Exhibit 10.08
================================================================================
DEL-LPL LIMITED PARTNERSHIP
AND DEL-LPAML LIMITED PARTNERSHIP,
LASALLE PARTNERS LIMITED PARTNERSHIP
AND LA SALLE PARTNERS MANAGEMENT LIMITED PARTNERSHIP,
THE GALBREATH COMPANY AND
THE GALBREATH COMPANY OF CALIFORNIA, INC.
GALBREATH HOLDING LLC,
and
THE STOCKHOLDERS OF THE GALBREATH COMPANY
AND GALBREATH COMPANY OF CALIFORNIA, INC.
________________________________________
CONTRIBUTION AND EXCHANGE AGREEMENT
________________________________________
Dated as of April 22, 1997
CONTRIBUTION AND EXCHANGE AGREEMENT
Table of Contents
-----------------
Page
----
1. DEFINITIONS........................................................... 3
2. THE TRANSACTION....................................................... 9
2.1 Contribution and Exchange....................................... 9
2.2 Closing......................................................... 10
2.3 Closing Deliveries.............................................. 10
3. REPRESENTATIONS AND WARRANTIES OF THE DEL
PARTNERSHIPS AND THE LA SALLE PARTNERSHIPS............................ 14
3.1 Organization and Standing....................................... 14
3.2 Capitalization.................................................. 17
3.3 Financial Statements............................................ 18
3.4 No Undisclosed Liabilities...................................... 19
3.5 Absence of Certain Changes, Events or
Conditions...................................................... 20
3.6 Litigation, Etc................................................. 20
3.7 Trademarks, Etc................................................. 21
3.8 Compliance...................................................... 22
3.9 Labor Matters................................................... 23
3.10 No Conflict With Other Documents................................ 23
3.11 Authority....................................................... 24
3.12 Contracts....................................................... 25
3.13 Clients......................................................... 27
3.14 Tax Matters..................................................... 28
3.15 Title to Properties; Absence of Liens and
Encumbrances, Etc............................................... 30
3.16 Pension and Employee Benefit Plans.............................. 32
3.17 Insurance....................................................... 38
3.18 No Pending Transactions......................................... 39
3.19 Disclosure...................................................... 39
3.20 Transactions with Affiliates.................................... 39
3.21 Environmental Matters........................................... 40
3.22 Investment Intent............................................... 46
4. REPRESENTATIONS AND WARRANTIES OF THE GALBREATH
COMPANIES AND G-LLC................................................... 47
4.1 Organization and Standing; Subsidiaries......................... 47
4.2 Capitalization of the Galbreath Companies....................... 49
i
Page
----
4.3 Financial Statements............................................. 51
4.4 No Undisclosed Liabilities....................................... 52
4.5 Absence of Certain Changes, Events or
Conditions....................................................... 52
4.6 Fixed Assets; Real Estate........................................ 53
4.7 Litigation, Etc.................................................. 53
4.8 Trademarks, Etc.................................................. 54
4.9 Compliance....................................................... 55
4.10 Labor Matters.................................................... 55
4.11 No Conflict With Other Documents................................. 56
4.12 Authority........................................................ 57
4.13 G-LLC Authorization.............................................. 57
4.14 Contracts........................................................ 58
4.15 Clients.......................................................... 59
4.16 Tax Matters...................................................... 60
4.17 Title to Properties; Absence of Liens and
Encumbrances, Etc................................................ 64
4.18 Pension and Employee Benefit Plans............................... 65
4.19 Insurance........................................................ 73
4.20 Environmental Matters............................................ 74
4.21 No Pending Transactions.......................................... 77
4.22 Disclosure....................................................... 78
4.23 Transactions with Affiliates..................................... 78
4.24 Investment Intent................................................ 79
4.25 Consent to Other Matters......................................... 80
5. PRECLOSING COVENANTS OF THE DEL PARTNERSHIPS AND
LA SALLE PARTNERSHIPS.................................................. 80
5.1 Conduct of Business.............................................. 80
5.2 Amendment of La Salle Partnership Agreements..................... 82
5.3 Information...................................................... 82
5.4 Consents......................................................... 83
5.5 Employee Matters................................................. 83
6. PRECLOSING COVENANTS OF THE GALBREATH COMPANIES
AND THE STOCKHOLDERS................................................... 83
6.1 Conduct of Business.............................................. 84
6.2 Information...................................................... 86
6.3 Consents......................................................... 87
6.4 Corporate Transactions........................................... 87
6.5 Employee Matters................................................. 88
6.6 Restructuring.................................................... 89
ii
Page
----
7. CONDITIONS TO THE LA SALLE PARTNERSHIPS'
OBLIGATIONS............................................................ 93
7.1 Representations, Warranties and Covenants........................ 94
7.2 Binding Court Order.............................................. 94
8. CONDITIONS TO THE GALBREATH COMPANIES', G-LLC'S
AND THE STOCKHOLDERS' OBLIGATIONS...................................... 95
8.1 Representations, Warranties and Covenants........................ 95
8.2 No Binding Court Order........................................... 96
9. POST-CLOSING COVENANTS................................................. 96
9.1 Tax Matters...................................................... 96
9.2 Interest in Mapley............................................... 98
9.3 Management Committee; Board of Directors......................... 99
10. INDEMNIFICATION........................................................ 100
10.1 Indemnification by the DEL Partnership
and La Salle Partnerships........................................ 100
10.2 Indemnification by the Stockholders.............................. 101
10.3 Limitations on Indemnification................................... 102
10.4 Notice and Defense............................................... 103
10.5 Insurance........................................................ 105
11. PUBLIC ANNOUNCEMENTS................................................... 106
12. SURVIVAL; NO RIGHT OF CONTRIBUTION POST CLOSING........................ 106
13. BROKERS AND ADVISORS................................................... 107
14. EXPENSES; DAMAGES...................................................... 108
15. NOTICES................................................................ 109
16. REPRESENTATIVE......................................................... 111
17. CONSENT TO JURISDICTION AND SERVICE.................................... 113
18. TERMINATION............................................................ 114
19. ENTIRE AGREEMENT....................................................... 114
iii
Page
----
20. GENERAL................................................................ 115
iv
Page
---- EXHIBITS
Exhibit A -- Exchange of Capital Stock for Units
Exhibit B -- Amendment to Agreement of Limited Partnership of LPML
Exhibit C -- Amendment to Agreement of Limited Partnership of LPL
Exhibit D -- Closing Balance Sheet
Exhibit E -- Liquidity Agreement
Exhibit F -- Galbreath Management and LaSalle Management
Exhibit G -- Stockholders' Holdings of the Galbreath
Companies' Capital Stock
Exhibit H -- Lizanne Galbreath Employment Agreement
Exhibit I -- Registration Rights Agreement
Exhibit J -- License Agreement
Exhibit K -- Consent of The Galbreath Companies
v
CONTRIBUTION AND EXCHANGE AGREEMENT
CONTRIBUTION AND EXCHANGE AGREEMENT (this "Agreement") dated as of April 22, 1997, by and among DEL-LPL Limited Partnership, a Delaware limited partnership ("DEL-LPL"), and DEL-LPAML Limited Partnership, a Delaware limited partnership ("DEL-LPAML" and together with DEL-LPL, the "DEL Partnerships"), La Salle Partners Limited Partnership, a Delaware limited partnership ("LPL"), La Salle Partners Management Limited Partnership, a Delaware limited partnership ("LPML" and together with LPL, the "La Salle Partnerships"). The Galbreath Company, an Ohio corporation ("Galbreath Ohio"), and The Galbreath Company of California, Inc., a California corporation ("Galbreath California" and together with Galbreath Ohio, the "Galbreath Companies"), Galbreath Holdings, LLC, a Delaware limited liability company ("G-LLC"), and Lizanne Galbreath ("LG") and the other stockholders of the Galbreath Companies (the "Stockholders").
Introduction
The Stockholders are contributing to G-LLC all of the outstanding Galbreath Capital Stock (as defined below). At the Closing (as defined below) G-LLC will contribute the Galbreath Capital Stock to LPL and LPML, respectively, in
exchange for Units in LPL and LPML in the amounts set forth on Exhibit A (the "Exchange").
In connection with and as a condition to the contribution and exchange, (a) G-LLC is entering into the LPL and LPML Partnerships by execution of the Fourth Amendments to the Amended and Restated Agreements of Limited Partnerships of each of LPL and LPML in the forms of Exhibits B and C, (b) G-LLC and the DEL Partnerships are entering into a Put Agreement in the form of Exhibit D pursuant to which G-LLC has certain rights to put its Units to the DEL Partnerships, (c) the La Salle Partnerships and LG are entering into an Employment Agreement in the form of Exhibit G, (d) The DEL Partnerships, LP-Inc. (as defined below), the La Salle Partnerships and G-LLC are entering into a Registration Rights Agreement in the form of Exhibit H and (e) G-LLC and the La Salle Partnerships are entering into a License Agreement permitting the use of the Galbreath name in the form of Exhibit I.
Immediately prior to the Closing, the Galbreath Companies will grant to certain employees the right to receive stock in the Galbreath Companies, which rights will be assumed by the La Salle Partnerships and will be satisfied by the issuance of Units or stock of the successor corporation to the La Salle Partnerships. In the event that Units
2
are issued, the employees will contribute those units immediately upon receipt to a new limited liability company to be formed by the Galbreath Companies prior to the Closing.
The DEL Partnerships, the La Salle Partnerships, the Galbreath Companies, G-LLC and the Stockholders wish to enter into this Agreement setting for the terms and conditions of the foregoing transactions.
In consideration of the foregoing and of the covenants, agreements, representations and warranties hereinafter contained, the DEL Partnerships, the La Salle Partnerships, the Galbreath Companies, G-LLC and the Stockholders hereby agree as follows:
1. DEFINITIONS.
1.1 An "Affiliate" shall have the meaning given that term under the rules and regulations promulgated pursuant to the Securities Act.
1.2 "Amendments to the La Salle Partnership Agreements" shall mean the documents attached hereto as Exhibit B and C.
1.3 "CERCLA" shall have the meaning given to that term in Section 3.21(a)(iv).
1.4 "CERCLIS" shall have the meaning given to that term in Section 3.21(d).
3
1.5 "Closing" shall have the meaning given to that term in Section 2.2.
1.6 "Closing Balance Sheet" shall mean the unaudited pro forma balance sheet of the Galbreath Companies as of the Closing, attached hereto as Exhibit D.
1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.8 "DEL-LPL" shall mean DEL-LPL Limited Partnership, a Delaware limited partnership.
1.9 "DEL-LPMAL" shall mean DEL-LPAML Limited Partnership, a Delaware limited partnership.
1.10 "DEL Partnerships" shall mean DEL-LPL and DEL-LPAML.
1.11 "DEL Partnership Agreements" shall mean the Third Amended and Restated Agreements of Limited Partnership of DEL-LPL and DEL-LPAML as amended by Amendment dated January 1, 1994, Second Amendment dated November 30, 1994, and Third Amendment dated as of December 1, 1996.
1.12 "Environmental Laws" shall have the meaning given to that term in Section 3.21(a)(iv).
1.13 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended.
1.14 "Exchange" shall have the meaning given to that term in Section 2.1.
4
1.15 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
1.16 "Exchange Agreement" shall mean that certain agreement of even date herewith by and among the DEL Partnerships and Galbreath LPL Holdings LLC.
1.17 "Excluded Liabilities" shall have the meaning given that term in Section 6.6(c).
1.18 "Excluded Property" shall have the meaning given that term in Section 6.6(a).
1.19 "Expiration Date" shall have the meaning given that term in Section 12.
1.20 "Galbreath California" shall mean Galbreath Company of California, Inc., a California corporation.
1.21 "Galbreath California Common Stock" shall have the meaning set forth in Section 4.2.
1.22 "Galbreath California Non-Voting Common Stock" shall have the meaning set forth in Section 4.2.
1.23 "Galbreath Capital Stock" shall have the meaning set forth in Section 4.2.
1.24 "Galbreath Companies" shall mean Galbreath Ohio and Galbreath California.
1.25 "Galbreath Companies' Documents" shall have the meaning given to that term in Section 7.2(d).
5
1.26 "Galbreath Disclosure Schedule" shall have the meaning given to that term in Section 4.1.
1.27 "Galbreath Financial Statements" shall have the meaning given to that term in Section 4.3.
1.28 "Galbreath Management" shall mean the individuals listed on Exhibit F.
1.29 "Galbreath Material Adverse Effect" shall have the meaning give to that term in Section 4.1.
1.30 "Galbreath Ohio" shall mean The Galbreath Company, an Ohio corporation.
1.31 "Galbreath Ohio Common Stock" shall have the meaning given to that term in Section 4.2.
1.32 "Galbreath Ohio Non-Voting Common Stock" shall have the meaning given to that term in Section 4.2.
1.33 "Galbreath Plans" shall have the meaning given to that term in Section 4.18(a).
1.34 "Galbreath Properties" shall have the meaning given to that term in Section 4.20(a).
1.35 "Galbreath Qualified Plans" shall have the meaning given to that term in Section 4.18(b).
1.36 "Galbreath Subsidiaries" shall have the meaning given to that term in Section 4.1.
1.37 "La Salle Disclosure Schedule" shall have the meaning given to that term in Section 3.1.
6
1.38 "La Salle Documents" shall have the meaning given to that term in Section 8.2(e).
1.39 "La Salle Financial Statements" shall have the meaning given to that term in Section 3.3.
1.40 "La Salle Management" shall have those persons constituting the La Salle Management Committee on the date of this Agreement. Such persons are listed on Exhibit F hereto.
1.41 "La Salle Material Adverse Effect" shall have the meaning given to that term in Section 3.1.
1.42 "La Salle Partnerships" shall mean LPL and LPML.
1.43 "La Salle Partnership Agreements" shall mean the Amended and Restated Agreements of Limited Partnership of LPL and LPML, which, prior to Closing, shall be amended by the Amendments thereto, attached hereto as Exhibits B and C, respectively.
1.44 "La Salle Plans" shall have the meaning given that term in Section 3.16(a).
1.45 "La Salle Properties" shall have the meaning given to that term in Section 3.21(a)(i).
1.46 "La Salle Qualified Plans" shall have the meaning given to that term in Section 3.16(b).
7
1.47 "La Salle Subsidiaries" shall have the meaning given to that term in Section 3.1.
1.48 "Liquidity Agreement" shall mean the agreement attached hereto as Exhibit E.
1.49 "LP-Inc." shall mean La Salle Partners Incorporated, a Maryland corporation.
1.50 "LPL" shall mean La Salle Partners Limited Partnership, a Delaware limited partnership.
1.51 "LPML" shall mean La Salle Partners Management Limited Partnership, a Delaware limited partnership.
1.52 "Materials of Environmental Concern" shall have the meaning given to that term in Section 3.21(a)(iii).
1.53 "Release" shall have the meaning given to that term in Section 3.21(a)(ii).
1.54 "Representative" shall have the meaning given to that term in Section 16.
1.55 "Restructuring" shall have the meaning given to that term in Section 6.6.
1.56 "Securities Act" shall mean the Securities Act of 1933, as amended.
1.57 "Transaction Documents" shall include this Agreement, the Liquidity Agreement, the License Agreement, the Registration Rights Agreement, the Exchange Agreement,
8
the La Salle Partnership Agreements and the Employment Agreements between the La Salle Partnerships and Lizanne Galbreath.
1.58 "Taxes" shall have the meaning given to that term in Section 3.14.
1.59 "Units" shall mean limited partnership units in LPL or LPML, as that case may be, as more fully described in the La Salle Limited Partnership Agreements.
2. THE TRANSACTION.
Subject to the terms and conditions of this Agreement, the DEL Partnerships, the La Salle Partnerships, the Galbreath Companies, G-LLC and the Stockholders agree to effect the following transactions at the Closing:
2.1 Contribution and Exchange. Prior to the Closing, the Stockholders will contribute to G-LLC all of the Galbreath Capital Stock held by them. At the Closing, the Stockholders will cause G-LLC to contribute all of the Galbreath Capital Stock owned by it to LPL and LPML in exchange for Units as set forth on Exhibit A (the "Exchange"). In order to effect the Exchange, (i) G-LLC will deliver to LPL and LPML, respectively, at the Closing certificates evidencing the shares of Galbreath Capital Stock owned by them, duly endorsed or accompanied by duly
9
executed stock powers, and (ii) G-LLC shall execute the La Salle Partnership Agreements.
2.2 Closing.
-------
The closing (the "Closing") of the transactions contemplated by this Agreement shall take place at the offices of the La Salle Partnerships at 200 E. Randolph Drive, Chicago, Illinois, beginning at 10:00 a.m. Chicago time, on April 22, 1997, or at such other time and place as may be agreed upon by the La Salle Partnerships and the Stockholders.
2.3 Closing Deliveries.
------------------
(a) Documents to be Delivered by the Stockholders. At the Closing, G-LLC and the Stockholders shall deliver to the La Salle Partnerships the following documents:
(i) A certificate or certificates, dated the date of the
Closing, in such detail as the La Salle Partnerships may reasonably
request, signed by the Chief Financial Officer or the Chief Executive
Officer of the Galbreath Companies certifying that the representations and
warranties of the Galbreath Companies contained in Section 4 of this
Agreement are true and correct in all material respects at and
10
as of the date of the Closing, that the Galbreath Companies have performed
all obligations, and complied with all covenants in all material respects
required by this Agreement to be performed or complied with by them prior
to the Closing, and that the Closing Balance Sheet confirms performance of
the Galbreath Companies' covenant to deliver at the Closing at least
$1,200,000, of stockholders' equity, cash of at least $750,000, and no
liability for borrowed money (subject to the adjustments footnoted on such
balance sheet).
(ii) Opinions, dated the date of the Closing, of Howard,
Darby & Levin, and Baker & Hostetler LLP, special counsel to the Galbreath
Companies and the Stockholders, in form and substance reasonably
satisfactory to the La Salle Partnerships.
(iii) The Employment Agreement in the form of Exhibit H
duly executed by LG.
(iv) The License Agreement in the form of Exhibit J duly
executed by G-LLC.
(v) The certificates representing the Galbreath Capital
Stock, duly endorsed for transfer.
11
(vi) Evidence reasonably satisfactory to the La Salle
Partnerships of the transfer to the Galbreath Companies of the partnership
interest in Galbreath Middle-Atlantic Partnership owned by Tricor, Inc.,
free and clear of any liens and encumbrances.
(vii) Evidence reasonably satisfactory to the La Salle
Partnerships of the repayment or extinguishing of all outstanding debt of
the Galbreath Companies.
(viii) The La Salle Partnership Agreements, joined in by G-LLC.
(ix) The Exchange Agreement.
(b) Documents to be Delivered by the La Salle Partnerships. At the Closing, the La Salle Partnerships shall deliver to the Representative the following documents:
(i) A certificate or certificates, dated the date of the
Closing, in such detail as the Representative may reasonably request,
signed by the Chief Operating Officer or the Chief Financial Officer of the
La Salle Partnerships, certifying that the representations and warranties
of the La Salle Partnerships contained
12
in Section 3 of this Agreement are true and correct in all material
respects at and as of the date of the Closing, and that the La Salle
Partnerships have performed all obligations, and complied with all
covenants, in all material respects required by this Agreement to be
performed or complied with by them prior to the Closing.
(ii) An opinion, dated the date of the Closing, of Piper &
Marbury L.L.P., special counsel to the La Salle Partnerships, in form and
substance reasonably satisfactory to the Representative.
(iii) The Amendments to the La Salle Partnership
Agreements in the forms of Exhibits B and C duly executed as required for
effectiveness.
(iv) The Employment Agreement in the form of Exhibit H
duly executed by the La Salle Partnerships.
(v) The License Agreement in the form of Exhibit J duly
executed by the La Salle Partnerships.
13
(vi) The Registration Rights Agreement in the form of
Exhibit I duly executed by the DEL Partnerships, LP-Inc. and the La Salle
Partnerships.
3. REPRESENTATIONS AND WARRANTIES OF THE DEL PARTNERSHIPS AND THE
LA SALLE PARTNERSHIPS.
The DEL Partnerships and the La Salle Partnerships hereby jointly and severally represent and warrant to the Galbreath Companies and the Stockholders, as follows:
3.1 Organization and Standing.
-------------------------
Each of the DEL Partnerships and the La Salle Partnerships is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware and has full partnership power to carry on its business as it is now being conducted and to own or hold under lease the properties and assets it now owns or holds under lease. LaSalle Partne ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.