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 (i) 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 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 (i) 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 (ii) 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
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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 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.
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Section 2.3 REGISTRATION EXPENSES. In connection with the Registration
Statement, MIT shall pay the following registration expenses: (i) all
registration and filing fees; (ii) the fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of MIT
counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) printing expenses; (iv) the reasonable fees and disbursements
of counsel for MIT and the customary fees and expenses for independent certified
public accountants retained by MIT; and (v) 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 (i) such enforcement may
be subject to applicable bankruptcy, insolvency, fraudulent transfer, or other
laws, now or hereafter in effect, affecting creditors' rights generally,
(ii) 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 therefore may be brought; and (iii) 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 (i) 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 (ii) 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;
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(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;
(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 (i)
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 (ii) 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
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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 (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission.
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.
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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 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 (i) the Indemnifying Party has agreed
to pay such fees and expenses, (ii) 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 (iii) 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
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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.
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 (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Indemnified Party or by or on behalf of MIT, and (iii)
the consummation of the sale or successive resale of the Registrable Securities.
ARTICLE 5
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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:
(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 (a) 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
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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.
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
