EXHIBIT 5
CONTRIBUTION AND VOTING AGREEMENT
CONTRIBUTION AND VOTING AGREEMENT, dated as of February 23,
2001 (this "Agreement"), among XXXX XX Holding Corp., a Delaware
corporation ("Holding"), XXXX XX Corp., a Delaware corporation
and wholly owned subsidiary of Holding ("Newco"), RCBA Strategic
Partners, L.P., a Delaware limited partnership (together with its
respective permitted assigns as provided herein, "XXXX"), FS
Equity Partners III, L.P., a Delaware limited partnership
("FSEP"), and FS Equity Partners International, L.P., a Delaware
limited partnership ("FSEP International", and together with
FSEP, "Xxxxxxx Xxxxxx"), Xxxxxxx X. Xxxxx ("Xxxxx"), W. Xxxxx
Xxxxx ("White") and those other investors who are signatories to
this agreement (collectively with Xxxxx and White, the "Other
Investors"). XXXX, Xxxxxxx Spogli and the Other Investors are
herein collectively referred to as the "Investors." Unless
expressly provided otherwise in this Agreement, capitalized terms
defined in the Merger Agreement when used in this Agreement shall
have the same meanings set forth in the Merger Agreement (defined
below).
WHEREAS, concurrently with the execution and delivery of
this Agreement, Newco has entered into a Merger Agreement (the
"Merger Agreement") dated as of the date hereof with CB Xxxxxxx
Xxxxx Services, Inc., a Delaware corporation ("CBRE"), pursuant
to which and subject to the terms and conditions thereof, Newco
shall merge with and into CBRE (the "Merger"), such that CBRE
shall thereafter be a wholly owned subsidiary of Holding;
WHEREAS, in connection with the consummation of the Merger
and the receipt by the Investors of common stock of Holding,
each of the Investors shall become parties to a stockholders'
agreement in the form attached hereto as Exhibit A (the
"Securityholders' Agreement");
WHEREAS, in connection with the execution of the Merger
Agreement, Newco has received certain financing agreements and
documents from Credit Suisse First Boston ("CSFB") and DLJ
Investment Funding, Inc. ("DLJ") with respect to the provision of
debt financing to effect the Merger (the "Debt Financing
Documents"); and
WHEREAS, the parties hereto desire to make certain
agreements, representations, warranties and covenants in
connection with the Merger, the Merger Agreement, the
Securityholders' Agreement, the Debt Financing Documents and the
transactions contemplated hereby and thereby (collectively, the
"Transactions").
NOW, THEREFORE, in consideration of the mutual covenants and
conditions as hereinafter set forth, the parties hereto do hereby
agree as follows:
1. CONTRIBUTIONS
1.1 XXXX Contribution. At the Contribution Closing (as
defined below), on the terms and subject to the conditions of
this Agreement, XXXX hereby agrees to (i) transfer and deliver
to Holding 2,345,900 shares of common stock, par value $.01 per
share (the "CBRE Common Stock"), of CBRE (the "XXXX Stock
Contribution"), and (ii) make an aggregate cash contribution to
Holding of approximately $60.8 million to $109.9 (as determined
by Holding no less than twelve business days prior to the
Contribution Closing) in immediately available funds to an
account of Holding (the "XXXX Cash Contribution," and together
with the XXXX Stock Contribution, the "XXXX Contribution"). In
connection with such XXXX Contribution, Holding hereby agrees to
issue to XXXX at the Contribution Closing (a) 2,345,900 shares
of common stock, par value $.01 per share ( "Holding Common
Stock"), of Holding in exchange for the XXXX Stock Contribution
and (b) a number of shares of Holding Common Stock in exchange
for the XXXX Cash Contribution equal to the quotient obtained by
dividing (x) the amount of the XXXX Cash Contribution by
(y) $16.00 (the shares of Holding Common Stock being issued to
XXXX in accordance with clauses (a) and (b) are collectively
referred to as the "XXXX Shares").
1.2 Xxxxxxx Xxxxxx Contributions. At the Contribution
Closing, on the terms and subject to the conditions of this
Agreement, Xxxxxxx Xxxxxx hereby agrees to transfer and deliver
to Holding 3,402,463 shares of CBRE Common Stock (the "Xxxxxxx
Xxxxxx Contribution"). In connection with such Xxxxxxx Xxxxxx
Contribution, Holding hereby agrees to issue to Xxxxxxx Xxxxxx
at the Contribution Closing 3,402,463 shares (the "Xxxxxxx
Xxxxxx Shares") of Holding Common Stock.
1.3 Other Investors Contribution. At the Contribution
Closing, on the terms and subject to the conditions of this
Agreement, each of the Other Investors hereby agrees to transfer
and deliver to Holding the total number of shares of CBRE Common
Stock set forth opposite his or her name on Schedule I hereto
((each, a "Other Investor Contribution"). In connection with
each such Other Investor Contribution, Holding hereby agrees to
issue to such Other Investor at the Contribution Closing the
total number of shares (the "Other Investor Shares") of Holding
Common Stock set forth opposite his or her name on Schedule I
hereto.
1.4 Delivery of Funds and Certificates. Subject to the
satisfaction (or waiver by the parties entitled to the benefit
thereof) of the conditions set forth in Section 1.5 of this
Agreement, the closing of the transactions contemplation hereby
(the "Contribution Closing") will take place at the offices of
Xxxxxxx Xxxxxxx & Xxxxxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000, or at such other location as the parties may
mutually agree, immediately prior to the closing under the Merger
Agreement. At the Contribution Closing, Holding will deliver to
the Investors duly executed certificates, registered in the
Investors' respective names, representing the XXXX Shares, the
Xxxxxxx Xxxxxx Shares and each of the Other Investor Shares, as
the case may be, against the transfer and payment (including, to
the extent applicable, the delivery of certificates evidencing
the applicable number of shares of CBRE Common Stock duly
endorsed to Holding), to Holding of the XXXX Contribution, the
Xxxxxxx Xxxxxx Contribution and each of the Other Investor
Contributions, respectively, which shall represent payment in
full for the XXXX Shares, the Xxxxxxx Xxxxxx Shares and each of
the Other Investor Shares.
1.5 Conditions to the Obligations of the Parties
Hereunder. The respective obligations of the Investors to
consummate the transactions contemplated by this Agreement shall
be subject to the following conditions, each of which is for the
benefit of and any of which may be waived by the Investors:
(a) Subject to Section 4.9, Holding shall have
determined that all the conditions to the consummation of the
Merger (as set forth in the Merger Agreement) have been
satisfied or waived by the necessary party to the Merger
Agreement; and
(b) the representations and warranties of Holding
and Newco contained herein shall be correct and complete in
all material respects as of the Contribution Closing to the
same extent as though made on and as of such date.
1.6 Termination. This Agreement may be terminated and
the Transactions may be abandoned at any time prior to the
Contribution Closing by any of the parties hereto if the Merger
Agreement shall have been terminated in accordance with its
terms. In the event of any termination of the Agreement as
provided in this Section 1.6, this Agreement shall forthwith
become wholly void and of no further force or effect (except
Section 4.4 and Article V) and there shall be no liability on
the part of any parties hereto or their respective officers or
directors, except as provided in such Section 4.4 and Article V.
Notwithstanding the foregoing, no party hereto shall be relieved
from liability for any willful breach of this Agreement.
2. REPRESENTATIONS AND WARRANTIES.
2.1 Representations and Warranties of Holding and Newco.
Each of Holding and Newco represents and warrants to the
Investors as follows:
(a) Each of Holding and Newco is a corporation duly
incorporated, validly existing and in good standing under the
laws of the state of Delaware and has all requisite corporate
power and authority to execute and deliver this Agreement and
the agreements contemplated hereby and to perform its
obligations hereunder and thereunder. The execution and
delivery by each of Holding and Newco of this Agreement and the
agreements contemplated hereby, the performance by each of
Holding and Newco of its obligations hereunder and thereunder,
and the consummation by each of Holding and Newco of the
transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action. This Agreement
has been duly executed and delivered by each of Holding and
Newco and, assuming the due authorizations, executions and
deliveries thereof by the Investors, constitutes a legal, valid
and binding obligation of each of Holding and Newco, enforceable
against each of Holding and Newco in accordance with its terms,
except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors rights generally and
by the effect of general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity
or in law).
(b) As of the date hereof, the authorized capital
stock of Holding consists of 2000 shares of Holding Common
Stock, 10 of which are issued and outstanding and held by XXXX
as of the date hereof (each such share having been purchased by
XXXX for a cash price of $16.00 per share). As of the date hereof,
the authorized capital stock of Newco consists of 2000 shares of
common stock, par value $.01 per share ( "Acquiror Common
Stock"), 10 of which are issued and outstanding and held by
Holding as of the date hereof (each such share having been
purchased by Holding for a cash price of $16.00 per share).
(c) The XXXX Shares, the Xxxxxxx Xxxxxx Shares and
the Other Investors Shares, when issued and delivered in
accordance with the terms hereof and upon receipt of payment
required to be made hereunder, will be duly authorized, validly
issued, fully paid and nonassessable and free and clear of any
mortgage, pledge, security interest, claim, encumbrance, lien
or charge of any kind (each, a "Lien").
(d) The execution, delivery and performance by each
of Holding and Newco of this Agreement and the agreements
contemplated hereby and the consummation by each of Holder and
Newco of the transactions contemplated hereby and thereby do
not and will not, with or without the giving of notice or the
passage of time or both, (i) violate the provisions of any law,
rule or regulation applicable to either Holding or Newco or its
properties or assets; (ii) violate the provisions of the
certificate of incorporation or bylaws of either Holding or
Newco, as amended to date; or (iii) violate any judgment,
decree, order or award of any court, governmental or
quasi-governmental agency or arbitrator applicable to either
Holding or Newco or their properties or assets.
(e) Except to the extent required pursuant to
(i) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated
thereunder, (ii) any Non-U.S. Competition Laws and (iii) any
similar applicable Laws, no consent, approval, exemption or
authorization is required to be obtained from, no notice is
required to be given to and no filing is required to be made
with any third party (including, without limitation,
governmental and quasi-governmental agencies, authorities and
instrumentalities of competent jurisdiction) by Holding or
Newco, in order (i) for this Agreement to constitute a legal,
valid and binding obligation of Holding and Newco or (ii) to
authorize or permit the consummation by Holding of the
issuance of the XXXX Shares, the Xxxxxxx Xxxxxx Shares and the
Other Investor Share.
(f) Each of Holding and Newco was organized solely
for the purpose of effecting the Transactions and has engaged
in no activity other than in connection therewith.
2.2 Representations and Warranties of the Investors.
Each of the Investors represents and warrants, severally and
not jointly, to Holding and Newco and to the other Investors
that:
(a) The execution and delivery by such Investor of
this Agreement and the documents contemplated hereby, the
performances by such Investor of its, his or her obligations
hereunder and thereunder and the consummations by such Investor
of the transactions contemplated hereby and thereby have been
duly authorized by all requisite action on the part of such
Investor, and this Agreement has been duly executed and
delivered by such Investor and, assuming the due authorization,
execution and delivery thereof by Holding and Newco, constitutes
a legal, valid and binding obligation of such Investor,
enforceable against such Investor in accordance with its terms,
except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors rights generally
and by the effect of general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or in law).
(b) The execution, delivery and performance by such
Investor of this Agreement and the agreements contemplated
hereby and the consummation by such Investor of the
transactions contemplated hereby and thereby does not and will
not, with or without the giving of notice or the passage of time
or both, (i) violate the provisions of any law, rule or
regulation applicable to such Investor or its, his or her
respective properties or assets; (ii) violate the provisions of
the constituent organizational documents or other governing
instruments applicable to such Investor, as amended to date; or
(iii) violate any judgment, decree, order or award of any court,
governmental or quasi-governmental agency or arbitrator
applicable to such Investor or its, his or her respective
properties or assets.
(c) Such Investor (i) is an "accredited investor"
within the definition of Regulation D promulgated by the
Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), (ii) is
experienced in evaluating and investing in private placement
transactions of securities of companies in a similar stage of
development and acknowledges that he, she or it is able to fend
for himself, herself or itself, can bear the economic risk of
the Investor's investment in Holding, and has such knowledge
and experience in financial and business matters that the
Investor is capable of evaluating the merits and risks of the
investment in the Holding Common Stock and can afford a complete
loss of its, his or her investment, (iii) if other than an
individual, has not been organized for the purpose of acquiring
the Holding Common Stock, (iv) understands that no public market
now exists for the Holding Common Stock and there is no
assurance that a pubic market will ever exist for the Holding
Common Stock and (v) understands that the Holding Common
Stock may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act or an exemption
therefrom, and that in the absence of an effective registration
statement covering the Holding Common Stock or an available
exemption from registration under the Securities Act, the Holding
Common Stock must be held indefinitely.
(d) Such Investor's, together with its Affiliates'
(as defined in the Merger Agreement), total beneficial ownership
of shares of outstanding CBRE Common Stock as of the date hereof
is accurately set forth opposite such Investor's name on Schedule
I hereto, and each of such shares when transferred and delivered
to Holding will be free and clear of all Liens.
(e) Such Investor has no plan or intention to transfer
its shares of Holding Common Stock following the Contribution
Closing.
3. VOTING AND EXCLUSIVITY.
3.1 Voting. Each of the Investors agrees to vote or
consent (or cause to be voted or consented), in person or by
proxy, any shares of CBRE Common Stock beneficially owned or
held of record by such Investor or to which such party has,
directly or indirectly, the right to vote or direct the voting
(the "Subject Shares") in favor of the Transactions and any
other matter required to effect the Transactions at any meeting
(whether annual or special and whether or not an adjourned or
postponed meeting) of stockholders of CBRE called to consider
such matters. In order to effectuate this section 3.1, each of
the Investors hereby grants to Holding an irrevocable proxy,
which proxy is coupled with an interest, to vote all of the
Subject Shares owned by such Investor in favor of the
Transactions and any other matter required to effect the
Transactions at any meeting of stockholders of CBRE called
to consider such matters.
3.2 Exclusivity. Prior to the earlier of the Contribution
Closing or the termination of this Agreement, unless otherwise
mutually agreed in writing by XXXX and Xxxxxxx Xxxxxx, each of
the Investors (in their individual capacities as stockholders of
CBRE and not in their capacities as officers or directors of
CBRE, if applicable) will (i) not, directly or indirectly, make,
participate in or agree to, or initiate, solicit, encourage or
knowingly facilitate any inquiries or the making of, any
proposal or offer with respect to, or a transaction to effect,
a merger, reorganization, share exchange, consolidation,
business combination, recapitalization, liquidation, dissolution
or similar transaction involving CBRE or any of its
subsidiaries, or any purchase or sale of 20% or more of the
consolidated assets (including without limitation stock of its
subsidiaries) of CBRE and its subsidiaries, taken as a whole,
or any purchase or sale of, or tender or exchange offer for,
the equity securities of CBRE that, if consummated, would
result in any person or entity beneficially owning securities
representing 20% or more of the total voting power of CBRE
(or of the surviving parent entity in such transaction) or
any of its subsidiaries, in each case other than the
Transactions (any such proposal, offer or transaction (other
than the Transactions) being hereinafter referred to as a
"Competing Acquisition Proposal"), (ii) vote or consent (or
cause to be voted or consented), in person or by proxy, any
Subject Shares against any Competing Acquisition Proposal at any
meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of stockholders of CBRE,
(iii) not, directly or indirectly, sell, transfer or
otherwise dispose of any shares of CBRE Common Stock
beneficially owned by such party (including, without limitation,
in the case of Xxxxxxx Xxxxxx, the warrant to acquire 364,884
shares of CBRE Common Stock held by Xxxxxxx Xxxxxx) and
(iv) not enter into any agreement, commitment or
arrangement that is inconsistent with any of the foregoing.
4. OTHER COVENANTS.
4.1 Merger Agreement. The parties hereto acknowledge and
agree that Holding will have sole discretion with respect to
(a) determining whether the conditions set forth in the Merger
Agreement have been satisfied by the appropriate parties thereto
and/or whether to waive any of such conditions pursuant to the
terms of the Merger Agreement, and (b) the manner and timing of
its and CBRE's compliance with the covenants applicable to it
and CBRE under the Merger Agreement. Subject to the immediately
preceding sentence, Holding may not amend, or agree to amend,
the Merger Agreement without the prior written consent of both
XXXX and Xxxxxxx Xxxxxx. XXXX agrees to amend, or cause the
amendment of, the certificates of incorporation of each of
Holding and Acquiror at or prior to the Contribution Closing to
increase the total number of authorized shares of Holding Common
Stock and Acquiror Common Stock, respectively, in order to
permit the consummation of the transactions contemplated hereby
and by the Merger Agreement.
4.2 Financing Documents. The parties hereto acknowledge
and agree that Holding will have sole discretion with respect to
the negotiation of definitive debt financing documents with CSFB
(or any other lending person) and any supporting lenders based
upon the Debt Financing Documents.
4.3 Agreement to Cooperate; Further Assurances. Subject
to the terms and conditions of this Agreement, each of the
parties hereto shall use all reasonable best efforts to take, or
cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the Transactions,
including providing information and using reasonable best
efforts to obtain all necessary or appropriate waivers, consents
and approvals, and effecting all necessary registrations and
filings.
4.4 Fees and Expenses.
(a) Subject to Section 4.4(b), in the event that this
Agreement is terminated prior to the Contribution Closing, the
costs incurred by any party hereto in preparing this Agreement
and in pursuing and negotiating the Transactions (including all
attorneys' fees and costs relating thereto) (the "Transaction
Expenses") will be paid by the party incurring such Transaction
Expenses.
(b) In the event that the Merger Agreement is
terminated and XXXX shall receive any payment from CBRE pursuant
to Section 10.2 of the Merger Agreement (the "Termination Fee"),
promptly after receipt of such Termination Fee, XXXX shall
allocate and pay the Termination Fee, in part or in whole, as
applicable, as follows: (i) first, to XXXX and the Other
Investors in an amount equal to their Transaction Expenses
(to the extent such Transaction Expenses shall exceed the
Termination Fee, then each such party shall receive a pro rata
amount of such Termination Fee based upon such party's
Transaction Expenses incurred), (ii) second, if available,
any amounts required to be paid to CSFB and DLJ in the
Debt Financing Documents and (iii) lastly, subject to Section
4.4(c) hereto, the remaining amount of the Termination Fee to
XXXX or its Affiliate (as defined in Section 5.3 hereto).
(c) If (i) the Merger Agreement is terminated because
of the Company's consummation of an Acquisition Proposal (as
defined in the Merger Agreement), (ii) Holding is entitled to
receive any payment from CBRE pursuant to Section 10.2 of
the Merger Agreement, and (iii) (x) Xxxxx is not offered
continued employment on comparable terms with CBRE (or the
parent or surviving company in such Acquisition Proposal)
following the consummation of such other Acquisition Proposal
for a period of at least 12 months (unless such shorter period
is requested by Xxxxx), then Xxxxx will be entitled to receive
5.7% of the portion of the Termination Fee, if any, paid to XXXX
or its Affiliate pursuant to Section 4.4(b)(iii), or (y) White
is not offered continued employment on comparable terms with
CBRE (or the parent or surviving company in such Acquisition
Proposal) following the consummation of such other Acquisition
Proposal for a period of at least 12 months (unless such
shorter period is requested by White), then White will be
entitled to receive 4.3% of the portion of the Termination
Fee, if any, paid to XXXX or its Affiliate pursuant to Section
44.4(b)(iii).
(d) In the event that the closing under the Merger
Agreement occurs, the Surviving Corporation in the Merger shall,
simultaneously with such closing, pay (i) to RCBA GP, L.L.C. (or
an affiliate designated by it) a transaction fee of $3 million
in immediately available funds and (ii) to Xxxxxxx Xxxxxx & Co.
Incorporated (or an affiliate designated by it) a transaction
fee of $2 million in immediately available funds. In addition,
simultaneously with such closing, the Surviving Corporation
shall reimburse each of the parties hereto for all Transaction
Expenses incurred by such party.
4.5 Notification of Certain Matters. Each party to this
Agreement shall give prompt notice to each other party of
(i) the occurrence or non-occurrence of any event, the
occurrence or non-occurrence of which is likely to cause any
representation or warranty of such party contained in this
Agreement to be untrue or inaccurate at or prior to the
Contribution Closing and (ii) any failure of such party to
comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this
Section 4.5 shall not limit or otherwise affect any remedies
available to the party receiving such notice. No disclosure by
any party pursuant to this Section 4.5 shall prevent or cure any
misrepresentations, breach of warranty or breach of covenant.
4.6 Public Statements. Before any party to this
Agreement, other than XXXX, Holding or Newco, or any Affiliate
of such party shall release any statements concerning this
Agreement, the Merger Agreement, the Securityholders' Agreement,
the Debt Financing Documents, the Transactions or any of the
matters contemplated hereby and thereby which is intended
for or may result in public dissemination thereof, such party
shall cooperate with the other parties and provide the other
parties the reasonable opportunity to review and comment upon
any such statements and, unless otherwise required by law or as
may be required to be disclosed by any party in any Schedule 13D
filing, shall not release or permit release of any such
information without the consent of the other parties, which
shall not be unreasonably withheld.
4.7 Execution of Securityholders' Agreement. At the time
of the Contribution Closing, each of the Investors agrees to
execute and deliver to the other parties thereto the
Securityholders' Agreement.
4.8 Xxxxxxx Xxxxxx Warrant. Holding agrees to issue to
Xxxxxxx Xxxxxx or its Affiliate immediately after the closing
under the Merger Agreement a warrant in the form attached hereto
as Exhibit B (the "Warrant Agreement"). Xxxxxxx Xxxxxx agrees
that at the time of the closing under the Merger Agreement, the
warrants to acquire 364,884 shares of Common Stock, par value
$.01 per share ("CBRE Common Stock"), of CBRE beneficially owned
by Xxxxxxx Xxxxxx shall be cancelled by CBRE without any payment
to Xxxxxxx Xxxxxx.
4.9 Consultation. In connection with (a) exercising its
discretion under Sections 1.5 and 4.1 and (b) any negotiations
contemplated by Section 4.2, XXXX and Holding will use their good
faith efforts to (i) promptly communicate with the other parties
hereto concerning the relevant issues and terms, (ii) permit the
other parties hereto to participate in the negotiation of such
terms, if applicable, and (iii) consider the views of the other
parties hereto in the making of any decisions or conduct of any
negotiations, as applicable.
4.10 Waiver of Certain Rights in KRES Merger Agreement.
Effective upon the Closing, each of FSEP, FSEP International,
Xxxx Holding Company and Xxxxx (collectively, the "Former KRES
Shareholders") irrevocably and unconditionally waives any rights
that it or he may have under (i) Section 10.13 of the Agreement
and Plan of Merger, dated as of May 14, 1997 (the "KRES Merger
Agreement"), by and among CBRE, Xxxx Real Estate Services, the
Former KRES Shareholders and the other parties thereto, and (ii)
the Registration Rights Agreement, dated as of May 14, 1997, by
and among CBRE, the Former KRES Shareholders and the other
parties thereto.
4.11 Conversion of Xxxx Warrants. Each of Xxxxx and The
Xxxx Holding Company ("Xxxx") agrees that at the time of the
closing under the Merger Agreement, the warrants to acquire
55,936 shares of CBRE Common Stock beneficially owned by each
of Xxxxx and Xxxx (as a result of the Amended and Restated
Option Agreement, dated as of August 27, 1997 (the "Xxxxx-Xxxx
Option Agreement"), by and among The Xxxx Company, Koll, Wirta
and Xxxx Real Estate Services) shall each be converted into the
right to receive $1.00 and shall not thereafter represent the
right to receive any securities of, or other consideration
from, Holding or CBRE.
4.12 Transfers. Each Investor agrees not to enter into any
plan, agreement, arrangement or understanding to transfer its
shares of Holding Common Stock prior to and including the
Contribution Closing.
5. MISCELLANEOUS.
5.1 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in
writing (including by telecopy, telegraph or telex), and, unless
otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received, or, in the case of
telegraphic notice, when delivered to the telegraph company, or,
in the case of telex notice, when sent, answerback received,
addressed as follows to Holding, Newco and the Investors, or to
such other address as may be hereafter notified by the parties
hereto:
(a) If to Holding or Newco, to it at the following address:
c/o BLUM Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to an Investor, to it at its address set
forth in Section 6.3 of the Securityholders' Agreement.
5.2 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the
State of Delaware applicable to contracts executed and to be
performed entirely within that state. Each of the parties by
its execution hereof hereby (i) irrevocably submits to the
jurisdiction of the federal and state courts located in the
County of San Francisco in the State of California for the
purpose of any suit, action or other proceeding arising out
of or based upon this Agreement or any other agreement
contemplated hereby or relating to the subject matter hereof
or thereof and (ii) waives to the extent not prohibited by
applicable law, and agrees not to assert by way of motion,
as a defense or otherwise, that its property is exempt or
immune from attachment or execution, that any such proceeding
brought in one of the above-named courts is improper, or that
any right or remedy relating to this Agreement or any other
agreement contemplated hereby, or the subject matter hereof
or thereof, may not be enforced in or by such court. Each of
the parties hereby consents to service of process in any such
proceeding in any manner permitted by the laws of the state of
California, and agrees that service of process by registered or
certified mail, return receipt requested, at its address
specified pursuant to Section 5.2 hereof is reasonably
calculated to give actual notice.
5.3 Assignment. This Agreement may not be assigned by
any party hereto, except that the rights and obligations of XXXX
to provide the XXXX Cash Contribution may be assigned by XXXX in
whole or in part to any affiliate of XXXX provided that no such
assignment will relieve XXXX of any of its obligations hereunder.
Any assignment or delegation in derogation of this provision
shall be null and void. The provisions hereof shall inure to
the benefit of, and be binding upon, the successors, assigns,
executors and administrators of the parties hereto.
5.4 Counterparts. This Agreement may be executed in two
or more counterparts, and by different parties on separate
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
5.5 Integration. This Agreement, the Merger Agreement,
the Securityholders' Agreement, the Warrant Agreement, the
letter agreement between XXXX and an affiliate of Xxxxxxx Xxxxxx
and the documents referred to herein and therein or delivered
pursuant hereto or thereto contain the entire understanding of
the parties with respect to the subject matter hereof and
thereof. There are no agreements, representations, warranties,
covenants or undertakings with respect to the subject matter
hereof and thereof other than those expressly set forth herein
and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to this subject
matter, including, without limitation, the letter agreement
dated as of November 10, 2000 among the Investors.
5.6 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of
this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement
in addition to any other remedy to which they are entitled at
law or in equity.
IN WITNESS WHEREOF, Newco and the Investors have
executed this Agreement as of the day and year first above
written.
XXXX XX HOLDING CORP.
By: /s/ Claus X. Xxxxxx
------------------------------
Name:
Title:
XXXX XX CORP.
By: /s/ Claus X. Xxxxxx
------------------------------
Name:
Title:
RCBA STRATEGIC PARTNERS, L.P.
By: RCBA GP, L.L.C., its general
partner
By: /s/ Claus X. Xxxxxx
------------------------------
Name:
Title:
FS EQUITY PARTNERS III, L.P.
By: FS Capital Partners, L.P., its
general Partner
By: FS Holdings, Inc., its
general partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FS EQUITY PARTNERS INTERNATIONAL, L.P.
By: FS&Co. International, L.P.,
its general Partner
By: FS International Holdings
Limited, its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE XXXX HOLDING COMPANY
/s/ Xxxxxx X. Xxxx
---------------------------------
By: Xxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxxx
---------------------------------
By: Xxxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
---------------------------------
By: Xxxxxxx X. Xxxxx
/s/ W. Xxxxx Xxxxx
---------------------------------
By: W. Xxxxx Xxxxx
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA
Strategic Partners, L.P., FS Equity Partners III, L.P., FS Equity
Partners International, L.P., The Xxxx Holding Company, Xxxxxxxx
X. Xxxxx, Xxxxxxx X. Xxxxx and W. Xxxxx Xxxxx, I,
Xxxxxx Xxxxx, the spouse of Xxxxxxx X. Xxxxx, do
hereby join with my spouse in executing the foregoing
Contribution and Voting Agreement and do hereby agree to be bound
by all of the terms and provisions thereof.
Dated as of February 23, 2001 /s/ Xxxxxx Xxxxx
------------------------------
[Spouse]
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA
Strategic Partners, L.P., FS Equity Partners III, L.P., FS Equity
Partners International, L.P., The Xxxx Holding Company, Xxxxxxxx
X. Xxxxx, Xxxxxxx X. Xxxxx and W. Xxxxx Xxxxx, I,
Xxxxxxxx Xxxxx, the spouse of W. Xxxxx Xxxxx, do hereby
join with my spouse in executing the foregoing Contribution and
Voting Agreement and do hereby agree to be bound by all of the
terms and provisions thereof.
Dated as of February 24, 2001 /s/ Xxxxxxxx Xxxxx
--------------------------------
[Spouse]
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA
Strategic Partners, L.P., FS Equity Partners III, L.P., FS Equity
Partners International, L.P., The Xxxx Holding Company, Xxxxxxxx
X. Xxxxx, Xxxxxxx X. Xxxxx and W. Xxxxx Xxxxx, I,
Xxxxxxx X. Xxxxx, the spouse of Xxxxxxxx X. Xxxxx, do
hereby join with my spouse in executing the foregoing
Contribution and Voting Agreement and do hereby agree to be bound
by all of the terms and provisions thereof.
Dated as of February 23, 2001 /s/ Xxxxxxx X. Xxxxx
--------------------------------
[Spouse]
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA
Strategic Partners, L.P., FS Equity Partners III, L.P., FS Equity
Partners International, L.P., The Xxxx Holding Company, Xxxxxxxx
X. Xxxxx, Xxxxxxx X. Xxxxx and W. Xxxxx Xxxxx, I,
Xxxxx Xxxx, the spouse of Xxxxxx X. Xxxx, do hereby
join with my spouse in executing the foregoing Contribution and
Voting Agreement and do hereby agree to be bound by all of the
terms and provisions thereof.
Dated as of February 23, 2001 /s/ Xxxxx Xxxx
--------------------------------
[Spouse]
Schedule I
Total Shares of
Outstanding Common
Stock Beneficially Owned
-------------------------------
XXXX 3,423,886
Xxxxxxx Xxxxxx 3,402,463
Xxxxxxx X. Xxxxx 35,000 (1)
W. Xxxxx Xxxxx 58,600
Xxxxxxxx X. Xxxxx 397,873
The Xxxx Holding 734,290 (1)
Company
_______________________________
(1) The shares listed as beneficially owned by Xxxxxxx X. Xxxxx
do not include currently exercisable options (the "Xxxxx-
Xxxx Options") granted to Xx. Xxxxx by The Xxxx Holding
Company (which is the wholly-owned subsidiary of The Xxxx
Company, which is wholly-owned by the Xxx Xxxx Separate
Property Trust, a trust for which Xxxxxx X. Xxxx is trustee)
to acquire 521,590 shares of CBRE Common Stock held by The
Xxxx Holding Company. The shares listed as beneficially
owned by The Xxxx Holding Company include the shares of CBRE
Common Stock underlying the Xxxxx-Xxxx Options. To the
extent that the Xxxxx-Xxxx Options are exercised prior to
the Contribution Closing, such underlying shares of CBRE
Common Stock received by Xx. Xxxxx shall be contributed to
Holding at the Contribution Closing pursuant to Section 1.3
hereto by Xx. Xxxxx instead of The Xxxx Holding Company and
Xx. Xxxxx shall receive the corresponding number of shares
of Holding Common Stock at the Contribution Closing in
respect thereof pursuant to Section 1.3 hereto instead of
The Xxxx Holding Company.
Exhibit A
[Insert final form of Stockholders Agreement]
Exhibit B
[Insert final form of Warrant Agreement]
