THIRD AMENDMENT TO CONTRIBUTION AGREEMENT
Exhibit 10.19
THIRD AMENDMENT TO
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT
THIS THIRD AMENDMENT TO CONTRIBUTION AGREEMENT (the “Amendment”) is made and entered into as
of June 21, 2010, by and among Welsh Enterprises, LLC (“Welsh Enterprises”), Welsh Holdings, LLC
(“Welsh Holdings”), Welsh Ventures, LLC (“Welsh Ventures”), and Welsh Property Trust, L.P. (the
“Operating Partnership”).
RECITALS
X. Xxxxx Enterprises, Welsh Holdings, Welsh Ventures, and the Operating Partnership are
parties to that certain Contribution Agreement dated February 24, 2010, and effective as of March 1, 2010, as amended by that certain First Amendment to Contribution Agreement dated as of May 10,
2010 and as further amended by that certain Second Amendment to Contribution Agreement dated June
3, 2010 (as amended, the “Contribution Agreement”), pursuant to which Welsh Enterprises, Welsh
Holdings, and Welsh Ventures agreed to contribute their ownership interests in WelshCo, LLC
(“WelshCo”), and Welsh Securities LLC (“Welsh Securities” and, collectively with WelshCo, the
“Contributed Entities”) to the Operating Partnership.
B. The parties to the Contribution Agreement desire to further amend the Contribution
Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant and agree to be bound as
follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Contribution Agreement, unless the context shall
otherwise require.
2. Contribution Value and Earn-Out. Section 1.02(b) of the Contribution Agreement is
hereby deleted in its entirety and replaced with the following:
”(b) Earn-Out Payment. If, at the end of the three (3) year period commencing on the
first trading day of the REIT Common Stock on the New York Stock Exchange (the “First
Trading Date”) and ending on the Earn-Out Determination Date (as defined below), the
percentage change in the price per share of the REIT Common Stock from the First Trading
Date to and including the Earn-Out Determination Date (the “Earn-Out Period”) is greater
than the percentage change in the FTSE NAREIT All REIT Index (the “REIT Index”), whether
such percentage change is positive, negative or zero (i.e., the REIT outperforms the REIT
Index), during the Earn-Out Period by three percent (3%) (the “Earn-Out Condition”), the
Contributors, collectively, shall receive a number of OP units (the “Earn-Out OP Units”)
equal to $15,000,000, divided by the IPO Price (the
“Earn-Out Payment”), which Earn-Out Payment will
then be multiplied by the Adjustment Factor (as
defined in the Operating Partnership Agreement) to determine the
number of Earn-Out OP Units. The “Earn-Out
Determination Date” shall be the third
anniversary date of the First Trading Date (the
“Third Anniversary Date”); provided,
however, that if the Third Anniversary Date is not a trading day on the New York Stock
Exchange, the first trading day on the New York Stock Exchange following the Third
Anniversary Date shall be the “Earn-Out Determination Date. In
determining whether the Earn-Out Condition has been met, the change
in the price per share of the REIT Common Stock shall be adjusted to
take into consideration the occurrence of any events described in the
definition of Adjustment Factor.”
3. Term of Agreement. Section 2.06 of the Contribution
Agreement is hereby amended to delete the phrase “June 30,
2010” and to replace it with “July 31, 2010.”
4. Remaining Terms. Except as expressly set forth in this Amendment, all other terms
and provisions of the Contribution Agreement shall remain in full force and effect.
5. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of any laws that might otherwise govern under
applicable principles of conflicts of laws thereof. Each of the parties hereto hereby consents to
(i) the non-exclusive jurisdiction of the courts of the State of Delaware, and (ii) service of
process by mail.
6. Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which shall constitute but one agreement.
7. Binding Effect. This Amendment shall be binding upon the parties to the
Contribution Agreement, and their respective successors and permitted assigns.
8. Third Party Beneficiaries. This Amendment shall not confer any rights or remedies
upon any person or entity other than the parties to the Contribution Agreement, and their
respective successors and permitted assigns.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
| WELSH PROPERTY TRUST, L.P. | ||||||
| By: | WELSH PROPERTY TRUST, LLC | |||||
| Its General Partner | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||||
| Name: Xxxxx X. Xxxxxxxxxxx | ||||||
| Title: Chief Executive Officer | ||||||
| WELSH ENTERPRISES, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||||
| Name: Xxxxx X. Xxxxxxxxxxx | ||||||
| Title: President | ||||||
| WELSH HOLDINGS, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Chief Manager | ||||||
| WELSH VENTURES, LLC | ||||||
| By: | /s/ Xxxx Xxxx | |||||
| Name: Xxxx Xxxx | ||||||
| Title: Chief Manager | ||||||
