EXHIBIT 10.9
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[FORM OF DEL STOCKHOLDER AGREEMENT]
STOCKHOLDER AGREEMENT, dated as of October [!], 1998 (this
"Agreement"), by and among (i) LaSalle Partners Incorporated, a Maryland
corporation ("Parent"), (ii) the Person named as "Stockholder" on the
signature page hereto (the "Stockholder") and (iii) if the Stockholder is
not a natural person, the person named as "Related DEL Owner" on the
signature page hereto.
WHEREAS, as of the date hereof, Parent and the other parties
named therein are entering into Purchase and Sale Agreements (the "Purchase
Agreements"), pursuant to which, among other things, it is contemplated
that Parent will acquire, directly or indirectly, the asset and property
management, advisory and other real estate-related businesses currently
being conducted under the name "▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇" (the "JLW Business");
WHEREAS, it is a condition to the consummation of the
transactions contemplated by the Purchase Agreements that each Person who
will receive shares of common stock, $.01 par value per share ("Common
Stock"), of Parent, upon the terms and subject to the conditions set forth
in the Purchase Agreements, shall have executed and delivered a stockholder
agreement that is similar in many respect to this Agreement;
WHEREAS, it is a condition to the consummation of the
transactions contemplated by the Purchase Agreements that each current
director, officer and employee of Parent, or any Subsidiary thereof, who
was a former partner in DEL and each entity that was a partner of DEL on
June 30, 1998 (each a "DEL Stockholder" and, collectively, the "DEL
Stockholders") and each Related DEL Owner if applicable, shall have
executed and delivered a Stockholder Agreement in the form of this
Agreement (with this Agreement and the Stockholder Agreements being
executed and delivered by the other DEL Stockholders and Related DEL Owners
if applicable being herein called the "DEL Stockholder Agreements"); and
WHEREAS, Parent, DEL and the other parties named therein have
entered into a Registration Rights Agreement, dated as of April 22, 1997
(the "Registration Rights Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, representations and warranties contained herein and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Terms. When used in this Agreement, the
following terms shall have the meanings specified:
"Additional Party Signature Page" means a signature page in the
form attached hereto as Exhibit A.
"beneficial ownership" shall have the meaning set forth under
Rule 13d-3 promulgated by the SEC under the Exchange Act.
"Board" means the entire board of directors of Parent, as
constituted in accordance with Parent's By-laws from time to time.
"Business Day" means any day (other than a Saturday or Sunday)
on which banks are permitted to be open and transact business in Chicago,
Illinois and London, England.
"Closing" means the closing of the transactions contemplated by
the Purchase Agreements.
"Closing Date" means the date upon which the Closing under each
of the Purchase Agreements occurs.
"Controlled Affiliate" means any Person controlled, directly or
indirectly, through one or more intermediaries, by the Stockholder or, if
applicable, the Related DEL Owner.
"Corporate Holder" shall have the meaning set forth in the
definition of the term Related Party Transfer.
"DEL" means DEL-LPL Limited Partnership, a Delaware limited
partnership, or DEL-LPAML Limited Partnership, a Delaware limited
partnership, or both.
"DEL Registrable Securities" means, at any time, all Restricted
Stock owned by DEL Stockholders who are current directors, officers or
employees of Parent or any direct or indirect Subsidiary thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended and from time to time in effect and any successor statute.
"group" shall have the meaning set forth in Section 13(d)(3) of
the Exchange Act.
"JLW Registrable Securities" means, at any time, all
Consideration Shares (and any shares of Common Stock received in respect of
such Consideration Shares) issued pursuant to the Purchase Agreements and
owned by current directors, officers and employees of Parent, or any direct
or indirect Subsidiary thereof, who were partners, directors, officers or
employees of the JLW Businesses.
"Parent Employee Directors" means, collectively, the four
executive officers of Parent who are members of the Board.
"Person" means any corporation, individual, joint stock
company, joint venture, partnership, unincorporated association,
governmental regulatory entity, country, state or political subdivision
thereof, trust or other entity.
"Registrable Securities" means, at any time, the Restricted
Stock (and any shares of Common Stock received in respect of such
Restricted Stock) that are subject to this Agreement.
"Related DEL Owner" means the person named as "Related DEL
Owner" on the signature page hereto who is a director, officer, employee or
partner of Parent or any Subsidiary thereof and who owns or holds an
interest, (beneficial or otherwise) direct or indirect, in the Stockholder.
"Related Party Transfer" means: (a) a Transfer of Restricted
Stock between the Stockholder, or if applicable, the Related DEL Owner and
any descendant of such Stockholder or, if the Stockholder is not a natural
person, the Related DEL Owner; (b) a Transfer of Restricted Stock between
the Stockholder or, if applicable, the Related DEL Owner and the spouse or
surviving spouse of such Stockholder or, if such Stockholder is not a
natural person, the Related DEL Owner or of any descendant of such
Stockholder or Related DEL Owner; (c) a Transfer of Restricted Stock
between the Stockholder or, if applicable, the Related DEL Owner and/or one
or more of the Persons described in clauses (a) or (b) (a "Qualifying
Persons") and any trust (a "Trust Holder") in respect of which such
Stockholder or Related DEL Owner and/or one or more Qualifying Persons have
a greater than five percent (5%), direct or indirect, financial, beneficial
or ownership interest, or have the right to direct or control the voting or
disposition of the Restricted Stock held by such Trust Holder; (d) a
Transfer of Restricted Stock between the Stockholder or, if applicable, the
Related DEL Owner and/or one or more Qualifying Persons and any corporation
or limited liability company (a "Corporate Holder") in respect of which the
Stockholder and, if applicable, the Related DEL Owner, and/or one or more
Qualifying Persons have a greater than five percent (5%), direct or
indirect, financial, beneficial or ownership interest, or have the right to
direct or control the voting or disposition of the Restricted Stock held by
such Corporate Holder; (e) a Transfer of Restricted Stock between the
Stockholder or, if applicable, the Related DEL Owner and/or one or more
Qualifying Persons and any general or limited partnership (a "Partnership
Holder") in respect of which the Stockholders or, if applicable, the
Related DEL Owner and/or one or more Qualifying Persons have a greater than
five percent (5%) direct or indirect financial, beneficial or ownership
interest, or have the right to direct or control the voting or disposition
of the Restricted Stock held by such Partnership Holder; or (f) a Transfer
of Restricted Stock between the Stockholder and the Related DEL Owner.
"Related Party Transferee" means any Person who shall have
acquired and who shall hold Restricted Stock pursuant to a Related Party
Transfer.
"Restricted Stock" shall mean the shares of Common Stock owned
by the Stockholder at and as of the Effective Date hereof which were
received by such Stockholder upon the dissolution of DEL but excluding
shares of Comon 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 or under the Securities
Act.
"Rule 144" means Rule 144 promulgated by the SEC under the
Securities Act.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended
and from time to time in effect and any successor statute.
"Subsidiary" of any Person means any other Person in respect of
which such first Person owns voting securities, other voting ownership or
voting partnership interests that are sufficient to elect at least a
majority of the board of directors or other governing body of such other
Person (or, if there are no such voting interests, 50% or more of the
equity interest of which) at the time of such determination, are owned by
such first Person or another Subsidiary of such first Person.
"Transfer" means, with respect to Restricted Stock, any sale,
assignment, pledge, hypothecation, encumbrance, gift or other disposition
or transfer of such Restricted Stock in any manner whatsoever, direct or
indirect, including without limitation by the merger, consolidation or sale
of securities of the holder of such Restricted Stock or an entity which
owns, directly or indirectly, a majority of the equity interest in such
holder.
"Voting Securities" means (i) Common Stock (including, without
limitation, the Restricted Stock), (ii) any other securities of Parent
entitled to vote generally for the election of directors of Parent and
(iii) any securities of Parent convertible into or exchangeable for or
exercisable for any Common Stock or such other securities.
Section 1.2 Words in Singular and Plural Form. Words used in
the singular form in this Agreement shall be deemed to import the plural,
and vice versa, as the sense may require.
ARTICLE II
TERM
Section 2.1 Effectiveness of Agreement. This Agreement shall
be effective upon the Closing of the transactions contemplated by the
Purchase Agreements (the "Effective Date").
Section 2.2 Term of Agreement. This Agreement shall terminate on
the date (the "Termination Date") that is the earliest to occur of (i) the
first Business Day immediately following the fifth annual meeting of
stockholders of Parent following the Effective Date, (ii) June 1, 2003 and
(iii) such date as of which this Agreement has been terminated by mutual
agreement of Parent and the Stockholder.
ARTICLE III
COVENANTS
Section 3.1 Covenants. During the period commencing on the
Effective Date and ending on the Termination Date (the "Covenant Period"),
each of the Stockholder and, if applicable, the Related DEL Owner shall
not, and shall cause each of their respective Controlled Affiliates not to,
directly or indirectly:
(a) make, or in any way cause or participate in, any
"solicitation" of "proxies" (as such terms are defined or used in Rule 14a-
1 promulgated under the Exchange Act) with respect to Parent, become a
"participant" in any "election contest" (as such terms are defined or used
in Rule 14a-11 promulgated under the Exchange Act) with respect to Parent,
or seek to advise, encourage or influence any person or entity with respect
to the voting of any Voting Securities, or execute any written consent with
respect to Parent or any Voting Securities (except as otherwise permitted
or required by this Agreement);
(b) (i) initiate, propose or otherwise solicit (or
participate in the solicitation of) stockholders for the approval of one or
more stockholder proposals with respect to Parent, as described in Rule
14a-8 promulgated under the Exchange Act or otherwise, (ii) induce or
attempt to induce any other individual or entity to initiate, propose or
solicit any such stockholder proposal, or (iii) seek election to or seek to
place a representative on the Board, except as permitted by this Agreement;
(c) in any manner, agree, attempt, seek or propose (or make
any request for permission) to deposit any Voting Securities, directly or
indirectly, in any voting trust or similar arrangement or to subject any
Voting Securities to any other voting or proxy agreement, arrangement or
understanding, except as permitted or required by this Agreement, provided
that this Section 3.1(c) shall not prohibit any such arrangement solely
among the Stockholder and, if applicable, the Related DEL Owner and/or one
or more of their respective Controlled Affiliates or any Qualifying
Persons, provided, further, that the Stockholder and, if applicable, the
Related DEL Owner shall, and shall cause each of their respective
Controlled Affiliates to, comply with the other covenants and agreements
contained herein;
(d) form, join or in any way participate in a group, act
inconcert with any other person or entity or otherwise take any action or
actions which would cause it to be deemed a "person" (for purposes of
Section 13(d) of the Exchange Act) with respect to any Voting Securities of
Parent, provided that this Section 3.1 (d) shall not prohibit any such
arrangement solely among the Stockholder and, if applicable, the Related
DEL Owner and/or one or more of their respective Controlled Affiliates or
any Qualifying Persons, provided, further, that the Stockholder and, if
applicable, the Related DEL Owner shall, and shall cause each of their
respective Controlled Affiliates to, comply with the other covenants and
agreements contained herein;
(e) (i) participate in or encourage the formation of any
group which owns, seeks or offers to acquire beneficial ownership of any
securities of Parent or rights to acquire such securities or (ii) which
seeks or offers to affect control of Parent for the purpose of
circumventing any provision of this Agreement, provided that Section
3.1(e)(i) hereof shall not prohibit any such arrangement solely among the
Stockholder and, if applicable, the Related DEL Owner and/or one or more of
their respective Controlled Affiliates or any Qualifying Persons, provided,
further, that the Stockholder and, if applicable, the Related DEL Owner
shall, and shall cause each of their respective Controlled Affiliates to,
comply with the other covenants and agreements contained herein;
(f) (i) solicit, seek or offer to effect, (ii) negotiate with
or provide any information to any party with respect to, (iii) make any
statement or proposal, whether written or oral, either alone or in concert
with others, to the Board, or to any director or to any other legal or
beneficial owner of Voting Securities of Parent with respect to, or (iv)
otherwise make any public announcement, proposal, offer or filing under the
Exchange Act, any similar statute or otherwise, or take action to cause
Parent to make any such announcement, proposal, offer or filing with
respect to: (A) any form of business combination or similar transaction
involving Parent (other than transactions contemplated by this Agreement,
the Purchase Agreements and the other Operative Agreements (as defined in
each of the Purchase Agreements)) or any Subsidiary thereof, including,
without limitation, a merger, tender or exchange offer or liquidation of
Parent's assets, (B) any form of restructuring, recapitalization or similar
transaction with respect to Parent or any Subsidiary thereof, including,
without limitation, a merger, tender or exchange offer involving Parent or
any Subsidiary thereof or liquidation of Parent's assets, (C) any
disposition of all or substantially all of the assets of Parent, (D) any
request to amend, waive or terminate any of the provisions of this Section
3.1 or (E) any proposal or other statement inconsistent with the terms of
this Agreement; provided that nothing contained in this Section 3.1(f)
shall be construed to prevent the Stockholder or, if applicable, the
Related DEL Owner (1) from doing any of the foregoing in his or her
capacity as an employee, officer or director of Parent or any Subsidiary of
Parent (subject to the direction and control of the Board and any officer
of Parent or such Subsidiary to which such Stockholder or, if applicable,
the Related DEL Owner reports in his or her capacity as such an officer or
employee) or (2) acting in his or her capacity as an employee, officer or
director of Parent or any Subsidiary of Parent, from participating in, or
otherwise seeking to affect (x) the outcome of discussions and votes of the
Board with respect to matters coming before it or (y) decisions made or
policies formulated in connection with the management and operation of the
business of Parent, Parent's Subsidiaries and Affiliates, and any divisions
thereof;
(g) take any action challenging the validity or
enforceability of any covenant or agreement contained in this Agreement; or
(h) instigate, advise, assist, encourage or finance (or
assist or arrange financing to or for) any Person in connection with any of
the foregoing.
ARTICLE IV
TRANSFER RESTRICTIONS
Section 4.1 Restrictions on Transfer. During the Covenant
Period:
(a) the Stockholder or, if applicable, the Related DEL Owner
shall not effect or permit any Transfer of any Restricted Stock owned by
such Stockholder pursuant to any tender or exchange offer made pursuant to
Section 14(d) of the Exchange Act, if the Board has recommended that
stockholders of Parent reject such offer, and which recommendation has not
been withdrawn (it being understood that the Stockholder or such Related
DEL Owner, as the case may be, may not tender any Restricted Stock pursuant
to such tender or exchange offer until Parent has publicly taken a position
with respect to such offer or has stated that it will remain neutral or is
unable to take a position with respect thereto), in accordance with Rule
14e-2 of the Exchange Act, any successor regulation or otherwise;
(b) unless the Stockholder or, if applicable, the Related DEL
Owner Transfers Restricted Stock pursuant to the provisions of Rule 144(f),
in a bona fide sale transaction on a foreign securities exchange that would
otherwise comply with paragraph (f) of Rule 144, if such paragraph of such
rule were applicable to such sale or in an underwritten public offering
pursuant to an effective registration statement under the Securities Act,
the Stockholder or Related DEL Owner, as the case may be, shall take all
reasonable actions to assure that no Transfer of Restricted Stock is
effected if, after such Transfer, any Person (together with such Person's
Affiliates and the members of any group to which such Person is a member)
who acquires such Restricted Stock will own, or would reasonably be
expected to own, beneficially or of record, directly or indirectly, Voting
Securities representing 5% or more of the total then outstanding Voting
Securities; and
(c) the Stockholder or, if applicable, the Related DEL Owner
shall not Transfer any Restricted Stock to any Related Party Transferee
unless such Related Party Transferee first agrees in writing to be bound by
the terms of this Agreement as if it were a Stockholder by delivering a
duly executed Additional Party Signature Page to Parent.
Section 4.2 Notice of Sale; Attempted Transfers Void. The
Stockholder or, if applicable, the Related DEL Owner shall give Parent
prompt notice of any Transfer of any Restricted Stock held by the
Stockholder or such Related DEL Owner, as the case may be. Any attempted
Transfer of Restricted Stock in violation of the provisions of this
Agreement shall be null and void and of no force or effect, and the
Restricted Stock subject to such attempted Transfer shall remain subject to
this Agreement. Prior to any such attempted Transfer, the Stockholder
shall furnish, or cause to be furnished, to Parent evidence reasonably
satisfactory to Parent that such Transfer is being made in compliance with
the applicable provisions of this Agreement.
Section 4.3 Legend and Stop Transfer Order.
(a) To assist in effectuating the provisions of this
Agreement, the Stockholder and, if applicable, the Related DEL Owner hereby
consents to the placement of the legend set forth below on all certificates
representing Restricted Stock owned, of record or beneficially, by such
Stockholder or Related DEL Owner, as the case may be, until such Restricted
Stock is no longer subject to the terms of this Agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE (THE 'SHARES') ARE
SUBJECT TO THE PROVISIONS OF A STOCKHOLDER AGREEMENT, DATED AS OF OCTOBER
[!], 1998, BY AND BETWEEN THE COMPANY AND THE PERSON WHOSE NAME APPEARS ON
THE REVERSE HEREOF, WHICH INCLUDES, WITHOUT LIMITATION, VARIOUS ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE SHARES AND THE GRANTING OF CERTAIN VOTING
RIGHTS, A COPY OF WHICH WILL BE FURNISHED BY THE COMPANY TO THE HOLDER
HEREOF UPON WRITTEN REQUEST WITHOUT CHARGE.
(b) The Stockholder and, if applicable, the Related DEL Owner
acknowledges that any Transfer of Restricted Stock, or attempted Transfer,
made other than in compliance with the restrictions stated herein shall not
be recognized by Parent, and that Parent may deliver a corresponding stop-
transfer order to its transfer agent. Subject to the requirements hereof,
at any time after Restricted Stock is no longer subject to the provisions
of this Agreement, upon the written request of the holder thereof, Parent
shall remove the legend set forth in Section 4.3(a) hereof from the
certificate(s) representing such Restricted Stock or replace such
certificate(s) with certificate(s) not bearing such legend
ARTICLE V
VOTING
Section 5.1 Obligation to be Counted for Quorum. During the
Covenant Period, the Stockholder and, if applicable, the Related DEL Owner
(with respect to any Voting Securities for which such Related DEL Owner has
voting power) shall be (and shall cause each Controlled Affiliate thereof
that holds Voting Securities to be) present, in person or by proxy (and
without further action, Parent and the Stockholder and, if applicable, such
Related DEL Owner hereby agree that the Stockholder and/or such Related DEL
Owner, as the case may be, shall be deemed to be present), at all meetings
of stockholders of Parent at which one or more of the matters described in
Section 5.2 or 5.3 hereof is to be submitted to a vote of the stockholders
of Parent so that all Voting Securities owned, beneficially or of record,
by the Stockholder or such Related DEL Owner, as the case may be (or any
such Controlled Affiliates), may be counted for purposes of determining the
presence of a quorum at such meetings; provided, that with respect to
meetings at which any action is proposed to be taken regarding matters
other than for which the irrevocable proxy granted pursuant to Section 5.2
or 5.3 hereof is applicable, the Stockholder or such related DEL Owner, as
the case may be, shall be deemed not to be in breach of this Section 5.1
with respect to any such meeting if (a) Parent shall fail to give the
Stockholder or such related DEL Owner, as the case may be, timely and
proper notice of such meeting together with (i) a form of proxy appointing
one or more persons designated by the Board to act as proxy for the
Stockholder or such related DEL Owner, as the case may be, and (ii)
instructions for the execution of such proxy by the Stockholder or such
Related DEL Owner, as the case may be, and return of such proxy by ordinary
mail, or (b) if the Stockholder or such Related DEL Owner, as the case may
be, executes and returns such proxy in accordance with such instructions,
the person or persons appointed to act for the Stockholder or such Related
DEL Owner, as the case may be, in such proxy shall fail for any reason to
attend such meeting on behalf of the Stockholder or such related DEL Owner,
as the case may be, and be counted for purposes of determining the presence
of a quorum.
Section 5.2 Maintenance of Board Composition. During the
Covenant Period, the Stockholder and, if applicable, the Related DEL Owner
(with respect to any Voting Securities for which such Related DEL Owner has
voting power) agrees to take (and to cause each Controlled Affiliate
thereof that holds Voting Securities to take) any and all Necessary Action
(as defined below) so as to cause (and in accordance with Section 2-507 of
the General Corporation Law of Maryland hereby grants to the individual
serving from time to time as the corporate secretary of Parent an
irrevocable proxy during the Covenant Period to vote any shares of Voting
Securities held by the Stockholder or such Related DEL Owner, as the case
may be, for the purpose of causing) the composition of the Board to be as
set forth in Article X of the Amended and Restated Bylaws of Parent
attached hereto as Annex A (including, without limitation, voting at any
meeting of the stockholders of Parent in favor of any nominee for a
director of Parent proposed by any Nominating Committee). "Necessary
Action" for the purposes hereof means any and all actions within the
Stockholder's or such Related DEL Owner's, as the case may be (or such
Controlled Affiliate's), power and authority as a stockholder of Parent or,
if applicable, as a director or officer of Parent, subject to any
applicable fiduciary or legal limitations, which actions may include
(subject to the foregoing limitations): (a) providing written consents
with respect to the Voting Securities for which such Stockholder or such
Related DEL Owner, as the case may be (or such Controlled Affiliate), has
voting power, (b) calling special meetings of the stockholders of Parent
or, if applicable, the Board, (c) waiving notice with respect to such
meetings, (d) attending meetings of stockholders (either in person or by
proxy) or, if applicable, the Board (either in person or by conference
telephone), (e) acting to fill vacancies in directorships on the Board and
(f) voting in favor of any required amendments to the Articles of
Incorporation or Bylaws of Parent; provided that the Stockholder or such
Related DEL Owner, as the case may be, shall be deemed not to be in breach
of any requirement of this Section 5.2 with respect to attending or voting
at any meeting of the stockholders of Parent if (x) Parent shall fail to
give the Stockholder or such Related DEL Owner, as the case may be, timely
and proper notice of such meeting together with (1) if the proxy described
above is not applicable, a form of proxy appointing one or more persons
designated by the Board to act as proxy for the Stockholder or such Related
DEL Owner, as the case may be, and (2) instructions for the execution of
such proxy by the Stockholder or such Related DEL Owner, as the case may
be, and return of such proxy by ordinary mail, or (y) if the Stockholder or
such Related DEL Owner, as the case may be, executes and returns such proxy
in accordance with such instructions, the person or persons appointed to
act for the Stockholder or such Related DEL Owner, as the case may be, in
such proxy shall fail for any reason to attend such meeting or exercise the
voting power granted pursuant to such proxy.
Section 5.3 Voting by the Stockholder. During the Covenant
Period, the Stockholder and, if applicable, the Related DEL Owner (with
respect to any Voting Securities for which such Related DEL owner has
voting power) agrees to vote (and to cause each Controlled Affiliate
thereof that holds Voting Securities to vote) all Voting Securities with
respect to which the Stockholder or such Related DEL Owner, as the case may
be (or such Controlled Affiliate), has voting power (and in accordance with
Section 2-507 of the General Corporation Law of Maryland hereby grants to
the individual serving from time to time as the corporate secretary of
Parent an irrevocable proxy during the Covenant Period to vote any share of
Voting Securities held by the Stockholder or such Related DEL Owner, as the
case may be) in accordance with the recommendation or direction of the
Board on all matters (a) submitted to the vote of stockholders of Parent
which have been proposed by any stockholder or stockholders, as to which
the Board has recommended against approving (and such recommendation has
not been withdrawn or changed to a recommendation for approval) or
(b) relating to any merger or consolidation involving Parent, any sale of
all or substantially all of Parent's assets or any similar transactions, as
to which the Board has recommended against approving (and such
recommendation has not been withdrawn or changed to a recommendation for
approval).
ARTICLE VI
MATTERS RELATING TO THE
REGISTRATION RIGHTS AGREEMENT
Section 6.1 Registration Rights. The Stockholder and, if
applicable, the Related DEL Owner hereby agrees that, during the Covenant
Period, if Parent proposes to file a registration statement under the
Securities Act with respect to an offering for its own account or for the
account of others of any class of Voting Security (other than a
registration statement (i) on Form S-4 or S-8 (or any successor form), or
(ii) filed in connection with an exchange offer or an offering of
securities solely to Parent's then existing stockholders), then, at the
sole discretion of the Board, Parent may (unless Parent is registering JLW
Registrable Securities, in which case Parent shall) offer holders of DEL
Registrable Securities the opportunity to register such DEL Registrable
Securities in such offering, in accordance with the terms of such offering
by in each case giving written notice of such proposed filing to holders of
DEL Registrable Securities at least 20 days before the anticipated filing
date.
Section 6.2 Notification; Reduction.
(a) The holder of Registrable Securities shall notify Parent
promptly (and in no event later than 10 days after notice) of his, her or
its desire to include such Registrable Securities in the registration
statement. In the event that any registration effected pursuant to this
Article VI shall involve, in whole or in part, a firm commitment
underwritten public offering of Common Stock, and the managing underwriter
of such offering shall be of the opinion that the inclusion of the number
of JLW Registrable Securities and the DEL Registrable Securities sought to
be included therein would materially and adversely affect the distribution
of the securities to be sold, the total number of shares of Common Stock
allocable to holders of JLW Registrable Securities and holders of DEL
Registrable Securities which such underwriter indicates may be included
therein shall be allocated among the holders of JLW Registrable Securities,
as a group, and the holders of DEL Registrable Securities, as a group, on
the basis of the ratio of the aggregate number of JLW Registrable
Securities or DEL Registrable Securities, as owned by such group on the
Closing Date, as the case may be, to the aggregate number of JLW
Registrable Securities and DEL Registrable Securities owned by both such
groups as of the Closing Date; provided that, if either such group does
not use its entire allocation, the remaining shares allocated to such group
may be used by the other group. Any such shares allocated to the holders
of DEL Registrable Securities shall be apportioned among such holders on a
pro rata basis or any other method upon which the Parent Employee
Directors may agree. If the number of DEL Registrable Securities requested
to be included in such registration statement exceeds the number of shares
allocated to the holders of DEL Registrable Securities, as a group, the
available shares shall be apportioned among the members of such group on a
pro rata basis (on the basis of the number of DEL Registrable Securities
owned by the applicable holders or any other method upon which the Parent
Employee Directors may agree).
(b) Notwithstanding anything to the contrary contained in
this Article VI, Parent may withdraw any registration statement referred to
in this Article VI at any time for any reason without thereby incurring any
liability to any other party hereto.
Section 6.3 Registration Procedures.
(a) If and when any Registrable Securities are to be
registered pursuant to this Article VI, Parent will as expediently as
possible:
(i) furnish to the holder of Registrable Securities
such number of copies of the registration statement and the prospectus
included therein (including each preliminary prospectus), including any
amendments and supplements thereto, and other documents as such Person
reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such registration
statement;
(ii) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the holder of
Registrable Securities or, in the case of an underwritten public offering,
the managing underwriter reasonably shall request, provided, however, that
Parent 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;
(iii) use its best efforts to list the Registrable
Securities covered by such registration statement with any securities
exchange on which the Common Stock of Parent is then listed;
(iv) immediately notify the holder of Registrable
Securities 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 the holder of Registrable Securities
shall immediately cease delivery of such prospectus and Parent will, at the
request of such holder of Registrable Securities, prepare and furnish to
such holder of Registrable Securities 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 Registrable
Securities, such prospectus, as amended or supplemented, will comply with
the law;
(v) as necessary to satisfy applicable due diligence
requirements, make available for inspection by the holder of Registrable
Securities and any attorney, accountant or other agent retained by such
holder of Registrable Securities, subject to reasonable agreements
regarding confidentiality, financial and other records, pertinent corporate
documents and properties of Parent, and cause Parent's officers, directors
and employees to supply all information reasonably requested by such holder
of Registrable Securities, attorney, accountant or agent, in connection
with such registration statement; and
(vi) issue to any underwriter to which any holder of
Registrable Securities may sell such Registrable Securities in connection
with any such registrations (and to any direct or indirect transferee of
any such underwriter or to such holder of Registrable Securities, if such
registered offering is not underwritten) certificates evidencing such
Registrable Securities without any legend restricting the transferability
of the shares of the holder of Registrable Securities.
(b) In connection with each registration hereunder, the
holder of Registrable Securities will furnish to Parent in writing such
information with respect to himself, herself or itself and the proposed
distribution by such holder as reasonably shall be necessary in order to
assure compliance with federal and applicable state securities laws.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, Parent shall give the holder of Registrable Securities and
his, her or its counsel and accountants, the opportunity to review such
registration statement, each prospectus included therein or filed with the
SEC, and each amendment thereof or supplement thereto.
(d) In connection with each registration pursuant to this
Article VI covering an underwritten public offering, Parent and the holder
of Registrable Securities agree to enter into a written agreement with the
managing underwriter in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of Parent's size and investment stature;
provided, however, that the holder of Registrable Securities shall not be
required to make any representations, warranties or covenants relating to
Parent and that Parent shall make such representations, warranties and
covenants.
Section 6.4 Expenses. (a) All expenses incurred by Parent in
complying with this Article VI, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for Parent, 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 all holders of DEL Registrable Securities who
are participating in such offering, but excluding any Selling Expenses, are
called "Registration Expenses." All underwriting discounts and selling
commissions applicable to the sale of Registrable Securities are called
"Selling Expenses".
(b) Parent will pay all Registration Expenses in accordance
with each registration statement under this Article VI. All Selling
Expenses in connection with each registration statement under this Article
VI shall be borne by the participating holders in proportion to the number
of shares sold by each, or by such participating holders other than Parent
(except to the extent Parent shall be a seller) as they may otherwise
agree.
Section 6.5 Indemnification and Contribution. (a) In the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant to this Article VI, Parent will indemnify and hold
harmless the holder of Registrable Securities and each other person, if
any, who controls such holder of Registrable Securities 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 DEL Registrable
Securities of such holder of Registrable Securities were registered under
the Securities Act pursuant to this Article VI, 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 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 Parent
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 pertaining to such holder of
Registrable Securities or any such controlling person furnished to Parent
by such holder of Registrable Securities or any such controlling person in
writing specifically for use in such registration statement or prospectus,
and provided further that, in the case of an offering that is not a firm
commitment underwritten public offering, 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 holder of Registrable Securities if the
person asserting any such loss, claim, damage or liability who purchased
the Registrable Securities 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 Registrable Securities 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 Registrable
Securities under the Securities Act pursuant to this Article VI, the holder
of Registrable Securities will indemnify and hold harmless Parent, each
person, if any, who controls Parent within the meaning of the Securities
Act, each officer of Parent who signs the registration statement, each
director of Parent, 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 Parent 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 Registrable
Securities was registered under the Securities Act pursuant to this Article
VI, 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 Parent 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 holder of Registrable Securities will be liable hereunder in any such
case if and only to the extent that any such loss, claim, damage, liability
or expense 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 holder of Registrable
Securities furnished in writing to Parent by such holder of Registrable
Securities specifically for use in such registration statement or
prospectus, and provided, further, however, that any liability of the
holder of Registrable Securities hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the shares sold
by such holder of Registrable Securities 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 received by such holder of
Registrable Securities from the sale of Registrable Securities covered by
such registration statement, net of all Selling Expenses actually borne by
such holder of Registrable Securities.
(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
Article VI and shall relieve it only for any liability which it may have to
such indemnified party under this Article VI 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 Article VI 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 separate counsel (limited to one for all indemnified parties) 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 Registrable Securities exercising rights under this
Agreement, or any controlling person of any such holder, makes a claim for
indemnification pursuant to this Section 6.5 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 or appeal) that such indemnification may not be enforced
in such case notwithstanding the fact that this Section 6.5 provides for
indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any such holder or any such controlling
person in circumstances for which indemnification is provided under this
Section 6.5, then, and in each such case, Parent 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 Registrable Securities
offered by such holder pursuant to the registration statement bears to the
public offering price of all securities offered by all sellers (including
Parent) pursuant to such registration statement, and that Parent 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 such Registrable Securities offered
by him, her or it pursuant to such registration statement net of all
Selling Expenses actually borne by such holder of Registrable Securities;
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.
ARTICLE VII
GENERAL
Section 7.1Specific Enforcement; Other Remedies. Each
party hereto (other than Parent) acknowledges and agrees that Parent would
be irreparably damaged in the event any of the provisions of this Agreement
were not performed by such party in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that Parent shall be
entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States (or any state thereof)
or country having jurisdiction, in addition to any other remedy to which
Parent may be entitled at law or equity.
Section 7.2Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby
(unless such a construction is unreasonable).
Section 7.3Headings. The Article and Section headings
contained herein are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 7.4Notices. 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), in each case addressed to the party to be notified, in the case
of Parent, at LaSalle Partners Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief Financial Officer and, in the case of
any other party hereto, at the address set forth on the signature page
hereto or any Additional Party Signature Page, as applicable, or such other
address of a party as such party shall have specified by prior written
notice to the other party in accordance with this Section 7.4. Such
notices shall be deemed given: at the time personally delivered, if
delivered by hand with receipt acknowledged; at the time received if sent
certified or registered mail; 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.
Section 7.5Applicable Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Maryland, without giving effect to the conflicts-of-law provisions thereof.
Section 7.6 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 ▇▇▇▇ (collectively, the
"Illinois Courts"), preserving, however, all rights of removal to such
federal court under 28 U.S.C. ' 1441, in connection with all disputes
arising out of or in connection with this Agreement and agrees not to
commence any litigation relating thereto except in such courts; provided
that if the aforementioned 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. ' 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 in any other court or jurisdiction.
Section 7.7Service of Process. Each party irrevocably
consents to the service of process outside the territorial jurisdiction of
the courts referred to in Section 7.6 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 herein; provided, that 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.
Section 7.8 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, EXCEPT
WITH THE WRITTEN CONSENT OF EACH OF THE PARTIES, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 7.9Entire Agreement. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard
to the subject matter hereof and supercedes the Registration Rights
Agreement to the extent that the Stockholder had any rights thereunder.
Section 7.10 Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors, legal representatives and assigns, but this Agreement (or any
of the rights hereunder) may not be assigned by any party without the
written consent of the other party.
Section 7.11 Amendment and Modification. This Agreement
may not be amended, modified or supplemented except by an agreement in
writing signed by both of the parties hereto.
Section 7.12 Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Stockholder and Parent have caused this
Agreement to be duly executed as of the day and year first above written.
LASALLE PARTNERS
INCORPORATED
By:
Name:
Title:
STOCKHOLDER:
Name:
Address:
Telephone:
Fax:
RELATED DEL OWNER (if applicable)
Name:
Address:
Telephone:
Fax:
EXHIBIT A
ADDITIONAL PARTY SIGNATURE PAGE
IN WITNESS WHEREOF, the Stockholder, if applicable, the Related
DEL Owner and Parent have caused this Agreement to be duly executed as of
the day and year first above written.
LASALLE PARTNERS
INCORPORATED
By:
Name:
Title:
STOCKHOLDER:
Name:
Address:
Telephone:
Fax:
RELATED DEL OWNER (if applicable)
Name:
Address:
Telephone:
Fax: