Exhibit 10.14
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
the 22nd day of April, 1997, by and among La Salle Partners Incorporated (the
"Company"), a Maryland corporation formed to succeed to the business currently
conducted by La Salle Partners Limited Partnership ("LPL") and La Salle Partners
Management Limited Partnership ("LPML" and, together with LPL, "La Salle
Partnerships"), DEL-LPL Limited Partnership, a Delaware limited partnership
("DEL-LPL"), DEL-LPAML Limited Partnership, a Delaware limited partnership
("DEL-LPML" and, together with DEL-LPL, the "DEL Partnerships"), DSA-LSPL, Inc.,
a Delaware corporation ("DSA"), DSA-LSAM, Inc., a Delaware corporation ("DSA
II"; DSA, DSA II and their permitted assignees are sometimes collectively
referred to herein as the "DSA Parties"), and Xxxxxxxxx Holdings LLC ("G-LLC,"
which, together with its permitted assignees, is referred to as the "Xxxxxxxxx
Parties" and, with the DEL Partnerships and the DSA Parties, is collectively
referred to as the "Holders").
INTRODUCTION:
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DEL-LPL, DSA and G-LLC are parties to LPL's Amended and Restated
Partnership Agreement (the "LPL Agreement"), and DEL-LPAML, DSA II and G-LLC are
parties to LPML's Amended and Restated Partnership (the "LPML Agreement"; the
LPL Agreement and the LPML Agreement are sometimes collectively referred to
herein as the "La Salle Partnership Agreements" and each as a "La Salle
Partnership Agreement"). Pursuant to the La Salle Partnership Agreements, the
Holders collectively own all of the issued and outstanding partnership units
(the "Units") of the La Salle Partnerships.
The La Salle Partnerships, the DEL Partnerships and the DSA Parties
are parties to that certain Registration Rights Agreement dated as of November
30, 1994 (the "1994 Registration Rights Agreement");
The La Salle Partnerships are currently planning to incorporate their
businesses into the Company and subsidiaries of the Company and to issue common
stock in an underwritten public offering (the "IPO Transactions"). As part of
the IPO Transactions, the Units will be exchanged for shares of Common Stock of
the Company;
The DEL Partnerships, the DSA Parties and the La Salle Partnerships
desire to terminate the 1994 Registration Rights Agreement and enter into this
Agreement in order to take account of the IPO Transactions and to provide
identical registration rights to the DEL Partnerships, the DSA Parties and the
Xxxxxxxxx Parties.
Accordingly, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the meaning ascribed to them below:
"Affiliate" shall have the definition given to that term in Rule 12b-2
under the Exchange Act.
"Closing on the IPO Transaction" shall mean closing on a firm
commitment underwritten public offering of Common Stock.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in
Section 9.
"Restricted Stock" shall mean the Common Stock owned by a Holder at
the time of Closing on the IPO, but excluding shares of Common Stock which (a)
have been registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with the
registration statement covering them, or (b) have been publicly sold pursuant to
Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 9.
2. Termination of 1994 Registration Rights Agreement; Effectiveness.
Upon Closing of the IPO Transaction:
(a) The 1994 Registration Rights Agreement shall be deemed
terminated and of no further force and effect; and
(b) The provisions of this Agreement shall become effective
without further action by any of the parties hereto.
3. Restrictive Legend. Each certificate representing Common Stock
shall, except as otherwise provided in this Section 3 or in Section 4, be
stamped or otherwise imprinted with a legend substantially in the following
form:
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"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SUCH SHARES HAVE BEEN
REGISTERED UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
A certificate shall not bear such legend if, in the opinion of counsel
reasonably satisfactory to the Company, the securities being transferred may be
so transferred without registration under the Securities Act, including, but not
by way of limitation, pursuant to Rule 144(k) under the Securities Act.
4. Notice of Proposed Transfer; Right of First Offer. The provisions
of this Section 4 will apply to any proposed transfer of any Common Stock by a
Holder to a party other than (a) to any party to this Agreement; (b) to an
Affiliate of the transferring Holder; (c) to a party which, based on the
reasonable inquiry of the transferring Holder, will own after the transfer less
than five percent (5%) of the outstanding Common Stock of the Company unless
such party is one of the category of persons listed in Rule 13d-1 under the
Exchange Act, which person acquires such Common Stock in the ordinary course of
its business and not with the purpose nor with the effect of changing or
influencing the control of the Company, nor in connection with or as a
participant in any transaction having such purpose or effect; (d) to a purchaser
pursuant to the provisions of Rule 144 under the Securities Act, other than Rule
144(k); or (e) to an underwriter in a firm commitment underwriting pursuant to
Section 5 or 6 hereof (each of the transfers described in (a) through (e) of
this Section 4 being referred to as an "Exempted Transaction"). If a Holder
proposes to make a transfer that would not constitute an Exempted Transaction,
such Holder shall give written notice to the Company of its desire to effect
such transfer. Each such notice shall describe the manner of the proposed
transfer (including the consideration to be received) and, if requested by the
Company, shall be accompanied by an opinion of counsel reasonably satisfactory
to the Company to the effect that the proposed transfer may be effected without
registration under the Securities Act; provided, however, that no such opinion
of counsel shall be required (a) under the circumstance described in Section 5
or 6; or (b) for a transfer to one or more partners of the transferor (in the
case of a transferor that is a partnership) or to an affiliated corporation (in
the case of a transferor that is a corporation). Following receipt of such
notice of transfer, the Company shall have ten (10) business days in which to
elect to purchase all, but not less than all, of the Common Stock proposed to be
transferred, at a price equal to the average of the closing price of the Common
Stock on the national securities exchange on which it is then traded for the
five (5) trading days prior to the Holder's notice to the Company. If the
Company does not elect to purchase the Holder's Common Stock, the Holder shall
be entitled to transfer such stock in accordance with the terms of its notice.
Each certificate for Common Stock transferred as above provided shall bear the
legend set forth in Section 3, except that such certificate shall not bear such
legend if (i) such transfer is in accordance with the provisions of Rule 144 (or
any other rule permitting public sale without registration under the Securities
Act) or (ii) the opinion counsel referred to above is to the further effect that
the transferee and any subsequent transferee (other than an
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affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act. The restrictions
provided for in this Section 4 shall apply to all Common Stock owned by the
Holders, regardless of whether the certificates representing such Common Stock
are required to bear the legend prescribed by Section 3 in accordance with the
provisions of that Section.
5. Required Registration. (a) At any time after twelve (12) months
from the date of this Agreement, each of the DEL Partnerships, the DSA Parties,
and the Xxxxxxxxx Parties (a "Requesting Holder") may request the Company to
file a registration statement under the Securities Act covering the registration
for sale of all or any portion of the shares of Restricted Stock held by such
Requesting Holder in the manner specified in such notice, provided that the
shares of Restricted Stock for which registration has been requested shall
constitute at least 20% of the total shares of Restricted Stock originally
issued to such holder if such Requesting Holder shall request the registration
of less than all shares of Restricted Stock then held by such Requesting Holder
(or any lesser percentage if the reasonably anticipated aggregate price to the
public of such public offering would exceed $5,000,000). Notwithstanding
anything to the contrary contained herein, no request may be made under this
Section 5 within 120 days after the effective date of a registration statement
filed by the Company (i) upon request of a party hereto or (ii) in which the
Holders shall have been entitled to join pursuant to Section 6, and (in either
such event) in which there shall have been effectively registered all shares of
Restricted Stock as to which registration shall have been requested.
(b) Following receipt of any notice under this Section 5, the
Company shall immediately notify in writing all Holders from whom notice has not
been received and shall use its best efforts to effect the registration under
the Securities Act, for public sale in accordance with the method of disposition
specified in such notice from Requesting Holders, the number of shares of
Restricted Stock specified in such notice (and in all notices received by the
Company from other Holders within 30 days after the giving of such notice by the
Company, all of whom shall be deemed to be Requesting Holders hereunder). If
such method of disposition shall be an underwritten public offering, the
Requesting Holder which made the request first in time may designate the
managing underwriter of such offering, subject to the approval of the Company,
which approval shall not be unreasonably withheld or delayed.
(c) In the event that there shall be more than one Requesting
Holder, or if the Company determines to include the shares of Common Stock in
such Registration Statement pursuant to Section 5(e), then, if the registration
requested involves an underwritten public offering, the managing underwriter of
such offering shall determine whether existing market conditions permit the
inclusion in the registration of all shares of Restricted Stock which the
parties hereto wish to include in such registration pursuant to Section 5(a) and
5(b). If, in the opinion of such managing underwriter, the number of shares of
Restricted Stock to be included in such registration exceeds the largest number
(the "Maximum Sale Number") that can be sold in an orderly manner in such
offering within the price range acceptable to the parties requesting
registration, the managing underwriter shall so advise the Company. In such
case, subject to Section 5(e) hereof, the Company shall include in such
registration the Maximum Sale
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Number, allocated, first, to the shares to be registered by the Company for sale
for its own account; second, to the shares of Restricted Stock proposed to be
registered by the Requesting Holder who made the registration request first in
time; and thereafter among the shares proposed to be registered by the other
Requesting Holders pro rata in accordance with the aggregate number of shares of
Restricted Stock proposed to be registered by them.
(d) Each of the DEL Partnerships, the DSA Parties and the
Xxxxxxxxx Parties shall have the right (subject to the provisions of Section
5(c)) to effect only two demand registrations pursuant to this Agreement,
provided, however, that any demand registration that is effected pursuant to
the request of a Holder which includes fewer than the entire number of shares or
Restricted Stock requested by such Holder shall not be deemed a demand
registration for purposes of the limitation to two demands. For purposes of this
Agreement, the DEL Partnerships shall be deemed to be one entity, the DSA
Parties shall be deemed to be one entity and the Xxxxxxxxx Parties shall be
deemed to be one entity.
(e) The Company shall be entitled to include in any registration
statement referred to in this Section 5, for sale in accordance with the method
of disposition specified by the Requesting Holders, shares of Common Stock to be
sold by the Company for its own account. If, in the opinion of the managing
underwriter (if such method of disposition shall be an underwritten public
offering), such inclusion would cause the number of shares of Common Stock
registered to exceed the Maximum Sale Number, then the Company will nevertheless
have the right to include such shares of Common Stock for its own account if the
Board of Directors of the Company certifies to Requesting Holders that the
Company has a bona fide need to raise capital in the amount represented by the
shares of Common Stock requested to be included for its own account. In such
case, the Company shall include in such registration the Maximum Sale Number,
allocated, first, to the Company shares; second, to the shares to be sold by the
Requesting Holder who made the registration request first in time; and
thereafter among the other Requesting Holders, determined pro rata in accordance
with the aggregate number of shares of Restricted Stock proposed to be
registered by them. Except as provided in this Section 5(e) and except for
registration statements on Form X-0, X-0 or any successor thereto, the Company
will not file with the Commission any other registration statement with respect
to its Common Stock, for its own account, from the date of receipt of a notice
from a Requesting Holder pursuant to this Section 5 until the completion of the
period of distribution of the registration contemplated thereby.
6. Incidental Registration. If the Company at any time after twelve
(12) months after the date of this Agreement (other than pursuant to Section 5)
proposes to register any of its Common Stock under the Securities Act for sale
to the public, whether for its own account or for the account of other
shareholders or both (except with respect to registration statements on Form X-
0, X-0 or another form not available for registering the Restricted Stock for
sale to the public), each such time it will give written notice to all holders
of Restricted Stock of its intention so to do. Upon the written request of any
such holder, received by the Company within 30 days after the giving of any such
notice by the Company, to have any of its shares of Registered Stock registered
(which request shall state the intended method of disposition
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thereof), the Company will use its best efforts to cause the shares of
Restricted Stock as to which registration shall have been so requested to be
included in the shares to be covered by the registration statement proposed to
be filed by the Company, all to the extent requisite to permit the sale or other
disposition by the holder (in accordance with its written request) of such
shares of Restricted Stock so registered. The Company shall be entitled to
include shares of Common Stock for its own account in any registration statement
referred to in this Section 6, for sale in accordance with the method of
distribution specified by the requesting holder of Restricted Securities, if
such registration statement is being filed at the request of such holder. In
the event that any registration effected pursuant to this Section 6 shall
involve, in whole or in part, a firm commitment underwritten public offering of
Common Stock, the number of shares of Restricted Stock to be included in such an
underwriting may be reduced if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would materially and adversely
affect the distribution of the securities to be sold by the Company therein. In
the event of such reduction, the Company shall include in such registration,
first, the shares to be registered by the Company for sale for its own account;
second, the shares of restricted stock proposed to be sold by a holder who
requested the registration, if the registration is filed at the request of a
holder; and, third, the shares of all other holders (or if the registration is
not filed at the request of a holder, all holders), including the Holders, pro
rata in accordance with the aggregate number of shares of restricted stock (or,
in the case of the Holders, shares of Restricted Stock) proposed to be
registered by them.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 6 without thereby incurring
any liability to the holders of Restricted Stock.
7. Registration Procedures. (a) If and whenever the Company is
required by the provisions of Section 5 or 6 to use its best efforts to effect
the registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(i) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant
to Section 5, shall be on Form X-0, X-0, if available, or other form of
general applicability satisfactory to the managing underwriter selected as
therein provided) with respect to such securities and use its best efforts
to cause such registration statement to become and remain effective for the
period of the distribution contemplated thereby (determined as hereinafter
provided);
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and
comply with the provisions of the Securities Act with respect to the
disposition of all shares of Restricted Stock covered by such registration
statement in accordance with the
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sellers or sellers' intended method of disposition set forth in such
registration statement for such period;
(iii) furnish to each seller of shares of Restricted Stock
and to each underwriter such number of copies of the registration statement
and the prospectus included therein (including each preliminary
prospectus), including any supplements thereto, and other documents as such
persons reasonably may request in order to facilitate the public sale or
other disposition of the Restricted Stock covered by such registration
statement;
(iv) use its best efforts to register or qualify the
Restricted Stock covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of
Restricted Stock or, in the case of an underwritten public offering, the
managing underwriter reasonably shall request, provided, however, that the
Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is
not so qualified or to consent to general service of process in any such
jurisdiction;
(v) use its best efforts to list the Restricted Stock
covered by such registration statement with any securities exchange on
which the Common Stock of the Company is then listed;
(vi) immediately notify each seller of shares of
Restricted Stock and each underwriter under such registration statement, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the prospectus contained in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, or if it is necessary to amend or supplement such prospectus to
comply with the law, in which case each seller of Restricted Stock and each
underwriter therefore shall immediately cease delivery of such prospectus
and the Company will, at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement or an
amendment to such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares of Restricted Stock or
securities, such prospectus, as amended or supplemented, will comply with
the law;
(vii) if the offering is underwritten and at the request of
any seller of Restricted Stock, use its best efforts to furnish on the date
that Restricted Stock is delivered to the underwriters for sale pursuant to
such registration: (i) an opinion dated such date of counsel representing
the Company for the purposes of such registration, addressed to the
underwriters and to such
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seller, stating that such registration statement has become effective under
the Securities Act and that (A), to the best knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus and each amendment or supplement thereto comply as to
form in all material respects with the requirements of the Securities Act
(except that such counsel need not express any opinion as to financial
statements contained therein) and (C) to such other effects as reasonably
may be requested by counsel for the underwriters or by such seller or its
counsel and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to
such seller, in such form as is customary in the securities business for
such an offering with respect to such registration as such underwriters
reasonably may request;
(viii) as necessary to satisfy applicable due diligence
requirements, make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, subject to reasonable agreements
regarding confidentiality, financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent, in connection
with such registration statement; and
(ix) issue to any underwriter to which any holder of
shares of Restricted Stock may sell such shares of Restricted Stock in
connection with any such registrations (and to any direct or indirect
transferee of any such underwriter or to such holder, if such registered
offering is not underwritten) certificates evidencing such shares of
Restricted Stock without any legend restricting the transferability of the
shares of Restricted Stock.
(b) For purposes of Section 7(a) and 7(b) and of Section 5(c),
the period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby and
120 days after the effective date thereof.
(c) In connection with each registration hereunder, the sellers
of Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
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(d) In connection with the preparation and filing of each
registration statement registering shares of Restricted Stock under the
Securities Act, the Company shall give the holders of shares of Restricted Stock
on whose behalf such shares of Restricted Stock are to be so registered and
their underwriters, if any, and their respective counsel and accountants, the
opportunity to review such registration statement, each prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto.
(e) In connection with each registration pursuant to Section 5
or 6 covering an underwritten public offering, the Company and each seller agree
to enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature;
provided, however, that no seller shall be required to make any representations,
warranties or covenants relating to the Company and that the Company shall make
such representations, warranties and covenants.
8. Expenses. (a) All expenses incurred by the Company in complying
with Sections 5 and 6, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, costs of insurance and
fees and disbursements not to exceed $50,000 for one counsel for the sellers of
Restricted Stock, but excluding any Selling Expenses, are called "Registration
Expenses." All underwriting discounts and selling commissions applicable to the
sale of Restricted Stock are called "Selling Expenses."
(b) The Company will pay all Registration Expenses in accordance
with each registration statement under Section 5 and 6. All Selling Expenses in
connection with each registration statement under Section 5 or 6 shall be borne
by the participating sellers in proportion to the number of shares sold by each,
or by such participating sellers other than the Company (except to the extent
the Company shall be a seller) as they may agree.
9. Indemnification and Contribution. (a) In the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Section 5 or 6, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder, each officer, director, partner, agent and employee
of seller, each underwriter (as defined in the Securities Act) of such
Restricted Stock thereunder and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act, the Exchange Act, or other foreign,
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such Restricted Stock was registered under the Securities
Act pursuant to Section 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment thereof or
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supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus, and provided further that, with respect to any untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
prospectus, such indemnity in this subsection (a) shall not inure to the benefit
of any seller or underwriter if the person asserting any such loss, claim,
damage or liability who purchased the Common Shares which are the subject
thereof did not receive a copy of an amended preliminary prospectus or final
prospectus (or final prospectus as amended or supplemented) at or prior to the
written confirmation of the sale of such Common Shares to such person and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact made in such preliminary prospectus was corrected in the amended
preliminary prospectus or final prospectus (or final prospectus as amended and
supplemented).
(b) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Section 5 or 6, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Section 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus, and provided, further, however, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim,
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damage, liability or expense which is equal to the proportion that the public
offering price of the shares sold by such seller under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not in any event to exceed the proceeds by such seller from the
sale of Restricted Stock covered by such registration statement net of all
underwriting discounts and commissions.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to such indemnified party other than under this Section 9 and shall
relieve it only for any liability which it may have to such indemnified party
under this Section 9 if and to the extent the indemnifying party is prejudiced
by such omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with one counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
holder of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9, then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
that such holder is responsible for the portion represented by the percentage
that the public offering price of all securities offered by the registration
statement bears to the public offering price of all securities offered by such
registration statement, and the
11
Company is responsible for the remaining portion; provided, however, that, in
any such case, (A) no such holder will be required to contribute any amount in
excess of the public offering price of all such Restricted Stock offered by it
pursuant to such registration statement net of all underwriting discounts and
commissions; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Changes in Common Stock. If, and as often as, there is any
fundamental change in the Common Stock by way of a stock split, stock dividend,
combination or reclassification or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof as may be required so that the
rights and privileges granted hereby shall continue with respect to the Common
Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the shares of Restricted Stock to the public without registration,
at all times after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon
request (i) a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents filed by the Company as such
holder may reasonably request in writing in availing itself of any rule or
regulation of the Commission allowing such holder to sell any Restricted Stock
without registration.
12. Representations and Warranties of the Company. Effective upon
the effectiveness of this Agreement pursuant to Section 2, the Company
represents and warrants to the DEL Partnerships, the DSA Parties and the
Xxxxxxxxx Parties as follows:
(a) The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Charter or Bylaws of the Company or any provision of any
indenture, agreement or other instrument to which it or any of its properties
or assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other
12
instrument or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by
or on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto (including without
limitation permitted transferees of any Restricted Stock), whether so expressed
or not; provided, however, that notwithstanding the foregoing, and except as
provided below, no Holder shall have the right to sell, assign or otherwise
transfer any of its rights hereunder, whether or not in connection with a
transfer of Restricted Stock, without the express written consent of the
Company, which may be withheld by the Company in its sole discretion.
Notwithstanding anything else to the contrary in this Section 13(a):
(i) any party hereto shall have the right to assign its
rights hereunder to an Affiliate in connection with the transfer of
Restricted Stock to that Affiliate; and
(ii) the Xxxxxxxxx Parties shall have the right to assign
their rights hereunder to Xxxxxxx Xxxxxxxxx in connection with the transfer
of Restricted Stock to her, in which event the term "Restricted Stock" as
applied to Xxxxxxx Xxxxxxxxx shall be deemed to include any shares of
Common Stock transferred to her by Xxxxxxxxx-LPL Holdings, LLC, a Delaware
limited liability company, after the date hereof, a well as any shares of
Common Stock held by her that would otherwise be deemed to be Restricted
Stock under Section 1.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed to such party as follows:
if to the Company, to:
La Salle Partners Incorporated
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
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with a copy to:
Xxxxx & Associates
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: X.X. Xxxxx, Esquire
Fax: (000) 000-0000
if to DEL-LPL Limited Partnership or DEL-LPALM Limited Partnership,
to:
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Xxxxx & Associates
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: X.X. Xxxxx, Esquire
Fax: (000) 000-0000
if to DSA-LSPL, Inc. or DSA-LSAM, Inc., to:
c/o Dai-Ichi Life (U.S.A.), Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director
Fax: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx L.L.P.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Ko-Xxxx Xxxx
Fax: (000) 000-0000
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if to Xxxxxxxxx Holdings LLC, to:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx
Xxxxxx, Xxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
or subsequent transferee at such address as may have been furnished to the
Company in writing by such party or subsequent holder, or at such other address
or addresses as shall have been furnished in writing to the Company (in the case
of a holder of Restricted Stock) or to the holders of Restricted Stock (in the
case of the Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
(d) This Agreement may not be amended or modified in any way
that could adversely affect a Holder without the Holder's prior written consent,
and no provision hereof may be waived, without the written consent of the
Company and the holders of at least two-thirds of the outstanding shares of
Restricted Stock.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) The obligations of the Company to register shares of
Restricted Stock under Section 5 or 6 shall terminate as to any of the DEL
Parties, the DSA Parties or the Xxxxxxxxx Parties, on the later of (i) the date
on which the Company delivers to such party an opinion of counsel reasonably
acceptable to such party to the effect that such party is no longer an Affiliate
of the Company; or (ii) the first date on which the shares of Restricted Stock
owned by such party constitute less than eight percent (8%) of the outstanding
shares of Common Stock of the Company, which termination shall be effective
without any further action by any party hereto. Notwithstanding the foregoing,
the Company agrees that the provisions of Section 6 shall remain in effect, or
shall become effective again following such termination, as applicable (and
without further action by any party hereto) in the event that the Company grants
"piggyback" registration rights to a holder of shares of Common Stock other than
pursuant to
15
this Agreement, with the result that the Holders shall have rights under Section
6 during any period in which another holder of shares of Common Stock shall have
"piggyback" registration rights.
(g) Notwithstanding the provisions of Section 8(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for
not more than three periods not to exceed an aggregate of 90 days in any 12-
month period if there exists at the time material nonpublic information relating
to the Company which, in the reasonable opinion of the Board of Directors of the
Company, should not be disclosed.
(h) From and after the date of this Agreement, the Company shall
not, without the prior written consent of the holders of at least two-thirds of
the outstanding shares of Restricted Stock, enter into any agreement with any
holder or prospective holder of any securities of the Company which would allow
such holder or prospective holder (a) to include such securities in any
registration filed under Section 5 or 6 of this Agreement, unless under the
terms of such agreement such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of its
securities will not reduce the amount of the shares of Restricted Stock of the
holders which is included or (b) to make a demand registration which could
result in such registration statement being declared effective prior to the date
the Company receives a request from holders pursuant to Section 5 or within 120
days of the effective date of any registration effected pursuant to Section 5.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
16
LA SALLE PARTNERS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Title________________________
DEL-LPL LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Title________________________
DEL-LPAML LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Title________________________
DSA-LSPL, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------
Title________________________
DSA-LSAM, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------
Title________________________
XXXXXXXXX HOLDINGS LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------
Title________________________
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