FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment") is
entered into by and between CarrAmerica Realty Corporation ("Seller") and
FrontLine Capital Group (formerly known as Reckson Services Industries, Inc.)
("Buyer") as of April 29, 2000.
RECITALS:
WHEREAS, Seller and Buyer entered into a Stock Purchase Agreement dated
as of January 20, 2000 (such agreement as heretofore, hereby and hereinafter
amended, the "Stock Purchase Agreement") pursuant to which Seller agreed to
sell shares of common stock of HQ Global Workplaces, Inc. (the "Company")
owned by it to Buyer on the terms set forth therein;
WHEREAS, the parties hereto wish to make certain amendments to the Stock
Purchase Agreement; and
WHEREAS, capitalized terms not otherwise defined herein shall have the
meanings set forth in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth herein, the parties, intending to be
legally bound, agree as follows:
1. The second sentence of Section 4(c)(ii) of the Stock Purchase
Agreement is hereby deleted in its entirety and replaced by the following:
"Other than (i) this Agreement, (ii) the Amended and
Restated Stockholders Agreement dated as of September 29,
1998 by and among the Company, Seller and certain other
stockholders of the Company (the "Existing Stockholders
Agreement"), and (iii) any stockholders agreement to be
executed in connection with the Closing hereunder, none of
the Shares are subject to any agreement, contract,
commitment, understanding or arrangement, including any such
agreement, contract, commitment, understanding or
arrangement restricting or otherwise relating to the voting,
dividend rights or disposition of the Shares."
2. The last sentence of Section 5(c) of the Stock Purchase Agreement is
hereby deleted in its entirety and replaced with the following:
"No consent, approval, license, permit, order or
authorization of, or registration, declaration or filing
with, any Governmental Entity is required to be obtained or
made by or with respect to the Buyer in connection with the
execution, delivery, performance of this Agreement by the
Buyer or the consummation of the transactions contemplated
hereby."
3. Section 5 of the Stock Purchase Agreement is hereby amended by adding
the following section:
"(d) Investment Representation. Each party acquiring Shares hereunder
will be receiving the Shares for his or its own account for
investment only and not with a view towards distribution or resale.
Each party acquiring Shares hereunder will either be an "accredited"
investor within the meaning of Rule 501 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), or will
have such knowledge and experience in financial and business matters
that such party is capable of evaluating the merits and risks of
investment in the Shares and will be able to bear the economic risk
of its investment in the Shares. Each party acquiring Shares
hereunder acknowledges that any routine sale of such Shares made in
reliance upon Rule 144 promulgated under the Securities Act can be
made only in accordance with the terms and conditions of such Rule
and further, that in case such Rule is not applicable to any sale of
the Shares, resale thereof may require compliance with some other
exemption under the Securities Act prior to resale. Each party
acquiring Shares hereunder acknowledges that the certificates
representing the Shares issued pursuant to this Agreement shall bear
the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD OR
OFFERED FOR SALE, TRANSFERRED, HYPOTHECATED OR OTHERWISE
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT THERETO UNDER SUCH ACT OR AN OPINION
OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION FOR SUCH
SALE, OFFER, TRANSFER, HYPOTHECATION OR OTHER ASSIGNMENT IS
AVAILABLE UNDER SUCH ACT.""
4. Section 12(a)(iv) is hereby deleted in its entirety and replaced with
the following:
"by the Seller or Buyer (provided, however, in the case of Buyer,
only if Buyer has given the Seller at least five business days' prior
written notice of its intention to terminate pursuant to this Section
12(a)(iv), which notice may not be given prior to June 1, 2000), if
the Closing does not occur on or prior to May 31, 2000;"
5. Section 24 is hereby deleted in its entirety and replaced with the
following:
"24. Additional Signature Parties. At any time after the date hereof
and at or prior to five (5) business days prior to the Closing, any
other holder of Non-Voting Common Stock, any holder of voting common
stock, par value $.01 per share of the Company (the "Voting Common
Stock") and any holder of warrants to acquire shares of Non-Voting
Common Stock (the "Warrants") as of the date hereof shall be
permitted to execute and deliver to the Buyer an Additional Party
Signature Page substantially in the form of Annex B hereto (each such
party who executes and delivers to the Buyer such document, an
"Additional Stockholder Party"), pursuant to which such Additional
Stockholder Party shall be entitled, subject to the terms and
conditions herein, to become a "Seller" for all purposes of this
Agreement, and shall be entitled to sell to Buyer the number of
shares of Non-Voting Common Stock or Voting Common Stock or the
number of Warrants, held by such Additional Stockholder Party and set
forth on such Additional Party Signature Page on the same terms set
forth in this Agreement; provided that each holder of Warrants that
elects to sell Warrants hereunder shall be entitled to receive a
price per Warrant, equal to the Per Share Purchase Price, as adjusted
hereunder, minus the exercise price of such Warrant. Each Additional
Stockholder Party shall be deemed to have made the representations
and warranties of Seller herein and be bound by the other agreements
of Seller herein, and the shares of Non-Voting Common Stock and
Voting Common Stock and the Warrants sold by each such party shall be
deemed "Shares" for all purposes hereunder. To the extent that any
Additional Stockholder Party elects to sell shares of Non-Voting
Common Stock, shares of Voting Common Stock or Warrants, the number
of shares of Non-Voting Common Stock to be sold by CarrAmerica
pursuant to this Agreement shall be decreased by the number of shares
of Non-Voting Common Stock, shares of Voting Common Stock or
Warrants, as applicable, to be sold by such Additional Stockholder
Party, it being intended that the Buyer shall be entitled to and
required to purchase only the number of shares of Non-Voting Common
Stock, shares of Voting Common Stock and Warrants, in the aggregate
from CarrAmerica and all Additional Stockholder Parties, shown as
being proposed to be sold by CarrAmerica on Exhibit A as delivered on
January 20, 2000; provided that, notwithstanding anything to the
contrary contained herein, in the event any Additional Stockholder
Party shall breach any representation or warranty or otherwise fail
to perform any of its obligations under this Agreement, CarrAmerica
shall have the right to make such representation or warranty and
otherwise perform such obligations on behalf of such Additional
Stockholder Party. If Warrants are sold to Buyer pursuant to this
Section 24, Buyer will immediately exercise such Warrants and pay the
exercise price therefor to the Company (or its successors)."
6. Simultaneously with the execution of this Amendment, RSI shall
contribute $1,350,000 to VANTAS and VANTAS shall pay $1,350,000 in cash (the
"Company Stockholder Extension Payment") to the Company, as agent for the
stockholders of the Company who have elected to sell all or a portion of their
shares in the Company, as compensation for the extension of the Closing Date
from April 30, 2000 to May 31, 2000, which funds shall be distributed by the
Company on a pro rata basis to such stockholders based on the percentage of
shares being sold by each such stockholder divided by the total number of
shares being sold. The Company Stockholder Extension Payment is nonrefundable
and will not be used to adjust the consideration otherwise payable in
connection with the consummation of the transactions contemplated by the Stock
Purchase Agreement.
7. Seller represents and warrants that Seller has the requisite capacity
and authority, and has taken all actions necessary in order, to execute,
deliver and perform its obligations under this Amendment. This Amendment is a
legal, valid and binding obligation of Seller, enforceable in accordance with
its terms, except insofar as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of creditors'
rights generally including such general equitable principles as may apply in
the enforcement of creditors' rights.
8. Buyer represents and warrants that Buyer has the requisite capacity
and authority, and has taken all actions necessary in order, to execute,
deliver and perform its obligations under this Amendment. This Amendment is a
legal, valid and binding obligation of Buyer, enforceable in accordance with
its terms, except insofar as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of creditors'
rights generally including such general equitable principles as may apply in
the enforcement of creditors' rights.
9. This Amendment and the other agreements referred to herein represent
the entire understanding of the parties with respect to the subject matter
contained herein. This Amendment may not be amended, modified or waived except
in a writing signed by the party against whom enforcement of such amendment,
modification or waiver is sought. This Amendment shall be construed and
interpreted in accordance with the laws of the State of Delaware, without
reference to the conflict of laws principles contained therein. This Amendment
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which, when taken together, shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
CARRAMERICA REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
FRONTLINE CAPITAL GROUP
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
