
By: /s/ Charles E. Taylor
-----------------------------------
Charles E. Taylor, President
Attest: /s/ Judith G. Taylor
-------------------------------
Judith G. Taylor, Secretary
[CORPORATE SEAL]
MARKAN APARTMENTS, INC., A GEORGIA
CORPORATION
By: /s/ Judith G. Taylor
-----------------------------------
Judith G. Taylor, President
Attest: /s/ Charles E. Taylor
-------------------------------
Charles E. Taylor, Secretary
[CORPORATE SEAL]
MARKAN VILLA, INC., A GEORGIA
CORPORATION
By: /s/ Charles E. Taylor
-----------------------------------
Charles E. Taylor, President
Attest: /s/ Judith G. Taylor
-------------------------------
Judith G. Taylor, Secretary
[CORPORATE SEAL]
<PAGE> 13
SCHEDULE "A"
Holders and Acquired Units
as of October 17, 1997
<TABLE>
<CAPTION>
Holder Address for Notice Number of Acquired Units
- ------ ------------------ ------------------------
<S> <C> <C>
MARKAN VILLA, INC. c/o Mr. Charles E. Taylor 97,100
2021 Monroe Drive, N.E.
Atlanta, GA 30324
FOUR TAYLORS, INC. c/o Mr. Charles E. Taylor 50,975
2021 Monroe Drive, N.E.
Atlanta, GA 30324
ROCKSPRINGS c/o Mr. Charles E. Taylor 207,515
APARTMENTS, INC. 2021 Monroe Drive, N.E.
Atlanta, GA 30324
THE HERBERT TAYLOR 2021 Monroe Drive, N.E. 97,682
TRUST U/A 9/16/57 Atlanta, GA 30324
</TABLE>
