EXHIBIT 1.01
4,000,000 Shares
LA SALLE PARTNERS INCORPORATED
Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
____________, 1997
___________, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
LaSalle Partners Incorporated, a Maryland corporation (the "Company"),
proposes to issue and sell to the several Underwriters (as defined below),
4,000,000 shares of the common stock, par value $.01 per share, of the Company
(the "Firm Shares").
It is understood that, subject to the conditions hereinafter stated,
3,200,000 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 800,000 Firm Shares (the "International Shares") will be sold to the several
International Underwriters named in Schedule II hereto (the "International
Underwriters") in connection with the offering and sale of such International
Shares outside the United States and Canada to persons other than United States
and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx &
Company, L.L.C. and Xxxxxxxxxx Securities shall act as representatives (the
"U.S. Representatives") of the several U.S. Underwriters, and Xxxxxx Xxxxxxx &
Co. International Limited, Xxxxxxx Xxxxx & Company, L.L.C. and Xxxxxxxxxx
Securities shall act as
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representatives (the "International Representatives") of the several
International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the "Underwriters."
DEL/LaSalle Finance Company, L.L.C., an Illinois limited liability
company (the "Selling Shareholder"), proposes to sell to the several U.S.
Underwriters not more than an additional 600,000 shares of the Company's common
stock, par value $.01 per share (the "Additional Shares"), if and to the extent
that the U.S. Representatives shall have determined to exercise, on behalf of
the U.S. Underwriters, the right to purchase such shares of common stock granted
to the U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares." The shares of
common stock, par value $.01 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock." The Company and the Selling Shareholder are hereinafter
sometimes collectively referred to as the "Sellers."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement;" the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "Prospectus." If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
As part of the offering contemplated by this Agreement, Xxxxxx Xxxxxxx
& Co. Incorporated ("Xxxxxx Xxxxxxx") has agreed to reserve out of the Shares
set forth opposite its name on Schedule I to this Agreement up to 200,000
Shares, for sale to the Company's employees, officers, directors, business
associates and related persons (collectively, "Participants"), as set forth in
the Prospectus under the heading "Underwriters" (the "Directed Share Program").
The Shares to be sold by Xxxxxx Xxxxxxx pursuant to the Directed Share Program
(the "Directed Shares") will be sold by Xxxxxx Xxxxxxx pursuant to this
Agreement at the Public Offering Price (as defined in Section 4 below). Any
Directed Shares not orally confirmed for purchase by any Participants by the end
of the first business day after the date on
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which this Agreement is executed will be offered to the public by Xxxxxx Xxxxxxx
as set forth in the Prospectus.
The Company, LaSalle Partners Limited Partnership ("LPL") and LaSalle
Partners Management Limited Partnership ("LPML" and, together with LPL, the
"Predecessor Partnerships") shall be collectively referred to herein as the
"Companies." For purposes of this Agreement, the term "subsidiary" shall have
the meaning set forth in Rule 1-02 of Regulation S-X and, as used herein and
unless otherwise indicated, shall refer to a subsidiary of the Company or of
either of the Predecessor Partnerships, as the case may be.
1. Representations and Warranties of the Companies. The Companies
represent and warrant to and agree with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the knowledge
of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph l(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each of the Company and the Predecessor Partnerships has been duly
incorporated or organized, is validly existing as a corporation or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or organization, has all power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Companies and their subsidiaries,
taken as a whole.
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(d) Each "significant subsidiary" (as such term is defined in Rule 1-
02 of Regulation S-X) of the Companies, including but not limited to
LaSalle Partners Management Services, Inc.("LPMS"), LaSalle Partners
Corporate & Financial Services, Inc. ("LPCFS"), LaSalle Advisors Capital
Management, Inc. ("LACM"), LaSalle Partners International, Inc. ("LPII")
and __________ (each a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries"), has been duly incorporated or organized, is
validly existing as a corporation or partnership, as the case may be, in
good standing under the laws of the jurisdiction of its incorporation or
organization, has all power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Companies and their subsidiaries, taken as a whole; all of the
issued shares of capital stock of each Significant Subsidiary which is a
corporation have been duly and validly authorized and issued, are fully
paid and non-assessable, all of the partnership interests of each
Significant Subsidiary which is a partnership have been duly and validly
authorized and issued, and all of the shares of capital stock or
partnership interests in any Significant Subsidiary (except as set forth in
the Registration Statement and the Prospectus) are owned directly or
indirectly by the Company or the Predecessor Partnerships, as the case may
be, free and clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Companies.
(f) The authorized capital stock of the Company conforms, in all
material respects, as to legal matters to the description thereof contained
in the Prospectus.
(g) The shares of Common Stock (including the Shares to be sold by the
Selling Shareholder) outstanding prior to the issuance of the Shares to be
sold by the Company have been duly authorized and are validly issued, fully
paid and non-assessable.
(h) The Shares to be sold by the Company have been duly authorized
and, when issued, delivered and paid for in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any preemptive or
similar rights.
(i) The financial statements (together with the related notes thereto)
of the Predecessor Partnerships and The Xxxxxxxxx Company ("Xxxxxxxxx")
included in the Registration Statement present fairly the financial
position of the Predecessor Partnerships and Xxxxxxxxx, respectively, and
each of their respective subsidiaries as of the respective dates of such
financial statements, and the results of operations and cash flows of the
Predecessor Partnerships and Xxxxxxxxx, respectively, and each of their
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respective subsidiaries for the respective periods covered thereby, all in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved. The balance sheet (together with
the related notes thereto) of the Company included in the Registration
Statement present fairly the financial position of the Company and its
subsidiaries as of the date of such balance sheet, in conformity with
generally accepted accounting principles consistently applied throughout
the period involved. The pro forma consolidated financial statements
included in the Prospectus have been prepared in accordance with Article 11
of Regulation S-X with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate under the
circumstances.
(j) None of the Companies or any of their subsidiaries is in violation
of its certificate of incorporation or certificate of partnership, as the
case may be, or its by-laws or partnership agreement, as the case may be,
or, except as would not have a material adverse effect on the Companies and
their subsidiaries, taken as a whole, in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any agreement or other instrument binding upon the Companies or any of
their respective subsidiaries. The conduct of the business of the Companies
and their respective subsidiaries is and has been in compliance with
applicable foreign, federal, state and local laws and regulations, except
where the failure to be in compliance would not, singly or in the
aggregate, have a material adverse effect on the Companies and their
subsidiaries, taken as a whole.
(k) (i) The execution and delivery by the Companies of, and the
performance by the Companies of their obligations under, this Agreement and
the transactions described in the Prospectus under the caption
"Incorporation Transactions" will not contravene (A) any provision of
applicable law or the certificate of incorporation, by-laws or other
organizational documents of the Companies or any of their Significant
Subsidiaries, or (B) any agreement or other instrument binding upon any of
the Companies or their Significant Subsidiaries except as would not have a
material adverse effect on the Companies and their subsidiaries, taken as a
whole, or (C) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over any of the Companies or their
Significant Subsidiaries except as would not have a material adverse effect
on the Companies and their subsidiaries, taken as a whole, and (ii) except
as would not have a material adverse effect on the Companies and their
subsidiaries, taken as a whole, no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Companies of their obligations under
this Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Shares.
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(l) There has not occurred any material adverse change, or any
development reasonably likely to result in a material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Companies and their subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which any of the Companies or their
subsidiaries is a party or to which any of the properties of any of the
Companies or their subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(n) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(o) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(p) At the time the Registration Statement became effective, the
Shares were registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). The Shares have been authorized for listing
on the New York Stock Exchange, Inc., subject only to official notice of
issuance.
(q) The Companies and their subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety
(including occupational health and safety), the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Companies and their
subsidiaries, taken as a whole.
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(r) There are no costs or liabilities associated with Environmental
Laws, including costs of complying therewith, which would, singly or in the
aggregate, have a material adverse effect on the Companies and their
subsidiaries, taken as a whole.
(s) There are no contracts, agreements or understandings between any
of the Companies and any person granting such person the right to require
the Company to file a registration statement under the Securities Act with
respect to any securities of the Company (except for that certain
Registration Rights Agreement, dated April 22, 1997, among the Company,
DEL-LPL Limited Partnership ("DEL-LPL"), DEL-LPAML Limited Partnership
("DEL-LPAML" and, together with DEL-LPL, the "Employee Partnerships"), DSA-
LSPL, Inc., DSA-LSAM, Inc. and Xxxxxxxxx Holdings, LLC), and there are no
contracts, agreements or understandings between the Company or either of
the Predecessor Partnerships and any person granting such person the right
to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(t) The Companies have complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(u) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (1) the Companies
and their subsidiaries have not incurred any material liability or
obligation nor entered into any material transaction not in the ordinary
course of business; (2) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (3) there
has not been any material change in the capital stock, short-term debt or
long-term debt of the Companies and their subsidiaries, except in each case
as described in or contemplated by the Prospectus.
(v) The Companies and their subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them in each case which is material to the
business of the Companies and their subsidiaries, taken as a whole, and in
each case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or which would not have a material
adverse effect on the Companies and their subsidiaries, taken as a whole;
and any material real property and buildings held under lease by any of the
Companies or their subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
materially interfere with the use made of such property and buildings by
the Companies and their subsidiaries, in each case except as described in
or contemplated by the Prospectus.
(w) The Companies and their subsidiaries own or possess adequate
rights to use, or can acquire on reasonable terms, all material patents,
patent rights, licenses,
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inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
none of the Companies or their subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a material adverse
effect on the Companies and their subsidiaries, taken as a whole.
(x) The Companies and their Significant Subsidiaries have filed all
material foreign, federal and state income and franchise tax returns and
have paid all material taxes shown as due thereon, and there is no tax
deficiency that has been asserted against the Companies or their properties
or assets that would have a material adverse effect on the Companies and
their subsidiaries, taken as a whole.
(y) No labor dispute material to the Companies and their subsidiaries,
taken as a whole, with the employees of the Companies, any of their
subsidiaries or, to the knowledge of the Company, LPI Service Corporation
exists, except as described in or contemplated by the Prospectus, or, to
the knowledge of the Companies, is imminent.
(z) The Companies and their subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; none of the Companies or any such subsidiary has been refused
any insurance coverage sought or applied for; and neither the Companies nor
any such subsidiary has any reason to believe that they will not be able to
renew their existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue their business at a cost that would not materially and adversely
affect the condition, financial or otherwise, or the earnings, business or
operations of the Companies and their subsidiaries, taken as a whole,
except as described in or contemplated by the Prospectus.
(aa) Except as would not have a material adverse effect on the
Companies and their subsidiaries, taken as a whole, the Companies and their
subsidiaries possess all certificates, authorizations, licenses and permits
issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses; and none of
the Companies or their subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization, license or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Companies and their subsidiaries, taken as a
whole, except as described in or contemplated by the Prospectus.
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(bb) The Company and its subsidiaries maintain, and the Predecessor
Partnerships and their subsidiaries have maintained, a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or
specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3)
access to assets is permitted only in accordance with management's general
or specific authorization; and (4) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(cc) All offers, sales or other issuances of the Company's capital
stock prior to the date hereof were at all relevant times exempt from the
registration requirements of the Securities Act and were duly registered
with or the subject of an available exemption from the registration of the
applicable state securities or Blue Sky laws.
(dd) Following the Partnership Interests Exchange, as defined in and
as described in the Prospectus under the caption "Incorporation
Transactions," neither the Predecessor Partnerships' ability to distribute
any cash or property to the Company, nor the Company's ability to receive
any such distributions from the Predecessor Partnerships, will be impeded
by any law or agreement.
Furthermore, the Companies represent and warrant to Xxxxxx Xxxxxxx
that (i) the Registration Statement, the Prospectus and any preliminary
prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the securities
laws and regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States.
2. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the
performance by the Selling Shareholder of its obligations under, this
Agreement will not contravene any provision of applicable law, or the
certificate of formation or formation agreement of the Selling Shareholder,
or any agreement or other instrument binding upon the Selling Shareholder
or any judgment, order or decree of any governmental body,
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agency or court having jurisdiction over the Selling Shareholder, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Selling
Shareholder of its obligations under this Agreement, except (i) which would
not have a material adverse effect on the Selling Shareholder's ability to
perform its obligations under this Agreement or (ii) such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(c) On the Option Closing Date (as defined below) the Selling
Shareholder will have valid title to the Shares to be sold by the Selling
Shareholder and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement and to sell,
transfer and deliver the Shares to be sold by the Selling Shareholder.
(d) The delivery of the Shares to be sold by the Selling Shareholder
pursuant to this Agreement will, upon the delivery of and payment for such
Shares as contemplated herein, pass title to such Shares to the
Underwriters free and clear of any security interests, claims, liens,
equities and other encumbrances.
(e) All information under the captions "Principal and Selling
Stockholders" and "Risk Factors--Shares Eligible for Future Sale" furnished
by or on behalf of such Selling Shareholder for use in the Registration
Statement and Prospectus is, and on the Closing Date and on the Option
Closing Date will be, true, correct, and complete, and does not, and on the
Closing Date and on the Option Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact necessary
to make such information not misleading.
3. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) set forth in Schedules I and
II hereto opposite its names at U.S.$______ a Share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Shareholder
agrees to sell to the U.S. Underwriters the Additional Shares, and the U.S.
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 600,000 Additional Shares at the Purchase Price. If the U.S.
Representatives, on behalf of the U.S. Underwriters, elect to exercise such
option, the U.S. Representatives shall so notify the Selling Shareholder in
writing not later than 30 days after the date of this Agreement, which notice
shall specify the number of Additional Shares to be purchased by the U.S.
Underwriters and the date on which such shares are to be purchased. Such date
may be the same as the Closing Date but not earlier than the Closing Date nor
later than ten
10
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 5 hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
ending 180 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
or file a registration statement with the Commission relating to any of the
foregoing securities, or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the sale of the Shares to the Underwriters hereunder, (B) the issuance by the
Company of shares of Common Stock upon the exercise of an option or a warrant or
the conversion of a security outstanding on the date of the Prospectus of which
the Underwriters have been advised in writing, (C) transactions by any person
other than the Company relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the offering of the
Shares, (D) stock or stock option issuances by the Company pursuant to existing
employee benefit plans, (E) the distribution of shares of Common Stock by the
Employee Partnerships to their respective partners, provided that any such
partners agree to be bound by the foregoing limitations, or (F) the filing of a
registration statement by the Company on Form S-8 relating to existing Company
employee benefit plans. In addition, the Selling Shareholder agrees that,
without the prior written consent of Xxxxxx Xxxxxxx on behalf of the
Underwriters, it will not, during the period ending 180 days after the date of
the Prospectus, make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
4. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
U.S.$______ a share (the "Public Offering Price") and to certain dealers
selected by you at a price that represents a concession not in excess of
U.S.$______ a share under the Public Offering Price, and that any Underwriter
may allow, and such dealers may reallow, a concession, not in excess of
U.S.$______ a share, to any Underwriter or to certain other dealers.
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5. Payment and Delivery. Payment for the Firm Shares shall be made
by wire transfer of immediately available funds to an account designated by the
Company against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 A.M., New York City time, on __________, 1997, or
at such other time on the same or such other date, not later than __________,
1997, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made to the Selling
Shareholder by wire transfer of immediately available funds to an account
designated by the Selling Shareholder against delivery of such Additional Shares
for the respective accounts of the several Underwriters at 10:00 A.M., New York
City time, on the date specified in the notice described in Section 3 or at such
other time on the same or on such other date, in any event not later than
__________, 1997, as shall be designated in writing by the U.S. Representatives.
The time and date of such payment are hereinafter referred to as the "Option
Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of
the Sellers to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 3:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date there shall not have occurred any change, or any
development reasonably likely to result in a change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Companies and their subsidiaries, taken as a whole, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date one or
more certificates, dated the Closing Date and signed by an executive
officer of the Company,
12
(i) to the effect that the representations and warranties of the Companies
contained in this Agreement are true and correct as of the Closing Date and
that the Companies have complied in all material respects with all of the
agreements and satisfied all of the conditions on their part to be
performed or satisfied hereunder on or before the Closing Date, and (ii)
setting forth all jurisdictions in which the conduct of the Company's
business or its ownership or leasing of property requires that each of the
Companies or their subsidiaries be qualified to transact business, except
to the extent that the failure to be so qualified would not have a material
adverse effect on the Companies and their subsidiaries, taken as a whole;
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, (Illinois), outside
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing under the laws of the jurisdiction of
its incorporation with the power and authority to own its property and
conduct its business as described in the Prospectus (with such
exceptions as would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole); and the Company is qualified
to transact business and, based solely upon such counsel's review of
"good standing" certificates of such states, is in good standing in
each jurisdiction set forth in the certificate provided pursuant to
paragraph 6(b)(ii) hereto;
(ii) each of LPCFS, LACM and LPMS has been duly incorporated and
is validly existing and in good standing under the laws of the State
of Maryland with the power and authority to own its property and to
conduct its business as described in the Prospectus (with such
exceptions as would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole); and, based solely upon such
counsel's review of "good standing" certificates of such states, each
of LPCFS, LACM and LPMS is qualified to transact business and is in
good standing in each jurisdiction set forth in the certificate
provided pursuant to paragraph 6(b)(ii) hereto;
(iii) the authorized capital stock of the Company consists of
100,000,000 shares of Common Stock and 10,000,000 shares of preferred
stock, $.01 par value, and otherwise conforms, in all material
respects, as to legal matters to the description thereof contained in
the Prospectus;
(iv) the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Shareholder) immediately prior to the
issuance of the Shares to
13
be sold by the Company have been duly authorized, validly issued fully
paid and non-assessable;
(v) all of the issued shares of capital stock of each of LPCFS,
LACM and LPMS have been duly authorized and validly issued and are
fully paid and non-assessable and all of the shares of capital stock
in LPCFS, LACM and LPMS (except as set forth in the Registration
Statement and the Prospectus) are, to the knowledge of such counsel,
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(vi) the issuance and sale of the Shares to be sold by the
Company have been duly authorized by the Company for sale to the
Underwriters under this Agreement and such Shares, when delivered to
and paid for by the Underwriters in accordance with this Agreement,
will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not, to the knowledge of such counsel, be
subject to any preemptive or similar rights to subscribe for or
purchase the Shares;
(vii) this Agreement has been duly authorized, executed and
delivered by the Companies;
(viii) the execution and delivery by the Companies of, and the
performance by the Companies of their obligations under, this
Agreement and the transactions described in the Prospectus under the
caption "Incorporation Transactions" will not contravene any provision
of the certificate of incorporation or by-laws or other organizational
documents of any of the Companies or their Significant Subsidiaries or
any agreement or instrument set forth as an exhibit to the
Registration Statement; except as would not have a material adverse
effect on the Companies and their subsidiaries, taken as a whole, (A)
the compliance by the Companies with all of the provisions of this
Agreement will not result in any violation or conflict with any of the
terms or provisions of any Applicable Laws or Applicable Orders (it
being understood that for purposes of such opinion, (1) the term
"Applicable Laws" means those laws, rules and regulations of the State
of New York and Illinois and the United States of America that, in
such counsel's experience, are normally applicable to transactions of
the type contemplated by this Agreement, each as in effect on the date
of such opinion; (2) the term "Applicable Orders" means those
judgments, orders or decrees of Governmental Authorities (as such term
is hereinafter defined) by which the Companies or any of its
Significant Subsidiaries is bound, the existence of which is actually
known to such counsel or has been specifically disclosed to such
counsel in writing by the Companies; and (3) the term "Governmental
Authorities" means any New York, Illinois or federal executive,
legislative, judicial, administrative or regulatory body under
Applicable Laws), provided that in rendering such opinion, such
counsel
14
need not express any opinion with respect to (x) any securities or
Blue Sky laws of the various states or the securities laws of foreign
jurisdictions or (y) the information contained in, or the accuracy,
completeness or correctness of, the Prospectus or the Registration
Statement or the compliance thereof as to form with the Securities Act
and the rules and regulations promulgated thereunder; and (B) no
Governmental Approval is required for the execution, delivery and
performance of this Agreement by the Companies, compliance by the
Companies with all the provisions hereof and the consummation of the
transactions contemplated hereby (it being understood that for
purposes of such opinion, the term "Governmental Approval" means any
consent, approval, license, authorization or validation of, or notice
to, or filing, recording or registration with, any Governmental
Authority pursuant to Applicable Laws), provided that in rendering
such opinion, such counsel need not express any opinion with respect
to (x) any securities or Blue Sky laws of the various states or the
securities laws of foreign jurisdictions, (y) such Governmental
Approvals as have been obtained under the Securities Act, the Exchange
Act and the rules and regulations promulgated thereunder, or (z) the
rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD");
(ix) the statements (A) in the Prospectus under the captions
"Background of the Company," "Incorporation Transactions,"
"Management" and "Description of Capital Stock," and (B) in the
Registration Statement in Items 14 and 15, insofar as they purport to
describe or summarize certain provisions of the agreements, statutes
and regulations referred to therein, fairly describe or summarize such
provisions in all material respects;
(x) to such counsel's knowledge and without having investigated
any governmental records or court dockets, there are no (i) legal or
governmental proceedings pending or threatened to which any of the
Companies or their subsidiaries is a party that are required to be
described in the Registration Statement or the Prospectus and are not
so described or (ii) contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required;
(xi) the Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds therefrom
as described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended; and
(xii) the Registration Statement, as of its effective date, and
the Prospectus, as of its date, appeared on their face to be
appropriately responsive in
15
all material respects to the requirements of the Securities Act and
the rules and regulations promulgated thereunder, except that, in each
case, such counsel need not express any opinion as to the financial
statements, schedules and other financial or statistical data included
therein or excluded therefrom or the exhibits to the Registration
Statement, and such counsel need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (other than to the extent
specified in paragraphs (iii) and (ix) above).
In addition, Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) shall
state that it has no reason to believe that (except for financial
statements and schedules and other financial and statistical data as to
which such counsel need not express any belief) the Registration Statement
and the prospectus included therein at the time the Registration Statement
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and has no reason to believe
that (except for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief) the
Prospectus contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx & Associates, dated the Closing Date, to the effect that:
(i) each of the Predecessor Partnerships has been duly organized
and is validly existing and in good standing under the laws of the
jurisdiction of its organization with the power and authority to own
its property and conduct its business as described in the Prospectus
(with such exceptions as would not have a material adverse effect on
the Predecessor Partnerships and their subsidiaries, taken as a
whole); and each of the Predecessor Partnerships is qualified to
transact business and, based solely upon such counsel's review of
"good standing" certificates of such states, is in good standing in
each jurisdiction set forth in the certificate provided pursuant to
paragraph 6(b)(ii) hereto;
(ii) except as to LPCFS, LACM and LPMS which are covered by the
opinion described in (c)(ii) above and except as to __________, which
is covered by the opinion described in (d)(i) below, each Significant
Subsidiary of the Companies has been duly incorporated or organized
and is validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization with the power and
authority to own its property and to conduct its business as described
in the Prospectus (with such exceptions as would not have a material
adverse effect on the Companies and their subsidiaries, taken as a
16
whole); and, based solely upon such counsel's review of "good
standing" certificates of such states, each such Significant
Subsidiary is qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Companies and
their subsidiaries, taken as a whole; and
(iii) except as to LPCFS, LACM and LPMS which are covered by the
opinion described in (c)(v) above and except as to __________, which
is covered by the opinion described in (d)(ii) below, all of the
issued shares of capital stock of each Significant Subsidiary that is
a corporation have been duly authorized and validly issued and are
fully paid and non-assessable, all of the partnership interests of
each Significant Subsidiary which is a partnership have been duly and
validly authorized and issued, and all of the shares of capital stock
or partnership interests in any Significant Subsidiary (except as set
forth in the Registration Statement and the Prospectus) are, to the
knowledge of such counsel, owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(e) The Underwriters shall have received on the Closing Date an
opinion of _______________, United Kingdom counsel for the Company, dated
the Closing Date, to the effect that:
(i) __________ has been duly incorporated or organized and is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization with the power and
authority to own its property and conduct its business as described in
the Prospectus (with such exceptions as would not have a material
adverse effect on the Companies and their subsidiaries, taken as a
whole); and
17
(ii) all of the issued shares of capital stock of __________
have been duly authorized and validly issued and are fully paid and
non-assessable and all of the shares of capital stock in __________
(except as set forth in the Registration Statement and the Prospectus)
are, to the knowledge of such counsel, owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims.
(f) The Underwriters shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the
Selling Shareholder, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder;
(ii) (A) the execution and delivery by the Selling Shareholder
of, and the performance by the Selling Shareholder of its obligations
under, this Agreement will not (1) contravene any provision of the
certificate of formation or formation agreement of the Selling
Shareholder, or, to such counsel's knowledge without any independent
investigation, any agreement or other instrument binding upon the
Selling Shareholder or, (2) result in any violation or conflict with
any of the terms or provisions of any Applicable Laws or Applicable
Orders, provided that in rendering such opinion, such counsel need not
express any opinion with respect to (x) any securities or Blue Sky
laws of the various states or the securities laws of foreign
jurisdictions or (y) the information contained in, or the accuracy,
completeness or correctness of, the Prospectus or the Registration
Statement or the compliance thereof as to form with the Securities Act
and the rules and regulations promulgated thereunder, and (B) no
Governmental Approval is required for the execution, delivery and
performance of this Agreement by the Selling Shareholder, compliance
by the Selling Shareholder with all the provisions hereof and the
consummation of the transactions contemplated hereby, provided that in
rendering such opinion, such counsel need not express any opinion with
respect to (x) any securities or Blue Sky laws of the various states
or the securities laws of foreign jurisdictions, (y) such Governmental
Approvals as have been obtained under the Securities Act, the Exchange
Act and the rules and regulations promulgated thereunder or (z) the
rules and regulations of the NASD; and
(iii) upon transfer of the Shares to be sold by the Selling
Shareholder to the Underwriters and payment of the purchase price
therefor as contemplated herein, and assuming that the Underwriters
acquire their interest in such Shares in good faith and without notice
of any adverse claims, the Underwriters will acquire
18
such Shares free of all adverse claims (within the meaning of the
Uniform Commercial Code as in effect in the State of New York).
(g) The Underwriters shall have received on the Closing Date an
opinion of Sidley & Austin, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (vi), (vii), (ix)
(but only as to the statements in the Prospectus under "Description of
Capital Stock" and "Underwriters") and (xii) of paragraph (c) above, as
well as a statement covering the matters referred to in the last unnumbered
subparagraph of paragraph (c) above.
With respect to subparagraph (xii) and the last unnumbered
subparagraph of paragraph (c) above, Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois) and Sidley & Austin may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to paragraph (f)
above, Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) may rely, with
respect to factual matters and to the extent such counsel deems
appropriate, upon the representations of the Selling Shareholder contained
herein. In giving the opinions set forth in subparagraphs (i), (ii), (iv),
(v) and (vi) of paragraph (c) above, Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois) may rely, as to matters of Maryland law, solely on the opinion
of Piper & Marbury, L.L.P. In giving the opinions set forth in
subparagraphs (i), (ii) and (iii) of paragraph (d) above, Xxxxx &
Associates may rely, as to matters of Maryland law, solely on the opinion
of Piper & Marbury, L.L.P. In giving the opinions set forth in subparagraph
(vi) of paragraph (c) above, Sidley & Austin may rely, as to matters of
Maryland law, solely on the opinion of Piper & Marbury, L.L.P.
The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
described in paragraphs (c) and (f) above, the opinion of Xxxxx &
Associates described in paragraph (d) above and the opinion of ___________
___ described in paragraph (e) above, shall be rendered to the Underwriters
at the request of the Companies or the Selling Shareholder, as the case may
be, and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof
and the Closing Date, letters dated the date hereof or the Closing Date, as
the case may be, in form and substance reasonably satisfactory to the
Underwriters, from KPMG Peat Marwick LLP, independent public accountants
with respect to the Companies and their respective subsidiaries, and
Deloitte & Touche LLP, independent auditors with respect to Xxxxxxxxx,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that the letters
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
19
(i) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and each of the shareholders and between you
and each of the officers listed under the caption "Management" in the
Prospectus and each of the directors of the Company relating to sales and
certain other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date.
(j) The Partnership Interests Exchange (as defined in the Prospectus
under the caption "Incorporation Transactions") shall have been consummated
in the manner set forth therein.
(k) The Common Stock shall have been registered under the Exchange
Act, and the Shares shall have been approved for listing on the New York
Stock Exchange, subject only to official notice of issuance.
(l) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by a member of the Selling
Shareholder, to the effect that the representations and warranties of the
Selling Shareholder contained in this Agreement are true and correct as of
the Closing Date and that the Selling Shareholder has complied, in all
material respects, with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and sale of the Additional Shares and other matters related to the
sale of the Additional Shares.
7. Covenants of the Company and the Predecessor Partnerships. In
further consideration of the agreements of the Underwriters herein contained,
each of the Company and the Predecessor Partnerships (as defined in the
Prospectus) covenants with each Underwriter to do, or cause the Company to do,
all of the following:
(a) To furnish to you, without charge, three (3) signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 5:00 p.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
paragraph (c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
20
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
to take any action that would subject it to general consent to service of
process in any jurisdiction in which it is not so subject.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the twelve-
month period ending ____________, 1998 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) To use the net proceeds received by it from the sale of the
Shares in the manner specified in the Prospectus under "Use of Proceeds."
(g) That in connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of
the effectiveness of the Registration Statement. Xxxxxx Xxxxxxx will notify
the Company as to which Participants will need to be so restricted. The
Company will direct the transfer agent to place stop transfer restrictions
upon such securities for such period of time.
21
(h) To pay all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program.
(i) The Company and its subsidiaries shall consummate the
transactions described in the Prospectus under the caption "Incorporation
Transactions" as soon as reasonably practicable.
Furthermore, the Company and the Predecessor Partnerships covenant
with Xxxxxx Xxxxxxx that the Company will, and the Predecessor Partnerships will
cause the Company to, comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the Directed
Shares are offered by the Company in connection with the Directed Share Program.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Sellers and the
Predecessor Partnerships agree to pay or cause to be paid all expenses incident
to the performance of their obligations under this Agreement, including: (i) the
fees, disbursements and expenses of the Company's counsel and the Company's
accountants and counsel for the Selling Shareholder in connection with the
registration and delivery of the Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum (which fees and disbursements of counsel
shall not exceed $5,000), (iv) all filing fees and disbursements of counsel to
the Underwriters incurred in connection with the review and qualification of the
offering of the Shares by the NASD, (v) all fees and expenses in connection with
the preparation and filing of the registration statement on Form 8-A relating to
the Common Stock and all costs and expenses incident to listing the Shares on
the New York Stock Exchange, (vi) the cost of printing certificates representing
the Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
22
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (ix) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 7(h),
Section 9 entitled "Indemnity and Contribution", and the last paragraph of
Section 11 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make. The provisions of this Section shall not
supersede or otherwise affect any agreement that the Sellers and the Predecessor
Partnerships may otherwise have for the allocation of such expenses among
themselves.
9. Indemnity and Contribution. (a) The Company and, subject to
paragraph 9(i) below, the Predecessor Partnerships agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
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 and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by 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 or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; provided, however,
that the foregoing indemnity with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) The Selling Shareholder agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter 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 and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the
23
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by 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, but only with reference
to information relating to the Selling Shareholder under the captions "Principal
and Selling Stockholders" and "Risk Factors--Shares Eligible for Future Sale"
furnished in writing by or on behalf of the Selling Shareholder expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto; provided, however, that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 7(a) hereof.
(c) The Company and, subject to paragraph 9(i) below, the Predecessor
Partnerships agree to indemnify and hold harmless Xxxxxx Xxxxxxx and each
person, if any, who controls Xxxxxx Xxxxxxx within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act ("Xxxxxx Xxxxxxx
Entities"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) (i)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the prospectus wrapper material prepared by or with the consent of
the Company for distribution in foreign jurisdictions in connection with the
Directed Share Program attached to the Prospectus or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, when
considered in conjunction with the Prospectus or any applicable preliminary
prospectus, not misleading; (ii) caused by the failure of any Participant to pay
for and accept delivery of the Shares which, immediately following the
effectiveness of the Registration Statement, were subject to a properly
confirmed agreement to purchase; or (iii) related to, arising out of, or in
connection with the Directed Share Program, provided that, neither the Company
nor the Predecessor Partnerships shall be responsible under this subparagraph
(iii) for any losses, claim, damages or liabilities (or expenses relating
thereto) that are finally judicially determined to have resulted from the bad
faith or gross negligence of Xxxxxx Xxxxxxx Entities.
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Companies, the Selling Shareholder, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or the Selling Shareholder within
the meaning of either Section 15 of the Securities
24
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by 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, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(e) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a), (b), (c) or (d) of this Section 9, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section, and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Selling Shareholder and all persons, if any, who control
the Selling Shareholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters or for Xxxxxx Xxxxxxx, such firm shall be designated in writing by
Xxxxxx Xxxxxxx. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Shareholder and such control persons of the Selling Shareholder,
such firm shall be designated in writing by the Selling Shareholder. The
25
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second, third and fourth sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. 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 any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(f) To the extent the indemnification provided for in paragraph (a),
(b), (c) or (d) of this Section 9 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Sellers
and the Predecessor Partnerships on the one hand and the Underwriters on the
other hand in connection with the offering of the Shares shall be deemed to be
in the same respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by each Seller and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the Sellers
and the Predecessor Partnerships on the one hand and the Underwriters on the
other hand 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 the Sellers
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
9 are
26
several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
(g) The Sellers, the Predecessor Partnerships and the Underwriters
agree that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (f) of this Section 9. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 9 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(h) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Shareholder contained in this Agreement 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 Underwriter or any
person controlling any Underwriter, the Selling Shareholder or any person
controlling the Selling Shareholder, or the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for
any of the Shares. Notwithstanding the foregoing, the representations and
warranties of the Predecessor Partnerships shall not survive the consummation of
the Offering (it being understood that the representations, warranties and the
other statements of the Company continue to remain in effect as provided
herein).
(i) Notwithstanding the foregoing provisions of this Section 9, the
obligations of the Predecessor Partnerships under this Section 9 is contingent
and shall become effective only upon a failure of the offering of the Firm
Shares to be consummated pursuant to the terms of this Agreement and, in the
absence of such a failure, the Predecessor Partnerships will have no liability
or obligation under the foregoing provisions (it being understood that the
absence of any obligation of the Predecessor Partnerships under this Section 9
shall not affect the obligations of the Company under this Section 9).
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the
27
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you, the Company and the Selling Shareholder for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholder. In any such
case either you or the relevant Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If, on the Option
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Additional
Shares or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
28
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Company and the Predecessor Partnerships will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
29
Very truly yours,
LASALLE PARTNERS INCORPORATED
By_______________________________
Name:
Title:
DEL/LASALLE FINANCE COMPANY, L.L.C.
By_______________________________
Name:
Title:
LASALLE PARTNERS LIMITED PARTNERSHIP
By DEL-LPL LIMITED PARTNERSHIP,
its General Partner
By_______________________________
Name:
Title:
LASALLE PARTNERS MANAGEMENT LIMITED
PARTNERSHIP
By DEL-LPAML LIMITED PARTNERSHIP,
its General Partner
By_______________________________
Name:
Title:
30
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
Acting severally on behalf
of themselves and the
several U.S. Underwriters named
in Schedule I hereto.
By Xxxxxx Xxxxxxx & Co. Incorporated
By
------------------------------
Name:
Title:
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
Acting severally on behalf
of themselves and the
several International Underwriters
named in Schedule II hereto.
By Xxxxxx Xxxxxxx & Co. International Limited
By
-------------------------------------
Name:
Title:
31
SCHEDULE I
U.S. Underwriters
-----------------
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
[NAMES OF OTHER UNDERWRITERS]
_________
Total U.S. Firm Shares 3,200,000
=========
SCHEDULE II
International Underwriters
--------------------------
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
[NAMES OF OTHER UNDERWRITERS]
_________
Total International Firm Shares 800,000
=========
Exhibit A
---------
[Form of Lock-up Letter]
------------------------
__________, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxxx Securities
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx"), Xxxxxx Xxxxxxx & Co. International Limited ("MSIL"), Xxxxxxx
Xxxxx & Company, L.L.C. ("Xxxxxxx Xxxxx") and Xxxxxxxxxx Securities
("Xxxxxxxxxx") propose to enter into an Underwriting Agreement (the
"Underwriting Agreement") with LaSalle Partners Incorporated, a Maryland
corporation (the "Company"), providing for the public offering (the "Public
Offering") by the several Underwriters, including Xxxxxx Xxxxxxx, MSIL, Xxxxxxx
Xxxxx and Xxxxxxxxxx (the "Underwriters"), of 4,000,000 (plus 600,000 shares
subject to the Underwriters' over-allotment option) shares (the "Shares") of the
common stock, par value $.01 per share, of the Company (the "Common Stock").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date hereof and ending 180 days after the date of the
final prospectus relating to the Public Offering (the "Prospectus"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock (provided that such shares
or securities are either now owned by the undersigned or are hereafter acquired
prior to or in connection with the Public Offering), or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) the sale of any Shares to the Underwriters
pursuant to the Underwriting Agreement, (b) transactions by any person other
than the Company relating to shares of Common Stock or other securities acquired
in open market transactions after the completion of the offering of the Shares,
(c) the distribution of shares of Common Stock by the Employee Partnerships (as
defined in the Underwriting Agreement) and Xxxxxxxxx-LPL Holdings, LLC to their
respective partners or members, as the case may be; provided that any such
partners or members, as the case may be, agree to be bound by the foregoing
limitations, (d) the sale or other transfer of shares of Common Stock by DSA-
LSPL, Inc. and DSA-LSAM, Inc. to Dai-ichi Life (U.S.A.), Inc. or any one or more
of its direct or indirect wholly owned subsidiaries; provided that Dai-ichi Life
(U.S.A.), Inc. or any such subsidiaries agree to be bound by the foregoing
limitations, or (g) the pledge of shares of Common Stock as described in the
Prospectus by DEL/LaSalle Finance Company, L.L.C. and the Employee Partnerships.
In addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, the undersigned will not, during
the period commencing on the date hereof and ending 180 days after the date of
the Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
____________________________
(Name)
____________________________
(Address)
