REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated June 30,
1998, is entered into by and among Meridian Industrial Trust, Inc., a
Maryland corporation ("MIT"), and the securityholders listed on the signature
pages hereto (individually, a "HOLDER" and collectively, the "HOLDERS").
WHEREAS, concurrently herewith, MIT, Meridian Gateway, Inc., a Delaware
corporation and a wholly-owned subsidiary of MIT ("MERGER SUB"), DPI-Venture
I, Inc., an Ohio corporation ("DPI"), and the stockholders of DPI are
entering into that certain Agreement and Plan of Merger of even date herewith
(the "MERGER AGREEMENT"), providing for the merger (the "MERGER") of DPI with
and into Merger Sub (capitalized terms used without definition herein having
the meanings ascribed thereto in the Merger Agreement);
WHEREAS, the Holders are the record and beneficial owners of the number
of shares of DPI Common Stock without par value (the "DPI COMMON STOCK") set
forth in Column I of SCHEDULE I attached hereto, which will be converted
into, and each Holder will receive, the number of shares of MIT Common Stock
as set forth in Column II of SCHEDULE I opposite each Holder's name; and
WHEREAS, pursuant to the terms of the Merger Agreement, MIT has agreed
to register the MIT Common Stock to be received by each Holder pursuant to
the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINITIONS. As used herein, the following terms shall
have the meanings indicated.
(a) "AFFILIATE" shall have the meaning ascribed to it in Rule 144
of the Securities Act.
(b) "COMMISSION" shall mean the United States Securities and
Exchange Commission.
(c) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934.
(d) "INDEMNIFYING PARTY" shall have that meaning ascribed to it in
Section 4.3 of this Agreement.
(e) "INDEMNIFIED PARTY" shall have that meaning ascribed to it in
Section 4.3 of this Agreement.
(f) "INSPECTORS" shall have that meaning ascribed to it in Section
2.2(c) of this Agreement.
(g) "MIT COMMON STOCK" shall mean the common stock, par value $.001
per share, of MIT.
(h) "NYSE" shall mean the New York Stock Exchange or any securities
exchange or quotation system on which similar securities issued by MIT are
then listed.
(i) "RECORDS" shall have that meaning ascribed to it in Section 2.2(c)
of this Agreement.
(j) "REGISTRABLE SECURITIES" shall mean the aggregate number of
shares of MIT Common Stock listed in Column II of SCHEDULE I hereto;
PROVIDED, HOWEVER, that no Holder shall have the right to have his or her
MIT Common Stock registered under this Agreement, when (x) such securities
are no longer held of record by such Holder or (y) the Holder has the
right to resell such securities without the requirement of an effective
registration statement under the Securities Act, whether pursuant to
Rule 144 under the Securities Act or otherwise.
(k) "REGISTRATION STATEMENT" shall have that meaning ascribed to it
in Article 2 of this Agreement.
(l) "SECURITIES ACT" shall mean the Securities Act of 1933.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.1 REGISTRATION STATEMENT. On or before the date that is six
months following the Effective Time, MIT shall file a registration statement
on Form S-3 or amend an existing MIT registration statement on Form S-3 or
other appropriate form pursuant to Rule 415 under the Securities Act, or
other similar rule of the Commission covering the resale by the Holders of
the Registrable Securities set forth in Column II of SCHEDULE I hereto
(however constituted, hereinafter referred to as the "REGISTRATION
STATEMENT"). MIT shall use all commercially reasonable efforts to cause the
Registration Statement to be declared effective and to keep the Registration
Statement continuously effective for a period of two years following the date
on which the Registration Statement is first declared effective or, if
sooner, until the date on which each Holder shall have sold such securities,
or is otherwise able to sell all of such securities then held by such Holder
without the requirement of an effective registration statement under the
Securities Act, whether pursuant to
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Rule 144(k) under the Securities Act or otherwise. MIT further agrees, if
necessary, to amend or supplement the Registration Statement when required by
the registration form, by the instructions applicable to Form S-3, or by the
Securities Act or the rules and regulations thereunder and at the request of
a Holder whenever a Holder has assigned such Holder's rights to have the
resale of such Holder's Registrable Securities registered hereunder to
another Holder in accordance with the terms of this Agreement.
Section 2.2 REGISTRATION PROCEDURES. MIT will as expediently as
commercially possible:
(a) Furnish to each Holder such number of copies of the
Registration Statement, any amendments thereto, any documents incorporated by
reference therein, the prospectus included in the Registration Statement,
including any preliminary prospectus, and such other documents as such Holder
may reasonably request in writing in order to facilitate the disposition of
the Registrable Securities owned by such Holder;
(b) Promptly notify each Holder of Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a
supplement to such prospectus or an amendment of the Registration Statement
necessary in order to maintain the effectiveness of the Registration
Statement and to ensure that such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading,
and to promptly file with the Commission and make available to such Holder
any such supplemented prospectus or amended Registration Statement;
(c) Make available for inspection by the Holders, and any attorney,
accountant, or other professional retained by the Holders (collectively, the
"INSPECTORS") all financial and other records, pertinent corporate documents,
and properties of MIT (collectively, the "RECORDS") as shall be reasonably
necessary to enable such Inspectors to exercise their due diligence
responsibility with respect to the Registration Statement, and cause MIT
officers, directors, and employees to supply all information reasonably
requested by any such Inspectors in connection with the Registration
Statement. Records which MIT determines, in good faith, to be confidential
and which it notifies the Inspectors are confidential shall not be disclosed
by the Inspectors unless in the judgment of counsel to MIT the disclosure of
such Records is necessary to avoid or correct a misstatement or omission in
the Registration Statement, or the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction.
Each Holder agrees that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of MIT unless and until
such is made generally available to the public. Each Holder further agrees
that it will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to MIT and allow MIT, at its
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential. MIT may require such Holder to promptly furnish in
writing to MIT such information regarding the distribution of the Registrable
Securities as it may from time to time reasonably request and such other
information regarding such Holder as may be legally required in connection
with such registration. Each Holder agrees that, upon receipt of written
notice from MIT
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of the happening of any event of the kind described in Section 2.2(b) hereof,
such Holder will immediately discontinue the disposition of Registrable
Securities pursuant to the Registration Statement until such Holder's receipt
of the copies of the revised prospectus contemplated by Section 2.2(b)
hereof, and, if so directed by MIT, such Holder will deliver to MIT all
copies, other than permanent file copies then in such Holder's possession, of
the most recent prospectus covering such MIT Common Stock at the time of
receipt of such notice;
(d) Use every reasonable effort to register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as each Holder shall reasonably request, and do any and all
other acts and things which may be necessary under such securities or blue
sky laws to enable each such Holder to consummate the public sale or other
disposition in such jurisdictions of the Registrable Securities owned by such
Holder, except that MIT shall not for any such purpose be required to qualify
to do business as a foreign corporation in any jurisdiction wherein it is not
so qualified;
(e) Within a reasonable time before each filing of the
Registration Statement or prospectus, or amendments or supplements thereto
with the Commission (or any materials to be provided to the staff of the
Commission), furnish to R. Xxxxxxx Xxxxxxx, as representative of the other
Holders, copies of such documents proposed to be filed (or provided to the
staff of the Commission);
(f) Use all commercially reasonable efforts to prevent the
issuance of any order suspending the effectiveness of the Registration
Statement, and if one is issued use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at
the earlier possible moment;
(g) Use all commercially reasonable efforts to cause the
Registrable Securities to be listed on the securities exchange or quoted on
the quotation system on which the MIT Common Stock is then listed or quoted;
and
(h) Otherwise use all commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission and make
generally available to MIT's security holders, in each case as soon as
practicable, but not later than 45 days after the close of the period covered
thereby (90 days in case the period covered corresponds to a fiscal year of
MIT), an earnings statement of MIT which will satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
comparable successor provisions).
(i) Notwithstanding any provision of this Agreement to the
contrary, remove any and all restrictive legends from the certificates of MIT
Common Stock issued to Holders two years from the date of this Agreement to
the extent permitted by applicable law.
Section 2.3 REGISTRATION EXPENSES. In connection with the Registration
Statement, MIT shall pay the following registration expenses: all
registration and filing fees; the fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and
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disbursements of MIT counsel in connection with blue sky qualifications of
the Registrable Securities); printing expenses; the reasonable fees and
disbursements of counsel for MIT and the customary fees and expenses for
independent certified public accountants retained by MIT; and the reasonable
fees and expenses of any experts retained by MIT in connection with such
registration. MIT shall not have any obligation to pay any legal fees of the
Holders, any underwriting fees, discounts, or commissions attributable to the
sale of Registrable Securities, or any out-of-pocket expenses of the Holders.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE HOLDERS.
As a condition to MIT's obligation to register the Registrable Securities and
any and all other obligations of MIT under this Agreement, each Holder hereby
represents and warrants to, and covenants and agrees with MIT as follows:
(a) this Agreement has been duly executed by such Holder and
constitutes a valid and binding agreement of such Holder enforceable against
such Holder in accordance with its terms, except that such enforcement may
be subject to applicable bankruptcy, insolvency, fraudulent transfer, or
other laws, now or hereafter in effect, affecting creditors' rights
generally, the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses (including
commercial reasonableness, good faith, and fair dealing) and to the
discretion of the court before which any proceeding therefor may be brought;
and subject to limitations as to enforceability of the indemnification and
contribution provisions hereof;
(b) the execution, delivery and performance by each Holder of this
Agreement and the consummation of the transactions contemplated hereby will
not require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority or other
person, except in connection with the Securities Act, or conflict with or
result in any breach or violation of any provision of any agreement to which
such Holder is a party or by which he or she is bound;
(c) such Holder will furnish to MIT the information requested
opposite such Holder's signature below, which shall include such Holder's
name exactly as it is to appear in the stock transfer records of MIT, such
Holder's current street address, phone number, telecopy number and such other
information reasonably available to such Holder as MIT may reasonably request;
(d) such Holder will not take, directly or indirectly, any action
that is designed to or which has constituted or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
any security of MIT to facilitate the sale or resale of the Registrable
Securities;
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(e) such Holder will comply with Regulation M under the Exchange
Act, which, among other things, requires a seller of Registrable Securities
and all affiliates of the that seller to suspend all bids for or purchases of
shares of MIT Common Stock at least one business day before and during any
offers and sales of Registrable Securities by that seller and until that
seller's offers and sales terminate and prohibits any person from stabilizing
the prices of a security to facilitate an offering of that security. The
Holders agree that, upon receipt of any notice from MIT of the happening of
any event of the kind described in subsection 2.2(b) hereof, such Holder will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subsection 2.2(b) hereof,
and, if so directed by MIT, each Holder will deliver to MIT all copies, other
than permanent file copies in such Holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of
such notice; and
(f) if such Holder was an affiliate of DPI at the time of the
Merger, such Holder acknowledged that he or she is subject to Rule 145
promulgated under the Securities Act and agrees that any certificates
representing MIT Common Stock issued to such Holder shall bear an appropriate
legend to such effect and that such Holder shall comply with the provisions
of Rule 145.
Section 3.2 REPRESENTATIONS AND WARRANTIES OF MIT. MIT represents and
warrants to each Holder as follows:
(a) MIT is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Maryland;
(b) this Agreement has been duly authorized by all necessary
corporate action on the part of MIT, has been duly executed by a duly
authorized officer of MIT, and constitutes a valid and binding agreement of
MIT enforceable against MIT in accordance with its terms; and
(c) the execution, delivery and performance of this Agreement by
MIT and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority except in
connection with the Securities Act, or conflict with the Third Amended and
Restated Articles of Incorporation or Second Amended and Restated By-laws of
MIT or any material agreement to which it is a party or by which it is bound.
Section 3.3 RULE 144. MIT covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act (or,
if MIT is not required to file such reports, it will, upon the request of any
Holder, make publicly available other information so long as necessary to
permit sales under Rule 144 under the Securities Act), and it will take such
further action as any Holder may request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission.
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Section 3.4 FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out
and comply with all of such party's obligations under this Agreement,
including without limitation any actions reasonably requested by MIT in
connection with obtaining any required consents or approvals to the actions
contemplated hereby under the Securities Act. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement
or arrangement) if such action would materially impair the ability of any
party to effectuate, carry out or comply with all of the terms of this
Agreement.
ARTICLE 4
INDEMNIFICATION
Section 4.1 INDEMNIFICATION BY MIT. MIT agrees to indemnify and hold
harmless each Holder, its directors and officers, if any, and each person, if
any, who controls each Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities, and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or prospectus contained therein or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities, or expenses
arise out of, or are based upon, any such untrue statement or omission or
allegation thereof based upon information furnished in writing to MIT by such
Holder or on such Holder's behalf expressly for use therein; and, PROVIDED
FURTHER, that, with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus, the
indemnity agreement contained in this subsection shall not apply to the
extent that it has been established that any such loss, claim, damage,
liability, or expense results from the fact that a current copy of the
prospectus was not sent or given to the person asserting any such loss,
claim, damage, liability, or expense at or prior to the written confirmation
of the sale of the Registrable Securities to such person and such current
copy of the prospectus was previously provided to the Holder and such current
copy of the prospectus would have cured the defect giving rise to such loss,
claim, damage, liability, or expense.
Section 4.2 INDEMNIFICATION BY HOLDER. Each Holder, severally but not
jointly, agrees to indemnify and hold harmless MIT, its directors and
officers, and each person, if any, who controls MIT within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from MIT to such Holder, but only
with respect to information furnished in writing by such Holder or on such
Holder's behalf expressly for use in the Registration Statement or prospectus
relating to the Registrable Securities, any amendment or supplement thereto,
or any preliminary prospectus; PROVIDED, HOWEVER, that such Holder shall not
be obligated to provide such indemnity to the extent that such losses,
claims, damages, liabilities or
7
expenses result from the failure of MIT to promptly amend or take action to
correct or supplement any such Registration Statement or Prospectus on the
basis of corrected or supplemental information provided in writing by such
Holder to MIT expressly for such purpose. In case any action or proceeding
shall be brought against MIT or its directors or officers, or any such
controlling person, in respect of which indemnity may be sought against such
Holder, such Holder and its directors, officers and controlling persons shall
have the rights and duties given to MIT, and MIT or its directors or officers
or such controlling person shall have the rights and duties given to such
Holder, by the preceding subsection hereof. In no event shall the liability
of any Holder of Registrable Securities hereunder be greater in amount than
the amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
Section 4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any person entitled to indemnification under Section 4.1 or
4.2 above (an "INDEMNIFIED PARTY") in respect of which indemnity may be
sought from any party who has agreed to provide such indemnification (an
"INDEMNIFYING PARTY"), the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Party, and shall assume the payment of all expenses. Such
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless the
Indemnifying Party has agreed to pay such fees and expenses, the
Indemnifying Party has failed to assume the defense of such action within a
reasonable time following written notice thereof from the Indemnified Party
or fails to employ counsel reasonably satisfactory to such Indemnified Party,
or the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that
there is a conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense of such
action or proceeding on behalf of such Indemnified Party; it being
understood, however, that the Indemnifying Party shall not, in connection
with any one such action or proceeding or separate but substantially similar
or related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such Indemnified Parties,
which firm shall be designated in writing by such Indemnified Parties). The
Indemnifying Party shall not be liable for any settlement of any such action
or proceeding effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any
such action or proceeding, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any loss or liability (to
the extent stated above) by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnified Party is a party, and
indemnity could have been sought hereunder by such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
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Section 4.4 CONTRIBUTION. If the indemnification provided for in this
Article 4 is unavailable to the Indemnified Parties in respect of any losses,
claims, damages, liabilities, or judgments referred to herein, then each
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, liabilities and judgments in the
following manner: as between MIT on the one hand and Holder on the other, in
such proportion as is appropriate to reflect the relative fault of MIT on the
one hand and each selling Holder on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of MIT on the one hand and of Holder on
the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the party's relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of subsection
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 4.4, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Holder were offered to the
public exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue statement or omission. Each
Holder's obligation to contribute pursuant to this Section 4.4 is several in
the proportion that the proceeds of the offering received by such Holder
bears to the total proceeds of the offering received by all the Holders and
not joint.
Section 4.5 SURVIVAL. The indemnity and contribution agreements
contained in this Article 4 shall remain operative and in full force and
effect regardless of any termination of this Agreement, any investigation
made by or on behalf of any Indemnified Party or by or on behalf of MIT, and
the consummation of the sale or successive resale of the Registrable
Securities.
ARTICLE 5
GENERAL
Section 5.1 AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified, or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, other than as
initially agreed upon in writing by MIT and the Holders.
Section 5.2 NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been
duly given upon receipt, if delivered personally, sent by nationally
recognized overnight courier service, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier
number specified below:
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(a) If to MIT, to:
Meridian Industrial Trust, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Xxxx Early
Fax: (000) 000-0000
(b) If to a Holder, to the address set forth opposite such
Holder's name on the signature pages hereto.
Section 5.3 SUCCESSORS AND ASSIGNS. No Holder may assign any rights or
benefits under this Agreement, other than the assignment by a Holder of all
or a portion of his rights to have the resale of his Registrable Securities
registered under this Agreement to any other Holder who holds Registrable
Securities, without the prior written consent of MIT. This Agreement shall
inure to the benefit of, and be binding upon, the successors and assigns of
MIT and the successors and permitted assigns of the Holders.
Section 5.4 COUNTERPARTS. This Agreement may be executed in a number
of identical counterparts and it shall not be necessary for MIT and each
Holder to execute each of such counterparts, but when each has executed and
delivered one or more of such counterparts, the several parts, when taken
together, shall be deemed to constitute one and the same instrument,
enforceable against each in accordance with its terms. In making proof of
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart executed by the party against whom enforcement of this
Agreement is sought.
Section 5.5 HEADINGS. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for convenience of reference
only, do not constitute a part of this Agreement and shall not limit or
otherwise affect the meaning or interpretation of this Agreement.
Section 5.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without
regard to principles of conflicts or choice of law. The parties hereto agree
to submit to the exclusive jurisdiction of the State of Maryland, for
purposes of any suit, action or other proceeding arising out of this
Agreement.
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Section 5.7 SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of each such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
Section 5.8 ENTIRE AND CONTROLLING AGREEMENT. This Agreement is
intended by MIT and the Holders as a final expression of their agreement and
is intended to be a complete and exclusive statement of their agreement and
understanding in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between MIT and
the Holders with respect to such subject matter. The provisions of this
Agreement shall control in any conflict with the provisions of the Merger
Agreement, with regard to the Registrable Securities.
Section 5.9 THIRD PARTY BENEFICIARIES. Other than Indemnified Parties
not a party hereto, this Agreement is intended only for the benefit of MIT
and the Holders and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any
other person or entity.
Section 5.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement
herein, nor shall any single or partial exercise of any such right preclude
other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are in addition to, and not exclusive
of, any rights or remedies otherwise available.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
MERIDIAN INDUSTRIAL TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Secretary and General Counsel
-------------------------------
HOLDERS:
Address: 0000 Xxxxxx Xx. Xxxxx 000 /s/ R. Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000 -------------------------------------
Telephone No.(000) 000-0000 R. Xxxxxxx Xxxxxxx
Telecopier No.(000) 000-0000
Address: 0000 Xxxxxx Xx. Xxxxx 000 /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxxx, Xxxx 00000 -------------------------------------
Telephone No.(000) 000-0000 Xxxxxxx X. Xxxxxxx
Telecopier No.(000) 000-0000
Address: 0000 Xxxxxx Xx. Xxxxx 000 /s/ Xxxxxx X. Xxxxxxx
Xxxxxxxx, Xxxx 00000 -------------------------------------
Telephone No.(000) 000-0000 Xxxxxx X. Xxxxxxx
Telecopier No.(000) 000-0000
Address: 00000 Xxxxxxxx Xxxxxxx, /s/ Xxxx X. Xxxxx
Suite 200 -------------------------------------
Xxxx Xxxxx, Xxxxx 00000 Xxxx X. Xxxxx
Telephone No.(000) 000-0000
Telecopier No.(000) 000-0000
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SCHEDULE I
DPI COMMON STOCK MIT COMMON STOCK
---------------- ----------------
R. Xxxxxxx Xxxxxxx 10 shares 8,840
Xxxxxxx X. Xxxxxxx 20 shares 17,680
Xxxxxx X. Xxxxxxx 20 shares 17,680
Xxxx X. Xxxxx 25 shares 22,100
