EXHIBIT 2.12
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TRUST AGREEMENT
Dated as of March 9, 1999
by and among
LASALLE PARTNERS INCORPORATED,
XXXXXX TRUST AND SAVINGS BANK,
and
The Persons named as "Shareholders' Representatives"
on the Signature Pages hereto
AGREEMENT made as of March 9, 1999 (the "Agreement"), by and
among LASALLE PARTNERS INCORPORATED, a Maryland corporation (the
"Company"), XXXXXX TRUST AND SAVINGS BANK, an Illinois banking corporation
(the "Trustee"), and the persons named as "Shareholders' Representatives"
on the signature pages hereto.
W I T N E S S E T H:
WHEREAS, the Company, certain subsidiaries of the Company and
the Xxxxx Xxxx Xxxxxxx entities (in the case of the Europe/USA Purchase and
Sale Agreement as specified on Schedule 1 attached hereto) and persons
identified therein have entered into three separate Purchase Agreements,
each dated as of October 21, 1998, as amended (the "Purchase Agreements"),
pursuant to which the Company will acquire all of the equity interests of
the companies that, following certain reorganization transactions, will own
substantially all of the assets of and be engaged in the worldwide property
and asset management, advisory and other real estate related businesses
currently conducted under the name "Xxxxx Lang Wootton" or "JLW"
(collectively, the "JLW Businesses") for consideration consisting of shares
of common stock of the Company, $.01 par value per share ("Company Common
Stock"), and cash.
WHEREAS, pursuant to the Purchase Agreements, the Company is
required to establish an irrevocable discretionary trust (the "Trust") for
the purpose of providing equity participation in the Company for current
and former employees of the JLW Businesses (and certain related persons)
and at Closing will issue 1,571,441 shares of Company Common Stock (the
"Initial ESOT Shares") to the Trust (or such lesser number as is agreed to
by the parties to the Purchase Agreements). Moreover, the Company will
issue on behalf of the Trust 91,988 shares of Company Common Stock and
108,895 shares of Company Common Stock to the Escrow Agent as
indemnification shares (the "ESOT Escrow Shares") and Adjustment Shares
(the "ESOT Adjustment Shares" and, together with the ESOT Escrow Shares and
the Initial ESOT Shares, the "ESOT Shares") respectively, pursuant to the
terms of the Purchase Agreements and the Escrow Agreement.
WHEREAS, pursuant to the terms of the Sellers' Contribution and
Coordination Agreement (the "SCCA"), dated as of November 24, 1998, among
the JLW entities identified therein, the Europe/USA Region Shareholders,
Asia Region Shareholders and the Australasia Region Shareholders and the
other parties identified therein, a representative for each of the
Europe/USA Region Shareholders, Asia Region Shareholders and Australasia
Region Shareholders have been designated (the "European Region
Representative," "Asia Region Representative" and "Australasia Region
Representative," respectively) to take certain actions and make certain
determinations regarding their respective regions in connection with and
pursuant to the Purchase Agreements, SCCA, Escrow Agreement, this Agreement
and the other Ancillary Agreements; provided, that pursuant to an amendment
to the SCCA an individual has been appointed in lieu of the Australasia
Region Representative for all purposes under this Agreement (the
"Australasia Region ESOT Representative") (the European Region
Representative, Asia Region Representative and Australasia Region ESOT
Representative are collectively referred to herein as the "Shareholders'
Representatives").
WHEREAS, the Trustee is willing to serve as trustee and to hold
legal title to the assets of the Trust, in trust, for the purposes
hereinafter stated and in accordance with the terms hereof;
NOW, THEREFORE, effective as of the date hereof, the Company
hereby establishes the Trust with the Trustee, and the Trustee hereby
agrees to accept its appointment as trustee thereof, subject to the
following terms and conditions:
ARTICLE I
GENERAL MATTERS AND DUTIES OF THE PARTIES
1.1 DEFINITIONS. Terms used but not defined herein shall have the
meanings ascribed to them in the Purchase Agreements.
1.2 GENERAL DUTIES OF TRUSTEE. The Trustee shall have no authority
over and shall have no responsibility for the administration of the Trust
Fund (as hereinafter defined), except as expressly provided for herein.
The Company and the Shareholders' Representatives shall furnish the Trustee
with such information relative to the Trust Fund as is necessary for the
proper administration of the Trust Fund. The Trustee shall not allocate,
distribute or dispose of any assets of the Trust Fund, including the ESOT
Shares, without the prior written instructions of the Shareholders'
Representatives and the Company, except as expressly provided for herein.
The Trustee shall hold on the terms set forth herein all payments and
property received by it hereunder, including the Initial ESOT Shares, the
ESOT Escrow Shares (to the extent received by the Trustee from the Escrow
Agent) and the ESOT Adjustment Shares (to the extent received by the
Trustee from the Escrow Agent) which, together with the income and gains
therefrom, shall constitute the trust fund (the "Trust Fund"). The Trustee
shall protect and conserve the Trust Fund, collect the income thereon and
make distributions therefrom, all as hereinafter provided. The Trustee
shall be responsible only for the property actually received by it
hereunder.
1.3 RIGHTS, OBLIGATIONS OR DISCRETIONS OF THE TRUSTEE UNDER THE
SCCA. In the event the Trustee, as a party to the SCCA, shall have any
rights, discretion or obligation thereunder, other than as described in
Section 3.12 hereof, (i) the Trustee shall exercise the relevant right or
discretion in accordance with the written instructions given to it by the
Shareholders' Representatives provided no later than five Business Days
prior to the required exercise of the relevant right or discretion; (ii)
the Trustee shall discharge the relevant obligation only to the extent that
it can do so by transferring ESOT Shares, or other property included within
the Trust, and only then in accordance with the written instructions given
to it by the Shareholders' Representatives; and (iii) pending receipt by
the Trustee of written instructions from the Shareholders' Representatives
as described in this Section 1.3, the Trustee shall take no action in
relation to the relevant right, discretion or obligation under the SCCA.
1.4 NONDIVERSION OF FUNDS. Notwithstanding anything to the
contrary contained in this Agreement, no part of the Trust Fund other than
expenses, fees, indemnities and taxes properly charged to the Trust Fund or
a Participant (as hereinafter defined) under this Agreement shall be used
for or diverted to purposes other than for distribution to Potential
Participants (as hereinafter defined).
1.5 REGIONAL SUB FUNDS, SUB FUNDS AND PARTICIPANT ACCOUNTS.
(1) The Trust Fund shall be segregated into separate sub
funds for (i) the current or former employees of the JLW Businesses
operated by the Europe/USA Region Companies (the "Europe/USA Sub Fund"),
(ii) the current or former employees of the JLW Businesses operated by the
Asia Region Companies (the "Asia Sub Fund") and (iii) the current or former
employees of the JLW Businesses operated by the Australasia Region
Companies (the "Australasia Sub Fund" and, collectively with the Europe/USA
Sub Fund and Asia Sub Fund, the "Regional Sub Funds"). At Closing, the
Initial ESOT Shares, ESOT Escrow Shares and ESOT Adjustment Shares shall be
credited to the Regional Sub Funds as follows: (i) Europe/USA Sub Fund -
1,377,830 Initial ESOT Shares (or such lesser number as is agreed to by the
parties to the Purchase Agreements), 80,505 ESOT Escrow Shares and 92,728
ESOT Adjustment Shares; (ii) Asia Sub Fund - 17,747 Initial ESOT Shares,
972 ESOT Escrow Shares and 0 ESOT Adjustment Shares; and (iii) Australasia
- 175,864 Initial ESOT Shares, 10,511 ESOT Escrow Shares and 16,167 ESOT
Adjustment Shares. In the case of ESOT Escrow Shares and ESOT Adjustment
Shares, the credits made to such Regional Sub Fund, and Sub Sub Fund (as
hereinafter defined), shall be conditional upon receipt of such shares by
the Trustee from the Escrow Agent. In the event the ESOT Shares credited
to the Europe/USA Sub Fund have been reduced by agreement of the parties to
the Purchase Agreements, the Company and the Shareholders' Representatives
shall provide written notice to the Trustee specifying the number of shares
to be credited to the Europe/USA Sub Fund and United States Sub Sub Funds
(as hereinafter defined).
(2) The Europe/USA Sub Fund shall be segregated into Sub Sub
Funds (each a "Sub Sub Fund" and collectively the "Sub Sub Funds") as set
forth on Schedule 2 hereto. At Closing, the Initial ESOT Shares, ESOT
Escrow Shares and ESOT Adjustment Shares credited to the Europe/USA Sub
Fund shall be credited to each Sub Sub Fund as set forth on Schedule 2;
provided, however, with the prior written consent of the Company (which
consent will not be unreasonably withheld), the Shareholders'
Representatives may direct the Trustee to transfer ESOT Shares which have
not been allocated to a Participant Account from one Sub Sub Fund to
another Sub Sub Fund; provided further, that no ESOT Shares may be
transferred from the Ireland Sub Sub Fund, the Scotland Sub Sub Fund, Pan
Euro Sub Sub Fund or the Germany Sub Sub Fund to another Sub Sub Fund,
except to reflect the transfer of employees between countries within the
Europe/USA region.
(3) After a Participant has been designated and an allocation
made pursuant to Article II of this Agreement, the Trustee shall maintain
an account for each such Participant within the appropriate Regional Sub
Fund or, if applicable, Sub Sub Fund (a "Participant Account").
(4) The Trustee shall maintain accurate records of all
allocations, distributions and dispositions with respect to the Regional
Sub Funds, the Sub Sub Funds and the Participant Accounts, and the number
of ESOT Shares which remain unallocated (in respect of each Regional Sub
Fund and Sub Sub Fund, the "Unallocated Regional Sub Fund" and the
"Unallocated Sub Sub Fund" respectively) within each Regional Sub Fund and
Sub Sub Fund, and the Trustee shall credit the Unallocated Regional Sub
Funds and the Unallocated Sub Sub Funds (with respect to unallocated
portions of the Trust Fund) and the Participant Accounts (with respect to
allocated portions of the Trust Fund), as applicable, periodically with all
dividends or distributions made and income earned with respect to ESOT
Shares credited to such funds or accounts. The establishment and
maintenance of the Regional Sub Funds, the Sub Sub Funds, the Unallocated
Regional Sub Funds and Unallocated Sub Sub Funds and the Participant
Accounts hereunder shall be for accounting and bookkeeping purposes only
and shall not require actual segregation of any part of the assets of the
Trust.
1.6 STOCKHOLDER AGREEMENT. In connection herewith, the
Trustee shall on or prior to the Closing Date have executed that certain
Stockholder Agreement, between the Company and the Trustee (the
"Stockholder Agreement"), a copy of which is attached as Exhibit A hereto,
and the Trustee shall comply with the terms thereof.
1.7 VOTING. The Trustee shall vote the Initial ESOT Shares,
and to the extent that any ESOT Escrow Shares or ESOT Adjustment Shares
have been provided to the Trustee by the Escrow Agent, such ESOT Escrow
Shares and ESOT Adjustment Shares, in accordance with the Stockholder
Agreement. In any voting matter for which the Stockholder Agreement does
not specifically prescribe how such shares shall be voted, the Trustee
shall vote such shares for, against or to abstain in the same proportions
as the shares of Company Common Stock are voted by all other stockholders
of the Company in respect of such matter. This Section 1.7 shall also
apply in the case of any action by stockholders' consent without a meeting.
ARTICLE II
PARTICIPANTS, ALLOCATIONS AND VESTING CONDITIONS
2.8 ALLOCATION OF SHARES CREDITED TO REGIONAL SUB FUNDS AND SUB SUB
FUNDS. Except as provided in Sections 2.3(b), and 2.6 or otherwise agreed
to by the Company, ESOT Shares may be allocated only to persons who are
employees (and become employees of the Company or its subsidiaries or
affiliates after Closing) of the Europe/USA Region Companies or a
subsidiary or affiliate thereof with respect to the Europe/USA Sub Fund,
the Asia Region Companies, or a subsidiary or affiliate thereof with
respect to the Asia Sub Fund and the Australasia Region Companies, or a
subsidiary or affiliate thereof with respect to the Australasia Sub Fund;
provided that ESOT Shares credited to a specific country Sub Sub Fund may
only be allocated to current or former employees of JLW entities
incorporated or with their principal place of business within the relevant
country or who habitually reside or in the past have habitually resided in
the relevant country or who become so habitually resident or employees of
the Company or one of its subsidiaries or affiliates so incorporated or
with such principal place of business following the Closing (such persons
in relation to each Regional Sub Fund or Sub Sub Fund are hereinafter
referred to as "Potential Participants" of that Regional Sub Fund or, as
the case may be, Sub Sub Fund).
2.9 SELECTION OF PARTICIPANTS. Subject to the terms and conditions
of this Agreement, the European Region Representative, the Asia Region
Representative and the Australasia Region ESOT Representative,
respectively, shall recommend to the Shareholders' Representatives as a
group participants ("Participants") from among the applicable Potential
Participants (in accordance with the employee designations specified on
Schedule 3 attached hereto), recommend allocations of ESOT Shares,
recommend Vesting Conditions (as hereinafter defined) and recommend the
proposed distribution date (the "Distribution Date") of allocated ESOT
Shares ("Awards") with respect to the applicable Regional Sub Fund and,
with respect to the Europe/USA Sub Fund, the Sub Sub Funds and the
Shareholders' Representatives as a group shall make determinations based on
such recommendations; provided that all such determinations shall be made
in accordance with this Agreement. In the case of the Germany Sub Sub
Fund, the Europe/USA Region Representative may recommend, and the
Shareholders' Representatives shall have the right to grant, Awards to
Participants which consist of withdrawal rights, which withdrawal rights
may be exercised at the election of the Participant at any time after
December 31, 1999 but on or prior to December 27, 2000; provided that any
portion of an Award as to which withdrawal rights have not been exercised
on or prior to December 27, 2000 shall lapse on such date (subject to
Section 3.4(b) hereof). Notwithstanding any such recommendation, the
ultimate decision in relation to every Award shall be made by majority
decision of all of the Shareholders' Representatives (for the avoidance of
any doubt the provisions of clause 7 of the SCCA are not intended to be
incorporated hereunder) who need not follow the recommendation of the
applicable regional Shareholders' Representative.
2.10 ELIGIBILITY. (a) In recommending the persons to whom Awards
shall be made, the relevant regional Shareholders' Representative shall
take into account such factors, including but not limited to the duties and
the past, present and potential contributions to the success of the Company
and its subsidiaries, or of that of any of the JLW Businesses, of the
Potential Participants, as such Shareholders' Representative shall deem
relevant. The Company shall not be responsible, or have any liability to
any Participant or Potential Participant, for any determination of
eligibility made by the Shareholders' Representatives.
(1) Without the written consent of the Company, which consent
shall not be unreasonably withheld, the Shareholders' Representatives shall
not allocate or distribute any of the ESOT Shares to any (i) person who
received Consideration Shares pursuant to the Purchase Agreements, if the
Company reasonably determines that such allocation or distribution would
adversely affect the Company's tax or accounting position, (ii) former
employee of the JLW Businesses who does not become an employee of the
Company or of one or more of its subsidiaries or affiliates at Closing or
(iii) Shareholders' Representative.
(2) In the event of the death of a Potential Participant, the
term "Potential Participant" in such case shall include such Potential
Participant's spouse, dependents and legatees as such rights shall be
governed by the applicable laws of inheritance.
1.11 TIMING AND ALLOCATIONS.
(1) The ESOT Shares, including ESOT Escrow Shares and ESOT
Adjustment Shares, credited to each Regional Sub Fund or, if applicable,
Sub Sub Fund, shall be allocated on the dates (each an "Allocation Date")
and in the amounts set forth on Schedule 3 attached hereto. Except with
the prior written consent of the Company (which may be withheld for any
reason or no reason) , no allocations may be made after December 31, 2000
(the "Final Allocation Date") or on any date other than an Allocation Date.
(2) With respect to each Allocation Date, the Shareholders'
Representatives shall give the Trustee and the Company written notice (the
"Company Allocation Notice") specifying the names, addresses, habitual
residence and employer of the Participants, the Regional Sub Fund or, if
applicable, Sub Sub Fund from which ESOT Shares will be allocated, the
number of shares subject to Vesting Conditions ("Unvested Shares") and the
nature of the Vesting Conditions, the number of shares not subject to
Vesting Conditions ("Vested Shares"), the number of ESOT Escrow Shares and
ESOT Adjustment Shares, the proposed Distribution Date of the Vested
Shares, the proposed Distribution Date for Unvested Shares subject to a
required term of employment and the withdrawal rights, if any, applicable
to the Award; provided that no Distribution Date shall be later than
January 31, 2001. Each such notice shall be given at least 90 days prior
to the applicable Allocation Date, except with respect to the ESOT Shares
allocated on the Closing Date (the "Closing Allocation Date"), in which
case such notice shall be delivered at least five Business Days prior to
the Closing Allocation Date. During the 30 days following the Company
Allocation Notice (two Business Days in the case of the Closing Date) (the
"Review Period"), the Company and the Shareholders' Representatives shall
review the allocations included in the Company Allocation Notice to confirm
that such allocations have been made in compliance with the terms of this
Agreement. Within five (5) Business Days, following each Review Period,
the Company and the Shareholders' Representatives shall provide the Trustee
with written notice instructing the Trustee to provide written notice to
each Participant (the "Participant Notice") specified in the Company
Allocation Notice whose proposed allocation complies with the terms of this
Agreement; provided that with respect to the Closing Allocation Date,
Participants shall be notified within 10 Business Days after the Closing
Allocation Date and in respect of the other two Allocations Dates,
Participants may not be notified earlier than 60 days prior to such
Allocation Date. No Award shall be effective until the applicable
Allocation Date and no allocation shall be effective unless the Participant
has satisfied the conditions set forth in Section 2.5 hereof (except with
respect to allocations on the Closing Allocation Date). Each such
Participant Notice shall be substantially in the form set out in Part IA
(Non-U.S. standard distribution), Part IB (U.S. standard distribution) or
Part II (withdrawal rights) of Schedule 4, or in relation to any Award of
ESOT Shares contained in any Regional Sub Fund, in such other form as may
be approved by the Company and the Shareholders' Representatives. On or
prior to the applicable Allocation Date, the Company and the Shareholders'
Representatives shall be required to provide written notice to the Trustee
in the form attached hereto as Schedule 5 (the "Trustee Allocation Notice")
instructing the Trustee to make all allocations specified in the Trustee
Allocation Notice; provided that neither the Company nor the Shareholders'
Representatives shall have any obligation to execute a Trustee Allocation
Notice with respect to (i) any Award that does not comply with the terms of
this Agreement or (ii) any Participant who has failed to satisfy the
conditions set forth in Section 2.5 (except with respect to allocations on
the Closing Allocation Date). The Trustee shall make the allocations set
forth in the Trustee Allocation Notices on the applicable Allocation Date.
In the event that all shares required to be allocated on an Allocation Date
are not provided for in the Trustee Allocation Notices submitted to the
Trustee in respect of that Allocation Date, such non-allocated shares shall
be allocated by the Trustee pursuant to written instructions of the
compensation committee of the Company's Board of Directors, effective as of
the applicable Allocation Date.
(3) Except with respect to allocations on the Closing
Allocation Date, in the event any Participant specified in the Company
Allocation Notice does not satisfy the conditions set forth in Section 2.5
on or before the date 15 days before the applicable Allocation Date, the
Company and the Shareholders' Representatives shall, subject to the terms
of this Agreement, cause the ESOT Shares proposed to be allocated to such
Participant to be allocated to one or more Potential Participants or
Participants (in this instance, the Shareholders' Representatives shall
have the right to select additional Participants after the Review Period in
accordance with Section 2.2, subject to the Company's confirmation that
such allocation is in compliance with the Agreement) who have satisfied the
conditions set forth in Section 2.5 prior to the applicable Allocation
Date.
(d) The ESOT Escrow Shares and ESOT Adjustment Shares shall
be allocated by the Shareholders' Representatives to Participants on the
applicable Allocation Date in accordance with the amounts and dates
specified on Schedule 3; provided, that if such shares have not been
received by the Trustee from the Escrow Agent, such allocation shall be
conditional on receipt of such shares by the Trustee.
2.12 CONDITIONS TO ALLOCATIONS. Except with respect to allocations
on the Closing Allocation Date, no Participant shall have the right to be
allocated an Award hereunder unless such Participant shall have (i)
executed a stockholder agreement in the form attached as Exhibit B hereto;
and (ii) executed a recall acknowledgment relating to potential recall
obligations under the SCCA in the form attached as Exhibit C hereto (the
"SCCA Undertaking").
2.13 REALLOCATIONS. (a) In the event that the Vesting Conditions
applicable to ESOT Shares which have been allocated to a Participant's
Account are not satisfied or any Award, or portion thereof, in the form of
withdrawal rights shall lapse in accordance with its terms (including as a
result of the failure by the relevant Participant to exercise his or her
withdrawal rights in their entirety) or an Award has lapsed pursuant to
Section 2.6(b) below or Section 2.12 (such shares being referred to as
"Forfeited ESOT Shares"), the Forfeited ESOT Shares shall be reallocated by
the Shareholders' Representatives on the Final Allocation Date to one or
more Potential Participants or Participants who have satisfied the
conditions specified in Section 2.5 on or prior to the Final Allocation
Date irrespective (notwithstanding any other provision of this agreement)
of any such Potential Participant's or Participant's Regional Sub Fund or
Sub Sub Fund; provided, that ESOT Shares subject to Awards in the form of
withdrawal rights shall only be allocated to Participants or Potential
Participants of the Europe/USA Sub Fund; provided further, that any
reallocated Forfeiture ESOT Shares shall not be subject to any Vesting
Conditions.
(b) In connection with ESOT Shares (including ESOT Shares
which are subject to withdrawal rights which have not been exercised)
allocated on the Closing Allocation Date, if any of the conditions
specified in Section 2.5 or Section 3.2 shall have not been fulfilled on or
prior to December 27, 2000, the Award shall lapse and the ESOT Shares which
are the subject thereof shall be available for reallocation in accordance
with Section 2.6(a) above.
2.14 VESTING CONDITIONS. (a) The Vesting Conditions applicable to
shares credited to each Regional Sub Fund and Sub Sub Fund shall be as set
forth on Schedule 3 attached hereto. The employment conditions of vesting
(but not the length of the vesting period) applicable to any ESOT Shares
may, at the election of the Shareholders' Representatives, in any Trustee
Allocation Notice, be made more restrictive to reflect local tax or other
relevant considerations. Any ESOT Shares specified on Schedule 3 as being
subject to vesting conditions may only be allocated subject to the vesting
conditions described in this Section 2.7 (the "Vesting Conditions" ).
(1) If the "Standard Forfeiture" Vesting Condition applies to
an Award to a Participant, the number of the Unvested Shares subject to
such Vesting Condition shall be equal to fifty percent of such Award (up to
35,700 shares) and twenty percent of any remaining entitlement; provided,
however, that if a Participant is allocated more than one Award subject to
Standard Forfeiture, the total number of Unvested Shares shall be
calculated by taking fifty percent (up to 35,700 shares) of the sum of all
Awards to the Participant subject to Standard Forfeiture and twenty percent
of any remaining allocation (the "Total Unvested Shares") and the amount
required to be withheld from an Award as Unvested Shares shall be the Total
Unvested Shares less any Unvested Shares already withheld pursuant to
previous Awards.
(1)
(2) In the event that any Participant who receives an Award
that is subject to the Standard Forfeiture Vesting Condition or other
Vesting Condition which imposes a required term of employment ceases for
any reason to be an employee, director or officer of the Company or of one
of its subsidiaries or affiliates (a "Departure") prior to the end of the
required term of employment or the Final Allocation Date, the Shareholders'
Representatives (or, in the case of beneficiaries of the United States Sub
Sub Fund who have waived bonuses in order to receive ESOT Shares, the U.S.
Shares Committee (the "U.S. Shares Committee") described in Schedule 8
hereto) shall make a determination whether such Departure is a Bad
Departure (as defined in Schedule 7 or Schedule 8, as applicable (a
Participant whose Departure is determined by the Shareholders'
Representatives (or the U.S. Shares Committee, if applicable) to be a Bad
Departure is referred to as a "Bad Leaver"). Determinations as to whether
a Participant shall be deemed to be a Bad Leaver and the number of Unvested
Shares with respect to which such classification shall apply shall be made
on the Final Allocation Date, except that in the case of a Participant
whose employment terminates prior to such date by reason of death or
disability such determination shall be made as soon as reasonably
practicable after the Shareholders' Representatives are notified of the
Departures.
(3) Except as provided on Schedule 8 attached hereto, the
Shareholders' Representatives (or the U.S. Shares Committee, if applicable)
shall have complete and absolute discretion as to the determination of
whether a Participant is a Bad Leaver and such determination shall be final
and binding on each Participant and on the Company. Neither the Company,
the Shareholders' Representatives, the members of the U.S. Shares Committee
nor the Trustee shall be liable to any Participant for any determination
that such Participant is a Bad Leaver. In determining whether a Departure
is a Bad Departure, the general guidelines set forth on Schedule 7 hereto
shall be applicable; provided, however, the guidelines set forth on
Schedule 8 shall apply in relation to beneficiaries of the United States
Sub Sub Fund who have waived bonuses in order to receive ESOT Shares.
(4) No later than 45 days before the Final Allocation Date,
the Trustee shall notify the Shareholders' Representatives and the Company
of the number of ESOT Shares within each Participant's Account with
withdrawal rights and whether such Participant has exercised any withdrawal
rights and the amount of any withdrawal. No later than 30 days before the
Final Allocation Date, the Shareholders' Representatives shall provide to
the Company a written notice setting forth the Participants who have been
subject to a Departure (such information to be provided by the Company on
the request of the Shareholders' Representatives) and the Participants who
have not exercised their withdrawal rights or whose withdrawal rights have
lapsed, the number of Unvested Shares or ESOT Shares subject to withdrawal
rights applicable to such Participants and the Potential Participant or
Participants who would receive the related Forfeited ESOT Shares, if any,
on the Final Allocation Date. The Shareholders' Representatives shall on
the Final Allocation Date provide written notice to the Trustee and the
Company as to whether any Participant has been determined to be a Bad
Leaver or whose withdrawal rights have lapsed and the Potential
Participants or Participants who have been reallocated the Forfeited ESOT
Shares.
(5) The Shareholders' Representatives (or the U.S. Share
Committee, if applicable) shall provide written notice to any Participant
subject to a Departure who has been determined to be a Bad Leaver as soon
as reasonably practicable following the Final Allocation Date or the date
of the determination as to whether or not the relevant Participant is a Bad
Leaver in the case of any Participant's death or disability.
(6) Notwithstanding the foregoing and, to the extent
separately agreed in writing by the Shareholders' Representatives and the
Company, after the receipt of written instructions from the Shareholders'
Representatives and the Company, the Trustee shall distribute at or at any
time after Closing, in accordance with Articles III and IIIA below, the
ESOT Shares allocated to individuals upon the recommendation of the
European Shareholders' Representative free of any Vesting Conditions but,
in the case of any ESOT Escrow Shares or ESOT Adjustment Shares allocated,
conditional on the receipt of such shares by the Trustee.
2.15 ADJUSTMENT OF THE ALLOCATIONS OF THE ESOT ESCROW SHARES AND
ESOT ADJUSTMENT SHARES. If less than the entire number of ESOT Escrow
Shares or ESOT Adjustment Shares are returned to the Trustee by the Escrow
Agent, the Shareholders' Representatives shall notify the Trustee and the
Company in writing of the allocation of the returned shares among the
Regional Sub Funds, Sub Sub Funds and Participant Accounts and the Trustee
shall adjust the allocations to the Regional Sub Funds, Sub Sub Funds or
Participant Accounts as indicated in such notice.
2.16 ALLOCATIONS OF DISTRIBUTIONS AND DIVIDENDS. If the Trustee
receives dividends or distributions in respect of Initial ESOT Shares and,
to the extent that any ESOT Escrow Shares and ESOT Adjustment Shares are
deposited in the Trust Fund, in respect of such ESOT Escrow Shares and ESOT
Adjustment Shares, the Trustee shall credit the Regional Sub Funds and Sub
Sub Funds (with respect to unallocated ESOT Shares) or Participant Accounts
(with respect to allocated ESOT Shares), as applicable, with property
received in respect of the ESOT Shares credited to such fund or account.
All distributions, property and other rights distributed (including,
without limitation, upon a stock split, stock dividend or other
recapitalization of the Company) shall attach to and run with the
applicable ESOT Shares and shall be subject to the same conditions and
restrictions contained in this Agreement as are applicable to such ESOT
Shares.
2.17 POTENTIAL BENEFICIARIES' AND BENEFICIARIES' RIGHTS. No
Potential Participant shall have any claim to be granted any Award under
this Agreement nor shall a Participant have any right to an Award prior to
the satisfaction of the conditions to allocation set forth in Section 2.5
and the conditions to distribution set forth in Section 3.2 hereof. There
is no obligation for uniformity of treatment of Participants or Potential
Participants. No Participants shall have any right to an Award that is
subject to Vesting Conditions until a determination shall have been made
pursuant to Section 3.2 below that such Vesting Conditions have been
satisfied. No Participant shall have any rights as a stockholder of the
Company with respect to any of the ESOT Shares covered by an Award until
the date of the issuance of a stock certificate to such person representing
such shares.
2.18 NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement or
in any Award granted or other agreement entered into pursuant hereto shall
(i) confer upon any Potential Participant or Participant the right to
continue in the employ of the Company or any of its subsidiaries or
affiliates or to continue service as a director of the Company or any of
its subsidiaries or affiliates or to be entitled to any remuneration or
benefits not set forth in this Agreement or (ii) interfere with or limit in
any way any right of the Company or any of its subsidiaries or affiliates
to terminate such Potential Participant or Participant's employment or
service as a director.
2.19 ASSIGNMENTS AND TRANSFER OF AWARDS. The right to receive an
Award hereunder, including any withdrawal rights, is personal to each
Participant. The right to receive any Awards hereunder may not be
transferred or assigned and will lapse upon any purported transfer;
provided that the right to receive an Award, including the exercise of
withdrawal rights, shall extend to a Participant's heirs and legatees in
the event of a Participant's death.
ARTICLE III
DISTRIBUTIONS FROM THE TRUST
3.20 INCOME DISTRIBUTIONS FROM THE TRUST FUND. Subject to Article
IIIA, the Trustee shall distribute all income of the Trust in respect of
the Trust Fund within 180 days after the date that such income was earned
or received to the Participants in respect of ESOT Shares allocated to
their Participant Account (excluding ESOT Escrow Shares and ESOT Adjustment
Shares, which have not been received by the Trustee) or, to the extent the
ESOT Shares are not allocated to a Participant Account, as directed by the
Shareholders' Representatives.
3.21 CONDITIONS TO DISTRIBUTION. No Participant shall have the
right to receive a distribution or withdrawal of an Award unless such
Participant shall have (i) satisfied all applicable Vesting Conditions; and
(ii) satisfied any additional requirements (if any) set out in the
applicable Trustee Allocation Notice; provided, that in the case of
Participants who received allocations on the Closing Allocation Date, the
Participant must also have fulfilled the conditions set forth in Section
2.5 hereof. No distribution or initial withdrawal shall be made until the
Trustee shall have received written certification from the Shareholders'
Representatives and the Company that such conditions shall have been
satisfied ("Distribution Certification"). The Shareholders'
Representatives shall endeavor to deliver the Distribution Certification
five Business Days prior to any Distribution Date; provided that in
connection with distributions of allocations made on the Closing Allocation
Date, the Distribution Certification shall be given as soon as reasonably
practicable after the fulfillment of the conditions by the Participants set
forth in this Section 3.2.
3.22 DISTRIBUTIONS OF ESOT SHARES AFTER THE FINAL ALLOCATION DATE.
(a) The Distribution Date for Unvested Shares, which shall become vested on
the Final Allocation Date, shall be January 31, 2001 (or such other date as
the Company and Shareholders' Representatives shall mutually agree), and in
the event that a Participant is subject to a Departure prior to the end of
a required term of employment or the Final Allocation Date, ESOT Shares
will be distributed to such Participant, only if the Trustee shall have
received written notice from the Shareholders' Representatives ("Leaver
Status Notice") that such Participant is not a Bad Leaver (as hereinafter
defined).
(1) In the event any withdrawal rights granted to any
Participant shall not have been extended pursuant to 3.4(b) and such
Participant has not been determined to be a Bad Leaver, any Unvested Shares
subject to such withdrawal rights shall be deemed to have been the subject
of a Withdrawal Notice (as hereinafter defined) taking effect on the Final
Allocation Date. The ESOT Shares subject to such withdrawal rights will be
distributed to such Participant only after the Trustee shall have received
a Leaver Status Notice indicating such person is not a Bad Leaver.
3.23 NOTICE OF INTENT TO WITHDRAW. (a) Any Participant who has
been granted an Award subject to withdrawal rights shall give the Trustee,
the Company and the European Region Representative 30 days prior written
notice of such Participant's intent to exercise such withdrawal rights
substantially in the form provided in Schedule 4 attached hereto (a
"Withdrawal Notice"), which notice shall specify the number of ESOT Shares
subject to the Award that are being withdrawn and the date of such
withdrawal (the "Withdrawal Date"); provided no Withdrawal Date shall be
later than January 31, 2001. The Trustee shall promptly on receipt of a
Withdrawal Notice send a copy thereof to the Company. A Participant may
submit no more than three Withdrawal Notices to withdraw such Participant's
entire Award.
(b) If requested by the Shareholders' Representatives on or
prior to November 15, 2000, the Company shall consider and discuss in good
faith a proposal by the Shareholders' Representatives to permit the
exercise of withdrawal rights to be extended beyond December 27, 2000 and
shall reach such decision no later than 15 Business Days prior to December
27, 2000; provided that such extension shall not prevent the termination of
this Agreement or have any detrimental accounting, financial, tax or other
impact on the Company's business and financial condition or results of
operation. If the Company reaches such an agreement, the Company shall use
its reasonable efforts to cooperate in the implementation of such proposal
and in such case, notwithstanding anything to the contrary contained in
this Agreement, the Withdrawal Rights shall not lapse on December 27, 2000.
3.24 RIGHT TO ALTERNATIVE DISTRIBUTIONS. (a) Notwithstanding
anything to the contrary contained herein, prior to any Allocation Date,
Distribution Date or Withdrawal Date for any ESOT Shares specified in the
Withdrawal Notice for those ESOT Shares, the Company shall have the right
to (i) change the method by which a Participant receives an Award
("Alternative Award Method") from the Trust or to replace such Award with
an equivalent cash benefit ("Equivalent Benefit Awards"), in each case if
the Company reasonably determines that such Alternative Award Method or
Equivalent Benefit Award is more administratively attractive to the
Company. The Company shall provide written notice to the Trustee, the
Shareholders' Representatives and the Participant within 15 Business Days
prior to a Distribution Date or 15 Business Days following receipt of a
Company Allocation Notice or Withdrawal Notice, as applicable, of its
intent to elect an Alternative Award Method or provide an Equivalent
Benefit Award and directing the Trustee to take any actions necessary to
accomplish the Alternative Award Method. For the purposes of this
Agreement "Equivalent Benefit Award" shall mean an amount in cash equal to
the average Market Price for the five trading day period preceding the
applicable Distribution Date or Withdrawal Date, multiplied by the total
number of ESOT Shares (and other Company Common Stock) proposed to be
allocated or subject to the applicable Award, as the case may be (plus the
fair market value of any other property subject to such Award as determined
in good faith by agreement of the Board of Directors of the Company and the
Shareholders' Representatives). "Market Price" shall mean on the date
specified, the last sale price of the Company Common Stock, on such date
or, if no such sale takes place on such date, the average of the closing
bid and asked prices thereof on such date, in each case as officially
reported on the principal national securities exchange on which the Company
Common Stock is then listed or admitted to trading, or (b) if the Company
Common Stock is not then listed or admitted to trading on any national
securities exchange but is designated as a national market system security
by the National Association of Securities Dealers, Inc. ("NASD"), the last
trading price of the Company Common Stock on such date, or (c) if there
shall have been no trading on such date or if the Common Stock is not so
designated, the average of the closing bid and asked prices of the Company
Common Stock on such date as shown by the NASD automated quotation system,
or (d) if the Company Common Stock is not then listed or admitted to
trading on any national exchange or quoted in the over-the-counter market,
the fair value thereof determined in good faith by agreement of the Board
of Directors of the Company and the Shareholders' Representatives. In the
event that the Alternative Award Method or Equivalent Benefit Award
selected by the Company would be less tax advantageous to a Participant
than the anticipated tax treatment applicable to the original Award, in
addition to such Alternative Award Method or Equivalent Benefit Award, as
soon as practicable following the applicable Distribution Date or
Withdrawal Date, the Company shall pay to such Participant an additional
amount equal to the difference between the actual taxes (including any
social security, contribution or similar employment tax imposed in respect
of compensation) incurred by the Participant in connection with such
Alternative Award Method or Equivalent Benefit Award (including any income
tax incurred by the Participant with respect to the receipt of the
additional amount) and the taxes (including any social security,
contribution or similar employment tax imposed in respect of compensation)
that would have been incurred by such Participant if the Alternative Award
Method had not been used or the Equivalent Benefit Award had not been paid
(the "Tax Gross Up"). The determination as to whether the tax treatment of
an Alternative Award Method or Equivalent Benefit Award is more or less
advantageous to a Participant than the anticipated tax treatment applicable
to the original Award, and, if applicable, the amount of the Tax Gross Up
shall be determined by the mutual agreement of the Company and the
Shareholders' Representatives; provided, however, that if the Company and
the Shareholders' Representatives cannot reach an agreement as to the
foregoing matter prior to the applicable Distribution Date or Withdrawal
Date the matter or matters shall be submitted to the Company's outside
independent auditors (acting as an expert) for final determination;
provided that there shall be no distribution or withdrawal of such Award
until such determination(s) have been agreed to by the Shareholders'
Representatives and the Company or determined by the Company's independent
auditors. Any ESOT Shares or other property subject to an Award that is
provided by an Alternative Award Method or with an Equivalent Benefit Award
shall be returned by the Trustee to the Company.
3.25 METHODS OF PAYMENTS AND DISTRIBUTIONS. All distributions
hereunder shall be made on the Distribution Date or Withdrawal Date or, if
a Distribution Certification has not been received by the Trustee, promptly
after the receipt of such Distribution Certification. Payments of money by
the Trustee may be made by its check payable to the order of the payee
designated by the Shareholders' Representatives and mailed to the payee at
the address specified by the Shareholders' Representatives. Distributions
of the ESOT Shares by the Trustee shall be made by requesting the Company,
or its transfer agent, to issue to the Participant a stock certificate
evidencing ownership of the designated number of ESOT Shares. In the case
of an Equivalent Benefit Award, all distributions from the Trust shall be
made as soon as reasonably practicable after any given Distribution Date or
Withdrawal Date or, if a Distribution Certification has not been received
by the Trustee, promptly after receipt of such Distribution Certification.
3.26 REQUIRED REGISTRATIONS AND FILINGS. (a) No allocation of ESOT
Shares or distribution or withdrawal of Awards shall be made to any
Participant in any jurisdiction in which such allocation, distribution or
withdrawal is prohibited or illegal. In the event that any filings or
registrations shall be necessary in order to permit allocations,
distributions or withdrawals of ESOT Shares out of the Trust, the Company
shall use commercially reasonable efforts to make such filings or
registrations and where it is not appropriate for such registrations or
filings to be made by the Company, the Company shall direct the Trustee in
effecting such registrations or filings. The cost of such filings or
registrations, including reasonable advisers' fees, shall be paid by the
Company; provided, however, that if any such filings or registrations are
required to be made as a result of the distribution of Awards by the
Trustee to a larger number of individuals in the relevant jurisdictions
than are specified in Schedule 3 hereto, the costs of such filings or
registrations shall be paid out of the Trust Fund. Notwithstanding the
foregoing, if the Company reasonably determines that compliance with the
securities laws of a particular jurisdiction other than the United States
would be impractical, including as a result of associated costs, the
Company shall not be required to complete such registrations or filings and
the Trustee shall not be liable for such decision nor required to take any
action inconsistent with the Company's decision. The Company shall provide
written notice of such determination to the Trustee and the Shareholders'
Representatives not less than five days before the applicable Allocation
Date, Distribution Date or Withdrawal Date, as the case may be (the "Non-
Compliance Notice"). Upon receipt of a Non-Compliance Notice, the
Shareholders' Representatives and the Company shall instruct the Trustee to
sell the related ESOT Shares and remit to each Participant an amount equal
to the net proceeds from such sale, less the amount of taxes and costs
specified in Section 3.8 and Article III A hereof.
(1) The Company shall use its reasonable best efforts to file
(at its sole cost and expense) with the Securities and Exchange Commission
of the United States a registration statement on Form S-3 (if the Company
so qualifies) to permit the resale of ESOT Shares in an amount not to
exceed the withholding and other tax obligations (including taxes actually
imposed directly on and due and payable by a Participant) relating to the
Participants who were allocated ESOT Shares on the Closing Allocation Date
and December 31, 1999 in respect of such shares; provided that the Company
shall not be required to effect a registration covering the ESOT Shares to
be sold by the Trustee to the extent that the Company purchases or arranges
for the purchase of such ESOT Shares pursuant to Section 3.10. The Company
shall cause such registration statement to be effective for 180 days after
December 31, 1999. In addition, the Company shall use its reasonable best
efforts to file (at its sole cost and expense) with the Securities and
Exchange Commission of the United States a second registration statement on
Form S-3 (if the Company so qualifies) permitting the resale of ESOT Shares
in an amount not to exceed the withholding and other tax obligations
(including taxes actually imposed directly on and due and payable by a
Participant) relating to the Participants in respect of ESOT Shares
allocated to such Participants which first becomes due after December 31,
2000; provided that the Company shall not be required to effect a
registration covering the ESOT Shares to be sold by the Trustee to the
extent that the Company purchases or arranges for the purchase of such ESOT
Shares pursuant to Section 3.10. The Company shall cause such registration
statement to be effective for 120 days after December 31, 2000.
Notwithstanding the foregoing, the Company has the right, in its sole and
absolute discretion, to delay filing either registration statement or to
suspend the effectiveness of such filed registration statement; provided,
that no delay in filing or suspension of effectiveness shall reduce the
minimum number of days that such registration statement is required to be
effective hereunder; provided, further, that unless the Board of Directors
shall determine that such delay or suspension is in the best interests of
the Company, the Company shall not delay filing nor suspend the
effectiveness of either registration statement for a period exceeding 90
days without the prior written consent of the Shareholders' Representatives
(such consent not to be unreasonably withheld). Each Participant shall
provide notice of required tax sales by such Participant under this Section
3.7 in accordance with the procedures prescribed by the Company and the
Shareholders' Representatives.
(2) In the event during the period commencing on the Closing
Date and ending on the fourth anniversary thereof, the Company offers the
holders of JLW Registrable Securities (as defined in the Stockholder
Agreement entered into by the Company and each Shareholder under the
Purchase Agreements (the "JLW Stockholder Agreement")) registration
pursuant to Section 6.1 of the JLW Stockholder Agreement, the Company shall
notify the Shareholders' Representatives at least 20 days before the
anticipated filing date. The Shareholders' Representatives shall notify
the Company promptly (and in no event later than 10 days after such notice)
of their election to include ESOT Shares which have been distributed to
Participants in such registration statement. If the Shareholders'
Representatives so elect, the Participants shall be allowed, to the extent
permitted by any applicable agreements to which the Company or any of its
subsidiaries is bound, to participate in any such registration statement on
the same basis as the other holders of the JLW Registrable Securities;
provided that if such participation is not so permitted, the Company will
in good faith attempt to obtain the necessary consents.
3.27 WITHHOLDING AND PAYMENT OF TAXES. Upon the direction of the
Company, the Trustee shall withhold, require withholding, or otherwise
satisfy any withholding obligations, (including both the withholding
obligation of the Company, any subsidiary or any affiliate and of the
relevant Participant), in respect of any allocation or distribution which
it is directed to make pursuant to this Agreement, such amount as the
Company may reasonably estimate to be necessary to comply with applicable
federal, state, local and foreign withholding requirements (including any
employer portion of any social security, contribution or similar employment
tax imposed in respect of compensation to the relevant Participant arising
out of the applicable Award). Upon the written request of a Participant
and to the extent permitted by applicable law, the Trustee shall withhold
additional amounts in excess of the amount required to satisfy withholding
obligations under this provision. The Company shall direct the Trustee to
take such other actions as the Company may deem advisable to enable the
Trustee, the employer of the relevant Participants and the relevant
Participants to satisfy their respective obligations for the payment of
withholding taxes and other tax obligations referred to herein. This
direction shall include authority to receive cash from the Participant and
to make payments in respect thereof in satisfaction of any Trustee,
Company, subsidiary, affiliate or Participant withholding tax obligation
referred to herein or, to the extent that the Participant fails to arrange
for such cash payments, to sell ESOT Shares on behalf of the relevant
Participant which sale may be made to the Company (at the Company's
election), to a designee of the Company or in the public market (subject to
3.10 below). In connection with any sale in the public market under this
Section 3.8, the Company shall be entitled to direct the Trustee to sell
the ESOT Shares of a Participant over any period of time not to exceed 15
Business Days following the day taxes are due in respect of such
Participant. Any taxes withheld and any additional amounts withheld by the
Trustee shall be paid to the relevant taxing authority; provided that if
the Company, its subsidiaries or its affiliates have paid such taxes prior
to the sale by the Trustee, the Trustee shall remit the proceeds from such
sale to the Company. Upon settlement of such tax liability and any related
sale of ESOT Shares hereunder, the Trustee shall, to the extent the
conditions to distribution or withdrawal hereunder have been satisfied,
distribute the balance of the ESOT Shares then subject to distribution or
withdrawal to the relevant Participant on the applicable Distribution Date
or Withdrawal Date. To the extent that shares are sold to meet such tax
liability, the number of shares shall be rounded up to the nearest whole
number and any excess cash shall be distributed to the relevant
Participant.
3.28 NO FRACTIONAL SHARES. No fractional shares shall be allocated
pursuant to any Award.
3.29 SALES OF THE TRUST SHARES. In any case under this Agreement
where the Trustee is directed to sell any ESOT Shares and the ESOT Shares
cannot be sold by the Trustee without registration, if the Company elects
not to register such shares to allow for such sale, the Company agrees to
purchase or arrange for the purchase of such shares pursuant to an
applicable exemption from registration at a per share price equal to the
average Market Price for the five trading day period preceding the
applicable date on which the related tax is due or that the Trustee is
otherwise required to sell such ESOT Shares.
3.30 DISTRIBUTIONS SUBJECT TO RECALL UNDER THE PURCHASE AGREEMENTS.
(a) In the event any Initial ESOT Shares are required to be returned by the
Trustee to the Company pursuant to Section 1.4 of each of the Purchase
Agreements (a "Deficit"), the Company and the Shareholders' Representatives
shall provide written notice (the "Initial ESOT Shares Return Notice") to
the Trustee specifying the number of Initial ESOT Shares to return. Within
five Business Days after receipt of the Initial ESOT Shares Return Notice,
the Trustee shall return to the Company such Initial ESOT Shares as are in
its possession subject, in respect of ESOT Shares required to be recalled
from Participants pursuant to Section 3.11(b), to receipt of such shares by
the Trustee. The Trustee shall return to the Company any additional
Initial ESOT Shares received from Participants within five Business Days
after receipt thereof. The Shareholders' Representatives shall have the
discretion to determine the Regional Sub Fund(s) or Sub Sub Fund(s) in
respect of which the shares subject to such notice shall be deducted or
recalled. The Shareholders' Representatives shall provide written notice
to the Trustee within five Business Days following receipt by the Trustee
of the Initial ESOT Shares Return Notice specifying the number of Initial
ESOT Shares and Regional Sub Fund(s) and, if applicable, Sub Sub Fund(s) in
respect of which such shares will be deducted or recalled. To the extent
that Initial ESOT Shares are withdrawn from Participant Accounts or
recalled pursuant to Section 3.11(b), the number of shares withdrawn or
recalled in respect of a specified Regional Sub Fund or, if applicable, Sub
Sub Fund shall be determined on a pro rata basis (on the basis of the
number of ESOT Shares subject to an Award made to a Participant).
(1) In the event that a Participant is required pursuant to
paragraph (a) above to return ESOT Shares distributed to such Participant
hereunder, the Trustee as directed by the Company and the Shareholders'
Representatives shall notify such Participant and such Participant so
notified shall return, or cause to be returned, to the transfer agent
specified in such notice for cancellation, certificates representing the
shares received by such Participant no later than five Business Days after
receipt of such notice. The transfer agent shall cancel each returned
certificate and issue to such Participant a new certificate representing
such Participant's shares, less the number of ESOT Shares required to be
returned pursuant to paragraph (a) above. To assist in effectuating the
provisions of this Section 3.11, the Company may enter stop transfer orders
with the transfer agent against the transfer of any Initial ESOT Shares
held by such Participant that are required to be returned for cancellation
pursuant to this section, which stop transfer orders shall be withdrawn by
the Company, in each case, once the applicable Initial ESOT Shares are so
returned.
3.31 DISTRIBUTIONS SUBJECT TO RECALL UNDER THE SCCA. (a) In the
event any ESOT Shares are required to be returned by the Trustee under the
SCCA (a "SCCA Reallocation"), the Shareholders' Representatives shall
provide written notice (the "SCCA Return Notice") to the Trustee specifying
the number of ESOT Shares to be returned and the Regional Sub Fund(s), Sub
Sub Fund(s), if applicable, and Participant Accounts in respect of which
such shares will be deducted or recalled. Within five Business Days after
receipt of the SCCA Return Notice, the Trustee shall return such ESOT
Shares as are in its possession subject, in respect of ESOT Shares required
to be recalled from Participants pursuant to the SCCA Undertaking, to
receipt of such shares by the Trustee. The Trustee shall return in
accordance with the SCCA Return Notice any ESOT Shares received from
Participants within five Business Days after receipt thereof.
(1) In connection with obtaining such ESOT Shares from
Participants, the Shareholders' Representatives may take such steps as they
consider appropriate to enforce any or all SCCA Undertakings. The Trustee
shall not take any action to enforce any SCCA Undertaking.
(2) In connection with any SCCA Return Notice, the Trustee
shall only be required to return ESOT Shares in its possession or received
by it from Participants after any efforts by the Shareholders'
Representatives pursuant to subsections (b) or (c) above.
3.32 ALLOCATION OF CAPITAL GAINS; VALUE OF DISTRIBUTED SHARES FOR
TAX PURPOSES. Gains from the sale of capital assets held by the Trust
shall be allocated to income. In determining the "Distributable Net
Income" for a Participant's account pursuant to section 643(a) of the
Internal Revenue Code, such Participant's Distributable Net Income shall
include gains on the sale of ESOT Shares (and any other capital assets)
allocated to such Participant's Account. Any sale of ESOT Shares allocated
to a Participant's Account by the Trustee to satisfy any tax or tax
withholding obligations relating to such Participant shall be deemed to be
a distribution to such Participant from his or her Participant Account
equal to the amount of the disbursement from the Trust. Unless applicable
law would require a date other than the date of the taxable event for
determining the ESOT Shares' value, for purposes of determining a
Participant's taxable income with respect to ESOT Shares by reason of a
taxable event such as an Allocation Date, Distribution Date or Withdrawal
Date of ESOT Shares (or such other taxable event as occurs or is deemed to
occur under applicable law), as the case may be, the per share value of the
ESOT Shares shall be the actual price per share realized by the Trustee on
a sale of ESOT Shares sold by the Trustee on the date of the taxable event.
If the Trustee did not sell any ESOT Shares on such date, the per share
price shall equal the average Market Price for the five trading day period
preceding the date of the taxable event. If the Trustee realizes more than
one sales price on the date of a taxable event, the per share value of the
ESOT Shares shall equal the weighted average of the per share sales prices
realized on such taxable event date.
ARTICLE III A
TAXES
3A.1 Except with respect to withholding taxes pursuant to
Section 3.8, tax obligations of the Trust shall be paid to the appropriate
taxing authority by the Trustee exclusively from the assets of or income
and proceeds from the Trust Fund. Such taxes shall be allocable to each
Participant in accordance with such Participant's pro rata interest in the
Trust Fund. Upon the direction of the Company, the Trustee shall take all
actions as the Company may deem advisable to enable the Trustee to satisfy
obligations for the payment of taxes imposed on the Trust. This authority
shall include authority to sell ESOT Shares and to make payments in
satisfaction of any tax obligation.
ARTICLE IV
INVESTMENT AND ADMINISTRATION OF THE TRUST FUND
4.33 INVESTMENT POWERS OF TRUSTEE. The Trustee shall hold only the
ESOT Shares. The Trustee shall temporarily invest any cash included in the
Trust Fund pending distribution or payment of expenses, taxes or
indemnities hereunder, in (i) investments in United States Government
obligations with maturities of less than six months, (ii) interest-bearing
accounts, including but not limited to time deposits, saving accounts and
certificates of deposit, with maturities of less than six months in any
bank, including the Trustee's, with aggregate capital in excess of
$1,000,000,00 and a Xxxxx'x Investor Services rating of at least P1, or an
equivalent rating from a nationally recognized ratings agency, which
accounts are insured by the Federal Deposit Insurance Corporation or other
similar federal agency, (iii) obligations issued or guaranteed by any
agency or instrumentality of the United States of America with maturities
of less than six months, (iv) money market funds authorized to invest in
short term securities issued or guaranteed as to principal and interest by
the United States Government and repurchase agreements with respect to such
securities. The parties acknowledge that the Trustee shall not be
responsible for any diminution in the Trust Fund due to losses resulting
from investments. The Trustee may use its own Bond Department in executing
purchase and sales of permissible investments. Subject to the preceding
sentence, the Trustee shall have the powers described below.
(1) The Trustee may collect and receive any and all money and
other property due to the Trust and give full discharge therefor.
(2) The Trustee may deposit cash into interest bearing
accounts in the banking department of the Trustee or an affiliated banking
organization.
(3) The Trustee may appoint custodians or subcustodians
(including affiliates of the Trustee), as to part or all of the Trust,
provided, however, that any such custodian or subcustodian must also be a
United States domestic corporation incorporated in a jurisdiction agreed to
by the Company and the Shareholders' Representatives and agree to be bound
by the Stockholder Agreement executed by the Trustee in accordance with
Section 1.4 hereof.
(4) The Trustee may make, execute and deliver all
conveyances, proxies, releases or instrumentations in writing necessary or
proper for the exercise of its obligations under this Agreement.
(5) The Trustee may generally do all acts, whether or not
expressly authorized, which the Trustee may reasonably deem necessary or
desirable for the protection of the Trust; provided, however, prior to such
act (or where not practicable promptly following) the Trustee shall provide
notice to the Company and the Shareholders' Representatives of all such
actions, if not expressly authorized pursuant to this Agreement. No
implied covenant or obligations shall be read into this Agreement.
4.34 ADMINISTRATIVE POWERS OF TRUSTEE. The Trustee shall have the
power in its discretion:
(1) subject to Section 4.1(c) above, to cause any shares of
stock to be registered and held in the name of one or more of its nominees,
or one or more nominees of any system for the central handling of
securities, without increase or decrease of the liability of the Trustee
hereunder;
(2) with the prior written consent of the Company and the
Shareholders' Representatives to settle, compromise or submit to
arbitration any claims, debts or damages due or owing to or from the Trust;
to commence or defend suits or legal proceedings to protect any interest of
the Trust; and to represent the Trust in all suits or legal proceedings in
any court or before any other body or tribunal;
(3) with the prior written consent of the Company and the
Shareholders' Representatives and subject to Section 4.1(c) above, to
organize under the laws of any state a corporation for the purpose of
acquiring and holding title to any property which it is authorized to
acquire under this Agreement and to exercise with respect thereto any or
all of the powers set forth in this Agreement;
(4) subject to Section 1.6 hereof, to vote or to give any
consent with respect to any securities, including the ESOT Shares, held by
the Trust either in person or by proxy for any purpose.
(5) generally to do all acts, whether or not expressly
authorized, which the Trustee may in good xxxxx xxxx reasonably necessary
or desirable for the protection of the Trust Fund.
1.35 DEALINGS WITH TRUSTEE. Persons dealing with the Trustee shall
be under no obligation to see to the proper application of any money paid
or property delivered to the Trustee or to inquire into the Trustee's
authority as to any transaction.
ARTICLE V
SETTLEMENT OF ACCOUNTS,
ENFORCEMENT OF TRUST AND LEGAL PROCEEDINGS
5.36 SETTLEMENT OF ACCOUNTS OF TRUSTEE. (a) The Trustee or its
agent shall maintain such books, records and accounts as may be necessary
for the proper administration of the Trust. The Trustee's financial
statements, books and records with respect to the Trust Fund shall be open
to inspection by the Company or the Shareholders' Representatives or their
representatives upon reasonable notice at all reasonable times during
business hours of the Trustee.
(1) The Trustee shall render to the Company and to the
Shareholders' Representatives monthly statements of its receipts and
disbursements as Trustee hereunder. Within 30 days after the close of each
year or any termination of the duties of the Trustee, the Trustee shall
prepare and mail in duplicate to the Company and the Shareholders'
Representatives an account of its acts and transactions as Trustee
hereunder including allocations, disbursements and dispositions of Awards.
If the Company and the Shareholders' Representatives find the annual
accounts to be correct, the Company and the Shareholders' Representatives
shall each sign the instrument of settlement annexed to one counterpart of
the account and return such counterpart to the Trustee, whereupon the
account shall become an account stated as among the Trustee, the Company
and the Shareholders' Representatives. If within one year after receipt of
the account or any amended account the Company or the Shareholders'
Representatives have not signed and returned a counterpart to the Trustee,
or filed with the Trustee notice of any objection to any act or transaction
of the Trustee, the account or amended account shall become an account
stated as between the Trustee and such party. If any objection has been
filed, and if the Company or the Shareholders' Representatives are
satisfied that it should be withdrawn or if the account is adjusted to its
satisfaction, the Company or the Shareholders' Representatives, as the case
may be, shall in a writing filed with the Trustee signify its approval of
the account, and it shall become an account stated as between the Trustee
and such party.
(2) When an account becomes an account stated, such account
shall be finally settled, and the Trustee shall be completely discharged
and released, as if such account had been settled and allowed by a judgment
or decree of a court of competent jurisdiction in an action or proceeding
in which the Trustee, the Company, the Shareholders' Representatives and
all persons having or claiming to have any interest in the Trust Fund were
parties.
(3) The Trustee, the Company or the Shareholders'
Representatives shall have the right to apply at any time to a court of
competent jurisdiction for judicial settlement of any account of the
Trustee not previously settled as hereinabove provided. In any such action
or proceeding it shall be necessary to join as parties only the Trustee,
the Shareholders' Representatives and the Company (although the Trustee may
also join other parties as it deems appropriate), and any judgment or
decree entered therein shall be conclusive.
5.37 DETERMINATION OF INTERESTS IN THE TRUST FUND, ENFORCEMENT OF
TRUST AND LEGAL PROCEEDINGS. The Trustee shall have no duty to question
any direction given by the Company or Shareholders' Representatives to the
Trustee, including any direction advising the Trustee as to the designation
of Participants, the allocation of ESOT Shares, the distribution of Awards
and the satisfaction of Vesting Conditions. The Company and the
Shareholders' Representatives shall have authority, either jointly or
severally, to enforce this Agreement on behalf of or all persons claiming
an interest in the Trust Fund. In any action or proceeding affecting the
Trust Fund the only necessary parties shall be the Company, the
Shareholders' Representatives and the Trustee, and no other person shall be
entitled to any notice or process.
ARTICLE VI
EXPENSES AND COMPENSATION OF TRUSTEE
6.38 EXPENSES AND COMPENSATION. During the term of this Agreement,
the Company shall pay all administrative costs and the Trustee's fees,
costs and expenses hereunder, excluding any fees, costs, or expenses
relating to or arising out of any claims, actions or proceedings arising
out of or relating to this Agreement which shall be paid as provided in
Section 7.7(c) hereof. The Trustee shall be entitled to fees for services
as mutually agreed. To the extent the Trustee advances funds to the Trust
for disbursements, the Trustee shall be entitled to collect from the Trust
the disbursement and an amount equal to what would have been earned on the
sums advanced (based on the "federal funds" interest rate).
ARTICLE VII
FOR PROTECTION OF THE TRUSTEE
7.39 COMPOSITION OF THE SHAREHOLDERS' REPRESENTATIVES. The initial
European Region Representative, Asia Region Representative and Australasia
Region ESOT Representative shall be Xxxxxx Xxx, Xxxxx Xxxxxxx and Xxxxxx
Xxxxxx Xxxxxxxxxx, respectively. In the event Xxxxxx Xxxxxx Xxxxxxxxxx
cannot continue to serve as the Australasia Region ESOT Representative and
subject to the prior written consent of the Company and the European Region
Representative and Asia Region Representative (such consents not to be
unreasonably withheld), the Australasia Region Representative under the
SCCA shall be entitled to select a replacement. The Shareholders'
Representatives shall jointly notify both the Trustee and the replacement
in writing of such replacement. Each Shareholders' Representative shall,
and any other Shareholders' Representative may, provide the Trustee with
written notice of any changes in their respective positions as
Shareholders' Representatives pursuant to the SCCA. Until notified in
writing that any Shareholders' Representative has ceased to act in such
capacity, the Trustee may continue to rely on the authority of such
representative. Unless otherwise indicated, all actions required to be
taken by the Shareholders' Representatives shall require the consent of
each Shareholders' Representative.
7.40 SHAREHOLDERS' REPRESENTATIVES MEETINGS. No meetings of the
Shareholders' Representatives may be held within Australia or the United
Kingdom.
7.41 EVIDENCE OF ACTION BY THE SHAREHOLDERS' REPRESENTATIVES. (a)
Each Shareholders' Representative shall certify to the Trustee the name or
names of any person or persons authorized to act for such Shareholders'
Representative. Until any Shareholders' Representative notifies the
Trustee that any such person is no longer authorized to act for such
Shareholders' Representative, the Trustee may continue to rely on the
authority of such person.
(1) The Trustee may rely upon any certificate, notice or
direction purporting to have been signed on behalf of the Shareholders'
Representatives if the Trustee reasonably believes it to have been signed
by such Shareholders' Representatives or the person or persons authorized
to act for such Shareholders' Representatives. The Trustee may rely upon
any certificate, notice or direction of the Company if the Trustee believes
it to have been signed by a duly authorized officer or agent of the
Company.
7.42 NOTICES. All notices, requests, demands and other
communications made under or by reason of the provisions of this Agreement
shall be in writing and shall be given by hand-delivery, air courier, or
telecopier (with a copy also sent by hand-delivery or air courier, which
shall not alter the time at which the telecopier notice is deemed received)
to the parties at the addresses set forth below (or to such other addresses
or, in the case of copies, to such other Persons as shall be set forth in
notices given in accordance with the provisions hereof). Such notices
shall be deemed given: at the time personally delivered, if delivered by
hand with receipt acknowledged; upon transmission thereof by the sender
and issuance by the transmitting machine of a confirmation slip that the
number of pages constituting the notice have been transmitted without
error, if telecopied, and the second Business Day after timely delivery to
the courier, if sent by air courier.
(1) If to the Shareholders' Representatives, to:
Xxxxxx Xxx
c/o Jones Lang LaSalle
00 Xxxxxxx Xxxxxx
Xxxxxx XXX 0XX
Xxxxxxx
Telephone: 00-000-000-0000
Fax: 00-000-000-0000
and to:
Xxxxx Xxxxxxx
x/x Xxxxx Xxxx XxXxxxx
00xx & 00xx Xxxxxx
Xxxxxx House
Taikoo Place
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Telephone: 000-0000-0000
Fax: 000-0000-0000
and to:
Xxxxxx Xxxxxx Xxxxxxxxxx
x/x Xxxxx Xxxx XxXxxxx
Xxxxx 00
ASB Bank Centre
000 Xxxxxx Xxxxxx
Xxxxxxxx
Xxx Xxxxxxx
Telephone: 00-0-000-0000
Fax: 00-0-000-0000
With a copy (which shall not constitute notice) given in the
manner prescribed above, to:
Xxxxxxx Xxxxx
c/o Jones Xxxx LaSalle
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Telephone: 00-000-000 6040
Fax: 00-000-000-0000
and to:
Xxxxxxxxxxx Xxxxxxx
x/x Xxxxx Xxxx XxXxxxx
00xx & 00xx Xxxxxx
Xxxxxx House
Taikoo Place
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Telephone: 000-0000-0000
Fax: 000-0000-0000
With a copy (which shall not constitute notice) given in the
manner prescribed above, to:
Xxxxxxxxx and May
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X
Attn: Xxxxxx XxXxxxx, Esq.
Telephone: (0000) 000-0000
Fax: (0000) 000-0000
and to:
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq,
Telephone: (000) 000-0000
Fax: (000) 000-0000
(2) If to the Company, to:
Xxxxx Lang LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) given in the
manner prescribed above, to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
and to:
Xxxxx & Associates
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(3) If to the Trustee, to:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Escrow Division/Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
7.43 ADVICE OF COUNSEL. The Trustee may consult with any legal
counsel, including counsel to the Company or the Shareholders'
Representatives, with respect to the construction of this Agreement, its
duties hereunder or any act which it proposes to take or omit to take and
shall not be liable for any action taken or omitted in good faith pursuant
to such advice. If at any time the Trustee is in doubt concerning the
course which it should follow in administering this Agreement, it may
request the Shareholders' Representatives and the Company to advise it and
may rely upon any joint advice or direction of the Shareholders'
Representatives and the Company. The Trustee may also consult with legal
counsel (who may also be counsel to the Company generally) with respect to
its duties or obligations under the Stockholder Agreement. The Trustee
shall not be liable for any action taken or omitted to be taken in good
faith pursuant to such advice. All reasonable fees and expenses of counsel
shall be an expense of the Trustee and reimbursed as provided in Section
6.1 hereof.
7.44 FIDUCIARY RESPONSIBILITY. (a) The Trustee shall act with the
care, skill, prudence and diligence under the circumstances then prevailing
that a prudent person acting in like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and
with like aims, provided, however, that the Trustee shall incur no
liability to any person for any action taken pursuant to a direction,
request or approval which is given by the Company or the Shareholders'
Representatives in accordance with this Agreement, or is given in writing
by the Company or the Shareholders' Representatives in accordance herewith.
In the event of a dispute between the Company and Shareholders'
Representatives, the Trustee may apply to a court of competent jurisdiction
to resolve the dispute.
(1) The Trustee may hire legal counsel, agents, accountants,
actuaries, investment advisors, financial consultants or other
professionals to assist it in performing any of its duties or obligations
hereunder or under the Stockholder Agreement and such reasonable costs
shall be reimbursed pursuant to Section 6.1 hereof.
(2) Notwithstanding anything in this Agreement to the
contrary and except as provided in Section 7.7 hereof, the Trustee shall
not be responsible or liable for its failure to perform under this
Agreement or for any losses to the Trust in each case to the extent that
the same results from any event beyond the reasonable control of the
Trustee, its agents or custodians, including but not limited to
nationalization, strikes, expropriation, devaluation, seizure, or similar
action by any governmental authority, de facto or de jure; or enactment,
promulgation, imposition or enforcement by any such governmental authority
of currency restrictions, exchange controls, levies or other changes
affecting the Trust's property; or the breakdown, failure or malfunction of
any utilities or telecommunications systems; or any order or regulation of
any banking or securities industry including changes in market rules and
market conditions affecting the execution or settlement of transactions; or
acts of war, terrorism, insurrection or revolution; or acts of God; or any
other similar event. This Section shall survive the termination of this
Agreement.
(3) The Trustee shall not be liable for any act or omission
of any other person in carrying out any responsibility imposed upon such
person, and under no circumstances shall the Trustee be liable for any
indirect, consequential or special damages with respect to its role as
Trustee.
7.45 INDEMNIFICATION. (a) Without prejudice to the Trustee's right
to compensation and reimbursement from the Company provided in Section 6.1,
the Trustee, its parent, subsidiaries and affiliates, and each of their
respective officers, directors, employees and agents (the "Indemnified
Parties") shall be indemnified and held harmless by the Company from and
against all liability, loss and expense, including reasonable attorneys'
fees and expenses ("Losses"), incurred by the Trustee or any of the
Indemnified Parties arising out of or in connection with this Trust and
Stockholder Agreement, except as a result of the Trustee's own gross
negligence or willful misconduct as determined by a final and non-
appealable judgment by a court of competent jurisdiction. If the Trustee
is successful in enforcing its rights to indemnification hereunder (as
determined by a final non-appealable judgment by a court of competent
jurisdiction), the costs and expenses of enforcing its right of
indemnification shall also be payable as provided in Section 7.7(c). This
indemnification shall survive the termination of this Trust.
(1) The Indemnified Parties shall be indemnified and held
harmless from and against all Losses incurred by the Indemnified Parties
arising out of or in connection with the payment of Federal or State income
taxes and any interest or penalties associated therewith that may be
assessed on the Company, the Participants or the Trust Fund on account of
the documentation or operation of the Trust.
(2) Without prejudice to the Trustee's right to compensation
and reimbursement from the Company provided in Section 6.1, the
indemnification provided in this Section 7.7 shall be the Company's
obligation, and shall be satisfied first out of the Trust Fund (both
allocated and unallocated shares) prior to any demand on the Company;
provided, that if the Trust Fund is insufficient to satisfy the indemnity
obligations to the Trustee or if the Trustee is prohibited by law from
satisfying its obligations out of the Trust Fund, the Company shall assume
such obligations to the extent of such insufficiency. Claims made against
the Trust Fund shall first be made against unallocated ESOT Shares and, if
such shares are insufficient to fulfill the indemnity obligations, against
Awards allocated to Participant's Accounts (but not distributed) on a pro
rata basis. No distribution of ESOT Shares and other property held in the
Trust Fund that are necessary to satisfy the foregoing indemnity
obligations shall be made until resolution of the Trustee's claim to
indemnification.
(3) If the Trustee undertakes, in good faith, or defends any
litigation arising in connection with this Trust or the Stockholder
Agreement, except for any litigation arising as a result of Trustee's own
gross negligence or willful misconduct, the Trustee shall be indemnified
against the Trustee's reasonable costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses) relating
thereto. The Trustee with respect to any such litigation shall have a
right to in good faith and after consultation with the Company and the
Shareholders' Representatives choose an appropriate counsel to handle any
such litigation. The Trustee may not settle or otherwise compromise any
such litigation, or any portion thereof, in a manner that would give rise
to any liability hereunder for an indemnity without the Shareholders'
Representatives prior written consent, which consent shall not be
unreasonably withheld; provided, that if the Trust Fund will not be
sufficient to satisfy such indemnity obligations, the Company's prior
written consent shall also be required, which consent shall not be
unreasonably withheld.
ARTICLE VIII
RESIGNATION AND REMOVAL OF TRUSTEE
8.46 RESIGNATION OF TRUSTEE. The Trustee may resign at any time by
filing with the Shareholders' Representatives and the Company its written
resignation. Such resignation shall take effect 60 days from the date of
such filing or upon appointment of a successor pursuant to Section 8.3,
whichever shall first occur.
8.47 REMOVAL OF TRUSTEE. The Company and the Shareholders'
Representatives may remove the Trustee at any time by delivering to the
Trustee a joint written notice of its removal and an appointment of a
successor pursuant to Section 8.3. Such removal shall not take effect
prior to 30 days from such delivery unless the Trustee agrees to an earlier
effective date.
8.48 APPOINTMENT OF SUCCESSOR TRUSTEE. (a) The appointment of a
successor to the Trustee shall take effect upon delivery to the Trustee of
(i) a joint written notice appointing such successor, executed by the
Company and the Shareholders' Representatives, and (ii) an acceptance in
writing, executed by such successor, both acknowledged in the same form as
this Agreement.
(1) All of the provisions set forth herein with respect to
the Trustee shall relate to each successor with the same force and effect
as if such successor had been originally named as a Trustee hereunder.
(2) If a successor is not appointed within 60 days after the
Trustee gives notice of its resignation pursuant to Section 8.1, the
Trustee may apply to any court of competent jurisdiction for appointment of
a successor.
8.49 TRANSFER OF FUND TO SUCCESSOR. Upon the resignation or removal
of the Trustee and appointment of a successor and after the final account
of the Trustee has been settled as provided in Article V, the Trustee shall
transfer and deliver the Trust Fund to such successor.
ARTICLE IX
DURATION AND TERMINATION OR REVOCATION OF TRUST AND AMENDMENT
1.50 DURATION AND TERMINATION. This Trust shall not be revocable
and shall continue until all of the ESOT Shares and other property in the
Trust Fund are distributed and a final accounting is prepared in accordance
with Article V or such other time as agreed to by the Company and the
Shareholders' Representatives; but in no event later than 90 days after
December 31, 2000 (the "Termination Date"). All ESOT Shares and other
property held in the Trust on the Termination Date shall be distributed to
the applicable Participants pursuant to this Agreement. If any ESOT
Escrow Shares continue to be held by the Escrow Agent on the Termination
Date, the Shareholders' Representatives shall appoint a custodian for the
Participant Accounts and the Trustee shall assign to such custodian the
right to receive any such ESOT Escrow Shares upon release by the Escrow
Agent. Upon receipt of any such Escrow Shares, the custodian shall
distribute such shares to the Participants; provided, that any distribution
shall be less any withholding tax or other obligations as provided in
Section 3.8 hereof. The Trust shall automatically terminate upon the
Company giving the Trustee and Shareholders' Representatives notice of a
Change of Control (as hereinafter defined). Notwithstanding any provision
hereof, upon such notice of a Change of Control (i) all ESOT Shares which
are allocated and subject to Vesting Conditions shall vest and be
distributed to the Participants; and (ii) the Shareholders' Representatives
shall direct the Trustee to sell all unallocated ESOT Shares and other non-
cash assets (if any) then held in the Trust Fund and shall in good faith
direct the Trustee to distribute the net proceeds less any taxes and other
costs payable pursuant to Section 3.8 or Article IIIA to such Potential
Participants as they may in their absolute discretion determine. As used
herein, the term "Change of Control" shall mean any of the following
events: (a) an acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of
the combined voting power of the then outstanding voting securities of the
Company; provided, however, that the following acquisitions shall not
constitute a Change of Control: (i) acquisition by or directly from the
Company, (ii) an acquisition by any employee benefit plan or trust
sponsored or maintained by the Company; and (iii) any acquisition described
in subclauses (A) or (B) of subsection (b) below; or (b) approval by the
stockholders of the Company of (i) a complete dissolution or liquidation of
the Company, (ii) a sale or other disposition of all or substantially all
of the Company's assets or (iii) a reorganization, merger, or consolidation
("Business Consolidation") unless either (A) all or substantially all of
the stockholders of the Company immediately prior to the Business
Combination own more than 50% of the voting securities of the entity
surviving the Business Combination, or the entity which directly or
indirectly controls such surviving entity, in substantially the same
proportion as they owned the voting securities of the Company immediately
prior thereto, or (B) the consideration (other than cash paid in lieu of
fractional shares or payment upon perfection of appraisal rights) issued to
stockholders of the Company in the Business Combination is solely common
stock which is publicly traded on an established securities exchange in the
United States. Upon making such distributions, the Trustee shall be
relieved from all further liability. The powers of the Trustee hereunder
shall continue so long as any assets of the Trust Fund remain in its hands.
8.51 AMENDMENT. The Company and the Shareholders' Representatives
shall have the right at any time and from time to time to amend this
Agreement in whole or in part, except that the duties, responsibilities,
indemnification and the right to compensation of the Trustee shall not be
increased or decreased without the Trustee's written consent. Any such
amendment shall become effective upon (a) delivery to the Trustee of the
written instrument of amendment, executed by the Company and the
Shareholders' Representatives, and (b) endorsement by the Trustee on such
instrument of its receipt thereof, together with its consent thereto, if
such consent is required. No such amendment shall adversely affect any
Award hereunder to a Participant or any Vesting Condition relating to any
such Award without the consent of such Participant. It is further agreed
that the preceding sentence may not be amended without the consent of each
Participant who is adversely affected.
ARTICLE X
MISCELLANEOUS
10.52 LAWS OF ILLINOIS TO GOVERN. This Agreement and the Trust
hereby created shall be construed and regulated by the laws of the State of
Illinois, except as otherwise provided by Federal law.
10.53 TITLES AND HEADINGS NOT TO CONTROL. The titles to articles and
headings of sections in this Agreement are placed herein for convenience of
reference only, and in case of any conflict the text of this Agreement,
rather than such titles or headings, shall control.
10.54 RELIANCE ON REPRESENTATIONS. (a) Each of the parties hereto
each acknowledge that each will be relying, and shall be entitled to rely,
on the representations, undertakings and acknowledgments of the other as
set forth in this Agreement. Each of the parties hereto each agree to
notify the other promptly if any of its representations, undertakings or
acknowledgments set forth in this Agreement ceases to be true.
(1) Each of parties hereto each represent and warrant to the
others that it has full authority to enter into this Agreement upon the
terms and conditions hereof and that, in the case of the Company and the
Trustee, the individual executing this Agreement on its behalf has the
requisite authority to bind the Company and the Trustee to this Agreement.
10.55 MUTUAL COOPERATION. The Company and the Shareholders'
Representatives shall cooperate fully at such time and to the extent
reasonably requested by the other in connection with determining any
information necessary for any notices hereunder as well as for determining
whether any Participants are subject to a Departure.
10.56 TRUST FUND NOT SUBJECT TO THE CLAIMS OF CREDITORS. The Trust
Fund shall not be subject to the claims of the Company's creditors.
10.57 TRUST FISCAL AND TAX YEAR. The fiscal and tax year of Trust
shall be the calendar year.
10.58 COUNTERPARTS. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.59 ENTIRE AGREEMENT. This Agreement constitute the entire
understanding and agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior and contemporaneous
agreements or understandings, inducements or conditions, express or
implied, written or oral, between such parties.
10.60 JURISDICTION. Each of the parties hereto hereby expressly and
irrevocably submits to the non-exclusive personal jurisdiction of the
United States District Court for the Northern District of Illinois and to
the jurisdiction of any other competent court of the State of Illinois
located in the County of Xxxx (collectively, the "Illinois Courts"),
preserving, however, all rights of removal to such federal court under 28
U.S.C. Section 1441, and to the non-exclusive jurisdiction of the High
Court of England and Wales in London (the "English Courts"), in connection
with all disputes arising out of or in connection with this Agreement or
the transactions contemplated hereby and agrees not to commence any
litigation relating thereto except in such courts; provided that if the
aforementioned Illinois Courts do not have subject matter jurisdiction,
then the proceeding shall be brought in any other state or federal court
located in the State of Illinois, preserving, however, all rights of
removal to such federal court under 28 U.S.C. Section 1441.
Notwithstanding the foregoing, the parties hereto agree that no suit,
action or proceeding may be brought in any state court in the State of
Illinois unless jurisdiction is unavailable in any federal court in the
State of Illinois. Each party hereby waives the right to any other
jurisdiction or venue for any litigation arising out of or in connection
with this Agreement or the transactions contemplated hereby to which any of
them may be entitled by reason of its present or future domicile.
Notwithstanding the foregoing, each of the parties hereto agrees that each
of the other parties shall have the right to bring any action or proceeding
for enforcement of a judgment entered by the Illinois Courts or the English
Courts in any other court or jurisdiction.
10.61 SERVICE OF PROCESS. Each party irrevocably consents to the
service of process outside the territorial jurisdiction of the courts
referred to in Section 10.9 hereof in any such action or proceeding by
giving copies thereof by hand-delivery or air courier to his, her or its
address as specified in or pursuant to Section 7.4 hereof. However, the
foregoing shall not limit the right of a party to effect service of process
on the other party by any other legally available method.
10.62 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES (TO THE
FULLEST EXTENT PERMITTED BY LAW) ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.
THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO THIS AGREEMENT. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by each of the Shareholders' Representatives and the duly
authorized officers (including the affixing of their respective seals
hereto) of LaSalle Partners Incorporated and Xxxxxx Trust and Savings Bank
as of the day and year first above written.
LASALLE PARTNERS INCORPORATED
[Seal]
By: /s/ Xxxxxxx X. Xxxxxxxx
Attest: Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
/s/ Xxxxxxx Xxxxxx Xxxxxx
XXXXXX TRUST AND SAVINGS BANK
[Seal]
By: /s/ X. X. Xxxxxxx
Attest: Name: X. X. Xxxxxxx
Title: Assistant Vice President
/s/ X. Xxxxx
SHAREHOLDERS' REPRESENTATIVES:
Attest: /s/ Xxxxxx Xxx
European Region Representative
/s/ Xxxxxxx Xxxxxx Xxxxxx
Attest: /s/ Xxxxx Xxxxxxx
Asia Region Representative
/s/ Xxxxxx Xxxxxx
Attest: /s/ Xxxxxx Xxxxxx Xxxxxxxxxx
Australasia Region ESOT Representative
/s/Xxxxxxx Xxxxxxx Xxxxxxx
