EXHIBIT 2.01
FORM OF
SUBSCRIPTION AGREEMENT
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SUBSCRIPTION AGREEMENT, effective as of April 23, 1997, by and among
DEL-LPL Limited Partnership, a Delaware limited partnership ("DEL-LPL"), DEL-
LPAML Limited Partnership, a Delaware limited partnership ("DEL-LPAML"),
DEL/LaSalle Finance Company, L.L.C., an Illinois limited liability company
("DEL/LaSalle"), DSA-LSAM, Inc., a Delaware corporation ("DSA-LSAM"), DSA-LSPL,
Inc. ("DSA-LSPL"), a Delaware corporation, Xxxxxxxxx Holdings, LLC, a Delaware
limited liability company ("G-LLC"), Xxxxxxxxx-LPL Holdings, LLC, a Delaware
limited liability company ("G-LPL" and, together with DEL-LPL, DEL-LPAML,
DEL/LaSalle, DSA-LSPL, DSA-LSAM, G-LLC and G-LPL, the "Purchasers"), and LaSalle
Partners Incorporated, a Maryland corporation (the "Corporation").
WHEREAS, the Purchasers collectively hold all of the general and
limited partnership interests in LaSalle Partners Limited Partnership, a
Delaware limited partnership ("LPL"), and LaSalle Partners Management Limited
Partnership, a Delaware limited partnership ("LPML");
WHEREAS, LPL and LPML have caused the Corporation to be formed with an
authorized capitalization of 110,000,000 shares, consisting of 100,000,000
shares of Common Stock, par value $.01 per share (the "Common Stock"), and
10,000,000 shares of preferred stock, par value $.01 per share (the "Preferred
Stock");
WHEREAS, LPL holds ten shares of the Common Stock, which shares
constitute on the date hereof all of the issued and outstanding shares of the
Corporation;
WHEREAS, each of the Purchasers desires to exchange all of their
respective general and limited partnership interests in LPL and LPML, upon the
terms and conditions set forth in this Agreement, for shares of Common Stock
(the "Exchange") such that immediately thereafter all of the issued and
outstanding Common Stock of the Corporation will be owned by the Purchasers; and
WHEREAS, immediately following the Exchange, the Corporation will sell
up to 4,000,000 shares of Common Stock (the "Public Offering Shares") to the
public pursuant to a "firm commitment" underwriting agreement (the "IPO"); and
WHEREAS, the transfers to the Corporation by the Purchasers of all of
the partnership interests in LPL and LPML, together with the transfer of cash to
the Corporation upon the closing of the IPO, shall constitute a transaction
described in Section 351 of the Internal Revenue Code of 1986, as amended, and
this Subscription Agreement is a plan or agreement which defines the rights of
the transferors and transferees as described in Treasury Regulation Section
1.351-1(a)(1).
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
Section 1. Agreement to Issue and Purchase Securities. The
Corporation hereby agrees to issue to each Purchaser that number of shares of
Common Stock set forth opposite such Purchaser's name on Exhibit A hereto (such
shares of Common Stock being hereinafter referred to as the "Securities") in
exchange for the transfer by such Purchaser to the Corporation of its entire
general and limited partnership interest in LPL and LPML.
Section 2. The Closing. The closing (the "Closing") of the
transactions contemplated by this Agreement shall be held immediately prior to
the closing of the IPO. The date of the Closing is herein referred to as the
"Closing Date."
Section 3. Representations and Warranties of the Corporation. The
Corporation represents and warrants that:
3.1 The Corporation is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland and has all
requisite corporate power and authority to own its assets and properties and to
conduct its business.
3.2 The Corporation has full legal right, power and authority to
execute and deliver this Agreement and to issue and deliver the Securities, all
of which have been duly authorized by all necessary corporate action. The
execution and delivery of this Agreement do not, and the issuance of the
Securities and the performance of this Agreement in accordance with its terms
will not, (i) violate or conflict with any provisions of any law, rule or
regulation applicable to the Corporation, (ii) violate or conflict with the
Articles of Incorporation or the Bylaws of the Corporation, (iii) violate or
conflict with or result in the breach of any contract, agreement, instrument,
lease or license to which the Corporation is
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a party or by which it is bound, (iv) result in the creation of any encumbrance
or charge upon any of the Corporation's assets or (v) violate any order,
judgment, injunction, award or decree applicable to the Corporation of any
court, arbitrator or governmental or regulatory body.
3.3 This Agreement constitutes the valid and legally binding
obligation of the Corporation, enforceable against the Corporation in accordance
with its terms, except to the extent that its enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally and by principles of equity regarding
the availability of remedies.
3.4 The Securities, when issued and delivered pursuant to this
Agreement, will be validly issued, fully paid and nonassessable.
3.5 The authorized capital stock of the Corporation consists solely
of (a) 100,000,000 shares of Common Stock, of which 16,200,000 shares will be
issued and outstanding upon consummation of the IPO, and (b) 10,000,000 shares
of Preferred Stock, none of which will be issued and outstanding upon
consummation of the IPO.
Section 4. Representations and Warranties of Each Purchaser. Each
Purchaser, severally but not jointly, represents and warrants to the other
parties hereto that:
4.1 Such Purchaser has full legal right, power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement do not, and
the performance of this Agreement in accordance with its terms will not, (i)
violate or conflict with any law, rule or regulation applicable to such
Purchaser, (ii) violate or conflict with the limited partnership agreement,
certificate of incorporation, bylaws or limited liability agreement, as
applicable, of such Purchaser, (iii) violate or conflict with or result in the
breach of any contract, agreement, instrument, lease or license to which such
Purchaser is a party or by which such Purchaser is bound, (iv) result in the
creation of any encumbrance or charge upon the general or limited partnership
interests in LPL and LPML held by such Purchaser or (v) violate any order,
judgment, injunction, award or decree applicable to such Purchaser of any court,
arbitrator or governmental or regulatory body.
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4.2 This Agreement constitutes the valid and legally binding
obligation of such Purchaser enforceable against such Purchaser in accordance
with its terms, except to the extent that its enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally and by principles of equity regarding
the availability of remedies.
4.3 The general and limited partnership interests in LPL and LPML
held by the Purchasers are the only partnership or other ownership interests in
LPL and LPML outstanding; upon consummation of the transactions contemplated by
this Agreement, the Corporation will acquire good and valid title to the
partnership interests in LPL and LPML held by such purchaser, free and clear of
any liens, claims, charges or encumbrances of any kind whatsoever.
4.4 Such Purchaser, as of the date hereof, has, and as of the Closing
Date, will have:
(a) acknowledged that neither it nor anyone acting on its behalf
has directly or indirectly offered the Securities or any part thereof for sale
to, or solicited any offer to buy the same from, any other person;
(b) acknowledged that the Securities will not be registered as
of the Closing Date under the Securities Act by reason that the sale
contemplated hereby is exempt from registration pursuant to Section 4 of the
Securities Act of 1933, as amended (the "Securities Act"), and that reliance of
the Corporation on such exemption is predicated in part on the representations
set forth in this Section 4.4;
(c) represented and warranted that the Securities are being
acquired by it for its own account and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act,
except for the distribution by (i) G-LPL of all the Securities held by it to its
members and (ii) G-LLC of all of the Securities held by it either (x) to an
affiliated limited liability company, which interests will be transferred into
three separate trusts whose beneficiaries are members of G-LPL or members of
their immediate family or (y) to its members or trusts whose beneficiaries are
members of G-LPL or members of their immediate family (the distributees set
forth in this Section 4.4(c), collectively, the "Xxxxxxxxx Transferees");
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(d) represented and warranted that it has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment, and has the ability to suffer the total loss
of its investment;
(e) represented and warranted that in making the decision to
acquire the Securities, such Purchaser has relied upon independent investiga-
tions made by such Purchaser, and to the extent believed appropriate by such
Purchaser, by such Purchaser's own professional, financial, tax and other
advisors;
(f) represented and warranted that it has had access prior to
its acquisition of the Securities to such information relating to the
Corporation as it desired and that it has had the opportunity to ask questions
of and receive answers from the Corporation concerning the terms and conditions
of the offering of the Securities and the IPO and to obtain additional
information (to the extent the Corporation possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to it or to which it had access;
(g) represented and warranted that the offering to such
Purchaser was made only through direct personal communication between such
Purchaser and a representative of the Corporation and not through public
solicitation or advertising;
(h) acknowledged that it understands that the Securities may not
be sold, transferred or otherwise disposed of without registration under the
Securities Act or an exemption therefrom and that in the absence of an effective
registration statement covering the Securities or an available exemption from
registration under the Securities Act, the Securities must be held indefinitely;
and
(i) acknowledged that it has not entered into any agreement to
sell or otherwise dispose of any of the Securities to be received by it and has
no intention to sell or otherwise dispose of its Securities; provided, that (i)
DEL/LaSalle intends to grant to the underwriters participating in the IPO an
option to purchase up to 600,000 shares of the Common Stock to be received by it
pursuant to this Agreement, for the purpose of covering over-allotments, if any
(the "Option Grant"), (ii) G-LPL and G-LLC intend to distribute all of their
Securities to the Xxxxxxxxx Transferees.
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Section 5. Conditions Precedent to the Obligations of the Parties.
5.1 Conditions Precedent to the Obligations of the Corporation. The
obligation of the Corporation to consummate the transactions contemplated hereby
on the Closing Date is subject, at its option, to (i) the representations and
warranties of the Purchasers being true and correct on the Closing Date with the
same effect as if such representations and warranties had been made at and as of
that time and (ii) the concurrent closing of the IPO.
5.2 Conditions Precedent to the Obligations of the Purchasers. The
obligation of the Purchasers to consummate the transactions contemplated hereby
on the Closing Date is subject, at their option, to (i) the representations and
warranties of the Corporation being true and correct on the Closing Date with
the same effect as if such representations and warranties had been made at and
as of such time, (ii) the concurrent closing of the IPO and (iii) the delivery
of a true, correct and complete copy of an executed underwriting agreement
entered into in connection with the IPO.
Section 6. Transactions at Closing. At the Closing:
6.1 Each Purchaser will deliver to the Corporation instruments
assigning their entire limited and general partnership interests in LPL and
LPML.
6.2 The Corporation will deliver to each Purchaser certificates (in
such denominations and registered in such names as each Purchaser may request)
representing the number of shares of Common Stock set forth opposite such
Purchaser's name on Exhibit A hereto.
Section 7. Miscellaneous.
7.1 No Resale. (a) Except as otherwise provided in the Registration
Rights Agreement, dated April 22, 1997 (the "Registration Rights Agreement"),
by and among the Corporation, LPL, LPML, DEL-LPL, DEL-LPAML, DSA-LSPL, DSA-LSAM
and G-LLC and its permitted assignees, each Purchaser agrees and acknowledges
that it will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any Securities (each a "transfer") unless:
(i) the transfer is exempt from the registration requirements of the Securities
Act and any applicable state securities laws; (ii) if the Corporation so
requests, the Company receives from the transferor an unqualified opinion of
counsel that such transfer may be affected without registration under the
Securities Act and any applicable state securities laws; and (iii) the
transferee shall agree in writing, in form and substance satisfactory to the
Corporation, to become, and becomes, bound by the restrictions on transfer
applicable to a
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Purchaser contained in this Section 7.1; provided, that such restrictions shall
not apply to the sale of up to 600,000 shares of Common Stock by DEL/LaSalle
pursuant to the Option Grant. Each subsequent holder of the Securities, by
taking and holding the same shall be deemed to represent and warrant to the
parties hereto the representations and warranties set forth in Sections 4.4(a) -
(f), (h) and (i).
(b) Any purported transfer in violation of this Section 7.1
shall be null and void and of no force or effect.
(c) The restrictions on transfer contained in this Section 7.1
shall not apply to any transfer pursuant to an effective registration statement
under the Securities Act or Rule 144 under the Securities Act as such rule may
be amended from time to time, and in compliance with all applicable state
securities laws.
7.2 Legends. Each certificate representing shares of Common Stock
issued hereunder shall bear substantially the following legend (unless and until
the Corporation determines, based on the advice of counsel, that such legend is
no longer required to appear thereon):
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS SUCH SHARES HAVE BEEN REGISTERED UNDER THAT
ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
PROVISIONS OF A SUBSCRIPTION AGREEMENT EFFECTIVE AS OF APRIL 23, 1997, BY
AND AMONG DEL-LPL LIMITED PARTNERSHIP, DEL-LPAML LIMITED PARTNERSHIP,
DEL/LASALLE FINANCE COMPANY, L.L.C., DSA-LSAM, INC., DSA-LSPL, INC.,
XXXXXXXXX HOLDINGS L.L.C., XXXXXXXXX-LPL HOLDINGS, L.L.C. AND LASALLE
PARTNERS INCORPORATED, TO WHICH REFERENCE IS MADE FOR THE TERMS AND
PROVISIONS THEREOF. A COPY OF THE SUBSCRIPTION AGREEMENT MAY BE OBTAINED
UPON REQUEST FROM THE SECRETARY OF THE CORPORATION AND MAY BE INSPECTED AT
THE PRINCIPAL OFFICE OF THE CORPORATION."
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7.3 Waiver. Execution of this Agreement shall constitute the waiver
of each Purchaser of any restrictions or prohibitions on the consummation of the
Exchange or of any of the other transactions contemplated hereby (including
restrictions on the transfer by a partner of either limited partnership or
general partnership interests) contained in the partnership agreement pursuant
to which LPL or LPML was formed (as each such agreement is currently in effect).
At or prior to the Closing, the Purchasers shall take any and all actions, and
the general partners of LPL and LPML shall make any filings and notifications
under the laws of any jurisdiction, necessary to effect such waivers.
7.4 Amendment, Extension and Waiver Entire Agreement. At any time
prior to the Closing Date, the Company and the Purchasers may (a) amend this
Agreement, (b) extend the time for the performance of any of the obligations or
other acts of the parties hereto, (c) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (d) waive compliance with any of the agreements or
conditions contained herein. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto. Any
agreement on the part of a party hereto to any extension or waiver under this
Section 7.4 shall be valid only if set forth in an instrument in writing signed
on behalf of such party. Except with respect to the Registration Rights
Agreement, this Agreement constitutes the entire agreement between the parties
and supersedes and cancels any and all prior agreements between the partes
relating to the subject matter hereof.
7.5 Termination of Agreement. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual consent of the parties hereto; and
(b) by the Corporation or any of the Purchasers if the Closing
does not occur on or before November 15, 1997; provided that neither the
Corporation nor any Purchaser shall be entitled to terminate this Agreement
pursuant to this Section 7.5(b) if such party's knowing or willful breach of
this Agreement has prevented the consummation of the transactions contemplated
hereby.
7.6 Notices. All notices, requests, demands and other communications
made under or by reason of the provisions of this Agreement will be in writing
and will be given by hand-delivery, certified or registered mail, return receipt
requested, telex, telecopier (with a copy also sent by hand delivery or air
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courier, which shall not alter the time at which the telecopier notice is deemed
received), or air courier to the parties at the addresses set forth below. Such
notices shall be deemed given: at the time personally delivered, if delivered by
hand with receipt acknowledged; at the time received if sent certified or
registered mail; when answered back, if telexed; upon transmission thereof by
the sender and issuance by the transmitting machine of a confirmation slip that
the number of pages constituting the notice have been transmitted without error,
if telecopied, and the first business day after timely delivery to the courier,
if sent by air courier.
(a) If to DEL-LPL, DEL-LPAML or DEL/LaSalle to:
DEL-LPL Limited Partnership
c/o LaSalle Partners Incorporated
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx & Associates
Suite 4322
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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(b) If to DSA-LSPL or DSA-LSAM to:
DSA-LSAM, Inc.
DSA-LSPL, Inc.
c/o Dai-ichi
Life (U.S.A.), Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx LLP
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Ko-Xxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to G-LLC or G-LPL to:
Xx. Xxxxxxx Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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or to such other person or address as such parties shall furnish to the
Corporation in writing.
(d) If to the Corporation, to:
LaSalle Partners Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxx & Associates
Suite 4322
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other person or address as the Corporation shall furnish to the
Purchasers in writing.
7.7 Assignment. The Corporation and each Purchaser shall have the
right at any time or from time to time to assign their rights and delegate their
obligations under this Agreement to one or more of their affiliates or, in the
case of G-LLC and G-LPL, to the Xxxxxxxxx Transferees, provided, however, that
no such assignment or delegation will relieve the assigning party from its
obligations hereunder. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns.
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7.8 Governing Law. This Agreement will be governed and construed and
enforced in accordance with the laws of the State of Maryland, without giving
effect to the conflicts-of-laws provisions thereof.
7.9 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.10 Headings. The headings of the Sections and Articles of this
Agreement are inserted for convenience only and shall not constitute a part
thereof or affect in any way the meaning or interpretation of this Agreement.
7.11 Transfer Restrictions. The Purchasers hereby agree that the
Corporation may instruct the transfer agent for its Common Stock that the shares
of Common Stock issued hereunder have been issued without registration under the
Securities Act in a transaction not involving any public offering, and, to the
extent consistent with the provisions of this agreement, may give appropriate
"stop transfer" instructions with respect to such shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
LaSalle Partners Incorporated
By:
-----------------------------------
Name:
Title:
DEL-LPL Limited Partnership
By:
-----------------------------------
Name:
Title:
DEL-LPAML Limited Partnership
By:
-----------------------------------
Name:
Title:
DEL/LaSalle Finance Company, L.L.C.
By:
-----------------------------------
Name:
Title:
DSA-LSAM, Inc.
By:
-----------------------------------
Name:
Title:
DSA-LSPL, Inc.
By:
-----------------------------------
Name:
Title:
Xxxxxxxxx Holdings LLC
By:
-----------------------------------
Name:
Title:
Xxxxxxxxx-LPL Holdings, LLC
By:
-----------------------------------
Name:
Title:
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Exhibit A
Purchaser Shares
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DEL-LPL Limited Partnership 5,054,175
DEL-LPAML Limited Partnership 891,913
DEL/LaSalle Finance Company, L.L.C. 1,826,548
DSA-LSAM, Inc. 334,705
DSA-LSPL, Inc. 1,896,660
Xxxxxxxxx Holdings, LLC 1,727,027
Xxxxxxxxx-LPL Holdings, LLC 468,972
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12,200,000
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