EXHIBIT 4.4
EMPLOYEE SUBSCRIPTION AGREEMENT
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EMPLOYEE SUBSCRIPTION AGREEMENT, dated as of July 13, 2001 between
CBRE Holding, Inc., a Delaware corporation formerly known as XXXX XX Holding
Corp. (the "Company"), and the individual named on the signature page hereto
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(the "Purchaser"). All capitalized terms used in this Agreement shall have the
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meanings set forth in Exhibit A hereto.
1. Subscription for and Purchase of Directly Owned Class A Common Stock.
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1.1. Purchase of Directly Owned Class A Common Stock.
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(a) Pursuant to the terms and subject to the conditions set
forth in this Agreement, the Purchaser hereby subscribes for and agrees to
purchase, and the Company hereby agrees to issue and sell to the Purchaser, on
the Closing Date (as defined in Section 1.3), the number of shares of Directly
Owned Class A Common Stock set forth on Schedule I hereto at a price of $16.00
per share and for the aggregate amount and forms of consideration (the "Total
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Purchase Price") set forth on Schedule I hereto. Notwithstanding the foregoing,
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in the event that the offering for Directly Owned Class A Common Stock is over-
subscribed, the Company, in its sole discretion, reserves the right to reduce
the number of shares available for purchase by the Purchaser from the number of
shares subscribed for on Schedule I hereto. In the event the offering is over-
subscribed, the Company will deliver to the Purchaser the reduced number of
shares available and a check equal to the difference of (i) the Total Purchase
Price as set forth on Row 2 of Schedule I and (ii) the actual purchase price of
the shares delivered to the Purchaser. For the Purchaser to properly subscribe
pursuant to this Section 1.1, (a) the Purchaser must properly complete Schedule
I (attached hereto) and execute this Agreement, and (b) the Company must receive
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from the Purchaser either by fax or mail (at the number or address indicated in
Section 4.9 hereto) both the properly completed Schedule I and this executed
Agreement no later than 5:00 p.m. Los Angeles time on July 13, 2001.
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(b) The Purchaser may pay the Total Purchase Price using any
combination of the following methods of payment: (i) assignment of all or a
portion of the net cash proceeds to be received by the Purchaser in the Merger
in respect of shares of CB Xxxxxxx Xxxxx Services Common Stock owned of record
by the Purchaser; (ii) assignment of all or a portion of the cash proceeds, net
of withholding tax, to be received by the Purchaser in respect of options to
acquire shares of CB Xxxxxxx Xxxxx Services common stock that are validly
tendered to CB Xxxxxxx Xxxxx Services pursuant to its offer to purchase such
options; and (iii) payment of cash. In the event that either the Assigned Merger
Proceeds, as defined in Section 1.7(a) hereto, or the Assigned Options Proceeds,
as defined in Section 1.7(b) hereto, is less than the amounts indicated on Row 4
of Schedule I, as applicable, the Purchaser agrees to pay promptly, and in any
event within 2 business days upon demand, the shortfall to the Company in cash.
1.2. Limitations Regarding Sales of Directly Owned Class A Common
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Stock. Notwithstanding anything in this Agreement to the contrary, the Company
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shall have no obligation to issue, sell or deliver any shares of Directly Owned
Class A Common Stock
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pursuant to this Agreement to any person (i) who is not a full-time employee of
CB Xxxxxxx Xxxxx Services or any of its Subsidiaries on the Closing Date or (ii)
who is a resident of a jurisdiction in which such issuance, sale or delivery to
such person would constitute a violation of the securities or "blue sky" laws of
such jurisdiction.
1.3. The Closing. The closing (the "Closing") of the purchase of
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Directly Owned Class A Common Stock hereunder shall take place at 9:00 a.m. New
York City time on July 20, 2001 or at such later date and at such time as the
Company shall direct on at least three business days' prior notice to the
Purchaser (the "Closing Date"). The Closing shall occur at the principal offices
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of the Company or at such other place as the parties may mutually agree. At the
Closing, the Company will deliver to the Purchaser one or more certificates
representing the number of shares of Directly Owned Class A Common Stock
purchased by the Purchaser pursuant to this Agreement (the "New Certificates")
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using New Cash Consideration as defined in Section 1.4(a)(ii) hereto, against
the Purchaser's (or the Purchaser's representative) prior delivery to the
Company of each of the agreements, documents and forms of consideration set
forth in Section 1.4(a)(i) and (ii) hereto applicable to the Purchaser. After
the Closing, the Company will deliver to the Purchaser one or more New
Certificates representing the number of shares of Directly Owned Class A Common
Stock purchased by the assignment to the Company (pursuant to Section 1.7
hereto) of all or a portion of the proceeds that the Purchaser would be
otherwise entitled to receive in the Merger for shares of CB Xxxxxxx Xxxxx
Services Common Stock, against the Purchaser's (or the Purchaser's
representative) prior delivery to the Company of the form of consideration set
forth in Section 1.4(a)(iii) hereto.
1.4. Conditions to the Obligations of the Parties.
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(a) The obligations of the Company under this Section 1 shall
be subject to each of the following conditions:
(i) the Purchaser shall have delivered to the Company on
or prior to 5:00 p.m. Los Angeles time on July 13, 2001 a copy of this
Agreement duly executed by Purchaser and, if applicable, his or her spouse,
together with a properly completed Schedule I to this Agreement;
(ii) the Purchaser shall have delivered to the Company
prior to the closing cash or a certified bank check in an amount equal to
Row 9 of Schedule I (the "New Cash Consideration");
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(iii) if the Purchaser is electing to pay all or a portion
of the Total Purchase Price for shares of Directly Owned Class A Common
Stock purchased hereby by the assignment to the Company (pursuant to
Section 1.7 hereto) of all or a portion of the proceeds that the Purchaser
would otherwise be entitled to receive in the Merger for shares of CB
Xxxxxxx Xxxxx Services Common Stock, the Purchaser shall deliver to the
Company after the Closing (A) the certificate or certificates (the "Old
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Certificates") representing such CB Xxxxxxx Xxxxx Services Common Stock
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upon Purchaser's receipt of a letter from the Company after the Closing
requesting the delivery of such Old Certificates, and (B) an executed,
undated stock power in the form of
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Exhibit B hereto (a "Stock Power") with respect to the shares of XX Xxxxxxx
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Xxxxx Services Common Stock represented by the Old Certificates;
(iv) if the Purchaser is married, or will be married on
the Closing Date, the Purchaser's spouse shall have duly executed and
delivered to the Company the "Consent of Spouse" page attached to this
Agreement;
(v) the closing of the Merger Agreement shall have
occurred prior to, or be occurring substantially simultaneously with, the
Closing; and
(vi) the representations and warranties of the Purchaser
in Section 1.6 of this Agreement shall be true and correct as of the
Closing Date in all material respects.
(b) The obligations of the Purchaser under this Section 1 shall
be subject to each of the following conditions:
(i) the representations and warranties of the Company in
Section 1.5 of this Agreement shall be true and correct as of the Closing
Date in all material respects, and
(ii) the closing of the Merger Agreement shall have
occurred prior to, or be occurring substantially simultaneously with, the
Closing.
1.5. Representations and Warranties of the Company. The Company
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represents and warrants to the Purchaser as follows:
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
the Company of this Agreement has been duly authorized by all necessary
corporate and legal action by the Company, and no other corporate proceeding by
the Company is necessary for the execution, delivery and performance by the
Company of this Agreement. This Agreement has been duly executed and delivered
by the Company and, assuming it is duly executed and delivered by the Purchaser,
constitutes a valid and binding obligation of the Company, enforceable against
the Company 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 at law).
(b) The Directly Owned Class A Common Stock to be issued to the
Purchaser pursuant to this Agreement, when issued and delivered in accordance
with the terms hereof, will be duly and validly issued and, upon receipt by the
Company of the Total Purchase Price therefor, will be fully paid and
nonassessable with no personal liability attached to the ownership thereof and
will not be subject to any preemptive rights under the DGCL.
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(c) The execution, delivery and performance by the Company of
this Agreement will not (i) conflict with the certificate of incorporation or
by-laws (or equivalent organizational documents) of the Company or any of its
Subsidiaries, (ii) result in any breach of any terms or conditions of, or
constitute a default under, any contract, agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound or (iii) conflict with or violate any law, rule,
regulation, ordinance, writ, injunction, judgment or decree applicable to the
Company or any of its Subsidiaries or by which any of their assets may be bound
or affected.
1.6. Representations and Warranties of the Purchaser. The Purchaser
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represents and warrants to the Company as follows:
(a) He or she is competent to, and has sufficient capacity to,
execute and deliver this Agreement and to perform his or her obligations
hereunder and thereunder.
(b) This Agreement has been, and simultaneously with the
Closing will be, duly executed and delivered by the Purchaser.
(c) Assuming the due execution and delivery of this Agreement
by the Company, this Agreement constitutes, and simultaneously with the Closing,
will constitute, valid and binding obligations of the Purchaser, enforceable
against the Purchaser in accordance with their 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 at law).
(d) The execution, delivery and performance of this Agreement
by the Purchaser will not (i) conflict with or violate any law, rule,
regulation, ordinance, writ, injunction, judgment or decree applicable to the
Purchaser or by which any of his or her assets may be bound or affected or (ii)
result in any breach of any terms or conditions of, or constitute a default
under, any contract, agreement or instrument to which the Purchaser is a party
or by which the Purchaser is bound.
(e) The Purchaser is the owner of record of the total number of
outstanding shares of CB Xxxxxxx Xxxxx Services Common Stock indicated on Row 3,
as applicable, of Schedule I.
(f) The Purchaser acknowledges and agrees that the Transfer of
any of the shares of Directly Owned Class A Common Stock purchased by the
Purchaser at the Closing and, pursuant to Section 4.2 hereto, other Securities
that the Purchaser shall hereafter acquire, shall be subject to restrictions and
limitations, including, without limitation, those restrictions set forth in
Sections 2.1 (Transfers to be Made Only as Permitted or Required by this
Agreement), 2.2 (Permitted Transfers), 2.4 (Legend on Securities), 2.5 (Co-Sale
Rights), 2.7 (Required Sale Right) and 3.1 (Holdback Agreement).
(g) The Purchaser has received a copy of the Prospectus and has
read all of the Prospectus, including the section therein titled "Risk Factors."
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(h) As of the date hereof and as of the Closing Date, the
Purchaser is buying for investment purposes only and has no immediate plan or
intention to transfer his or her shares of Directly Owned Class A Common Stock
following the Closing.
1.7. Assignment of Certain Proceeds to the Company.
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(a) Subject to the provisions of this Section 1.7(a), the
Purchaser hereby irrevocably assigns to the Company the right to receive the
amount of the Purchaser's Merger Proceeds set forth in Row 3 of Schedule I
hereto, if any (the "Assigned Merger Proceeds"), otherwise payable at the
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Effective Time. Pursuant to the terms of this Agreement, the parties agree that,
at the Effective Time, the Assigned Merger Proceeds assigned to the Company
shall be applied to the payment on behalf of the Purchaser of all or a portion
of the Total Purchase Price as the case may require. As a result of this Section
1.7(a), the Assigned Merger Proceeds shall, at the Effective Time, become the
property of the Company. In lieu of the delivery to the Purchaser of the
Assigned Merger Proceeds, the Company shall return or cause to be returned to
the Purchaser, and the Purchaser shall be entitled to receive, subject to the
terms and conditions of this Agreement, the New Certificates. Notwithstanding
the foregoing, this assignment shall not restrict in any manner the Purchaser's
ability to exercise voting rights with respect to the shares in his or her sole
discretion, or his or her ability to transfer or sell the shares in his or her
sole discretion. In the event that the Purchaser transfers or sells the shares
at any time, the assignment will be deemed revoked automatically and the
Purchaser agrees to deliver payment in cash in lieu of the Assigned Merger
Proceeds.
(b) Subject to the provisions of this Section 1.7(b), the
Purchaser hereby irrevocably assigns to the Company the right to receive the
amount of the Purchaser's Options Proceeds set forth in Row 4 of Schedule I
hereto, net of withholding tax, if any (the "Assigned Options Proceeds"),
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otherwise payable at the Effective Time with respect to those CB Xxxxxxx Xxxxx
Services Options indicated by the Purchaser on his or her Options Payment
Consent. Pursuant to the terms of this Agreement, the parties agree that, at the
Effective Time, the Assigned Options Proceeds assigned to the Company shall be
applied to the payment on behalf of the Purchaser of all or a portion of the
Total Purchase Price as the case may require. As a result of this Section
1.7(b), the Assigned Options Proceeds shall, at the Effective Time, become the
property of the Company. In lieu of the delivery to the Purchaser of the
Assigned Options Proceeds, the Company shall return or cause to be returned to
the Purchaser, and the Purchaser shall be entitled to receive, subject to the
terms and conditions of this Agreement, the New Certificates. Notwithstanding
the foregoing, this assignment shall not restrict in any manner the Purchaser's
ability to withdraw his or her tender of such options as indicated on the
Options Payment Consent. In the event that the Purchaser withdraws the Options
Payment Consent at any time prior to the Effective Time, the assignment will be
deemed revoked automatically and the Purchaser agrees to deliver payment in cash
in lieu of the Assigned Merger Proceeds.
(c) If the Purchaser is assigning any of his or her Merger
Proceeds to the Company pursuant to Section 1.7(a) hereto, the Purchaser agrees
to deliver to the Company the Old Certificates after the Closing accompanied by
a Stock Power, as set forth in Section 1.4(a)(iii). Do not send or deliver the
Old Certificates to the Company at this time. The Company will send a separate
letter requesting delivery of Old Certificates after the Closing as
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set forth in Section 1.4(a)(iii) hereto. If the Purchaser is assigning any of
his or her Options Proceeds, net of withholding tax, to the Company pursuant to
Section 1.7(b) hereto, the Purchaser agrees to complete, sign and deliver his or
her Options Payment Consent prior to the Closing.
2. Transfers.
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2.1. Transfers to be Made Only as Permitted or Required by this
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Agreement.
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(a) Each of the Purchaser and his or her Permitted Transferees
hereby agrees that he or she will not, directly or indirectly, Transfer any
shares of Directly Owned Class A Common Stock unless such Transfer complies with
the provisions of this Agreement.
(b) Each of the Purchaser and his or her Permitted Transferees
hereby agrees that, except for Transfers pursuant to Sections 2.2(a)(iii), 2.5
and 2.7 hereof or Transfers in any Public Offering, no Transfer of any shares of
Directly Owned Class A Common Stock prior to the Lapse Date shall occur unless
such transferee (i) shall agree to be bound by, and become subject to, specified
terms of this Agreement in accordance with the provisions of Section 4.5 hereof
or (ii) is an Other Purchaser.
(c) Each of the Purchaser and his or her Permitted Transferees
hereby agrees that neither the Purchaser nor any of his or her Permitted
Transferees shall, without the prior written consent of the Company (which
consent may be withheld by the Company in its absolute discretion), effect a
Transfer of shares of Directly Owned Class A Common Stock prior to the Lapse
Date, except for Transfers pursuant to Sections 2.2, 2.5 and 2.7 hereof or
Transfers in any Public Offering.
2.2. Permitted Transfers. The Purchaser may Transfer any of the
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shares of Directly Owned Class A Common Stock beneficially owned by him or her
(i) to his or her spouse, parent, descendant, step-child or step-grandchild or
any executor, estate, guardian, committee, trustee or other fiduciary acting as
such solely on behalf or solely for the benefit of any such spouse, parent,
descendant, step-child or step-grandchild (collectively, a "Family Group"), (ii)
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to any trust, corporation, partnership or limited liability company, all of the
beneficial interests in which shall be held, directly or indirectly, by such
Purchaser and/or one or more of the Family Group of such Purchaser; provided,
however, that during the period that any such trust, corporation, partnership or
limited liability company holds any right, title or interest in any shares of
Directly Owned Class A Common Stock, no Person other than the Purchaser or
members of the Family Group of the Purchaser may be or become beneficiaries,
stockholders, general partners or members thereof, (iii) to the Company, RCBA
Strategic or any of its Affiliates or Xxxxxxx Xxxxxx or any of their Affiliates,
or (iv) to any Other Employee. A transferee under Section 2.2(a)(i) or
2.2(a)(ii) is referred to as a "Permitted Transferee."
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2.3. Void Transfers.
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In the event of any purported Transfer of any Securities in violation
of the provisions of this Agreement, such purported Transfer shall be void and
of no effect and the Company shall not give effect to such Transfer.
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2.4. Legend on Securities.
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Each certificate representing shares of Directly Owned Class A Common
Stock issued to any Stockholder shall bear the following legend on the face
thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
SUBSCRIPTION AGREEMENT BETWEEN CBRE HOLDING, INC. AND THE PURCHASER (AS DEFINED
IN THE SUBSCRIPTION AGREEMENT), A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SUCH SUBSCRIPTION AGREEMENT. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL
OF THE PROVISIONS OF SUCH SUBSCRIPTION AGREEMENT, INCLUDING RESTRICTIONS
RELATING TO TRANSFER OF THE SECURITIES."
2.5. Co-Sale Rights.
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(a) Prior to a Qualified Initial Public Offering, with respect
to any proposed Transfer (other than as provided in Section 2.6) to any Non-RCBA
Strategic Party by one or more Stockholders (in such capacity, the "Transferring
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Stockholders") of Common Stock constituting a majority of the outstanding Common
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Stock, whether pursuant to a merger, consolidation, share exchange, tender offer
or otherwise (a "Majority Sale"), the Company agrees that, subject to Section
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2.5(b) hereof, it will take all necessary actions to ensure that in such
Majority Sale the Purchaser will have the right to Transfer to the proposed
transferee or acquiring Person (a "Proposed Transferee") a number of shares of
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Directly Owned Class A Common Stock equal to at least the product (rounded down
to the nearest whole number of shares) of (i) the quotient determined by
dividing (A) the aggregate number of issued and outstanding shares of Directly
Owned Class A Common Stock owned of record by the Purchaser on the closing date
of the Majority Sale by (B) the aggregate number of issued and outstanding
shares of Common Stock on the closing date of the Majority Sale and (ii) the
total number of shares of Common Stock proposed to be directly or indirectly
Transferred to the Proposed Transferee in the Majority Sale, at the same price
per share and upon the same terms and conditions (including, without limitation,
time of payment and form of consideration) as to be paid by and given to the
Transferring Stockholders (such product, the "Co-Sale Amount"); provided,
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further, that subject to compliance with applicable law, in the event that the
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Proposed Transferee notifies the Company that it will require the structure of
the transaction related to the proposed Majority Sale to be treated as a
recapitalization for financial accounting purposes and that it will require the
Company to no longer be subject to the reporting requirements or Section 14 of
the Exchange Act after the closing date of the proposed Majority Sale, then,
solely to the extent deemed necessary by the Proposed Transferee to satisfy such
requirements, the Proposed Transferee may pay to the Purchaser consideration in
the Majority Sale with respect to the shares of Directly Owned Class A Common
Stock owned by him or her that differs from the form of consideration paid to
one or more of the Transferring Stockholders.
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(b) To the extent permitted under applicable law, in order to
be entitled to the right set forth in Section 2.5(a) hereto, the Purchaser must
agree to (i) make representations and warranties (and provide related
indemnification) as to his or her individual Ownership of Directly Owned Class A
Common Stock (and then only to the same extent such representations and
warranties are severally given by the Transferring Stockholders with respect to
their several Ownership of Common Stock), and (ii) agree to pay his or her pro
rata share (based on the number of shares Transferred by each Stockholder in
such Majority Sale) of any liability arising out of any representations,
warranties, covenants or agreements of the Transferring Stockholders that
survive the closing of such Majority Sale and do not relate to Ownership of
Common Stock. If the Purchaser is a holder of Common Stock Equivalents and
wishes to participate in a sale of Common Stock pursuant to Section 2.5(a), the
Purchaser shall convert or exercise or exchange such number of Common Stock
Equivalents into or for Directly Owned Class A Common Stock as may be required
therefor on or prior to the closing date of the Majority Sale.
(c) Subject to the Purchaser's compliance with the terms of
Section 2.5(b) hereto, if and to the extent the Proposed Transferee fails to
purchase from the Purchaser on the closing date of the Majority Sale any portion
of the Co-Sale Amount that Purchaser has properly exercised his or her right to
Transfer pursuant to this Section 2.5, then the Company agrees to purchase from
the Purchaser on the closing date of the Majority Sale a number of shares of
Directly Owned Class A Common Stock beneficially owned by the Purchaser such
that, after such purchase by the Company, the Purchaser shall have Transferred
to the Company and the Proposed Transferee, to the extent applicable, an amount
of shares of Directly Owned Class A Common Stock equal to such portion of the
Co-Sale Amount that Purchaser has properly exercised his or her right to
Transfer pursuant to this Section 2.5. The Purchaser agrees that this Section
2.5(c) shall be the sole and exclusive remedy of the Purchaser in the event that
the Proposed Transferee fails to purchase from the Purchaser on the closing date
of the Majority Sale any portion of the Co-Sale Amount that Purchaser has
properly exercised his or her right to Transfer pursuant to this Section 2.5.
2.6. Public Offerings. The provisions of Section 2.5 and Section 2.7
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shall not be applicable to offers and sales of Securities in a Public Offering.
2.7. Required Sale Right.
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(a) Prior to a Qualified Initial Public Offering, to the extent
permitted under applicable law, if one or more Stockholders (in such capacity,
the "Requiring Parties") agree to a Transfer of Common Stock constituting a
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Majority Sale to any Non-RCBA Strategic Party, then the Purchaser hereby agrees
that, if requested by the Requiring Parties, he or she will Transfer to such
transferee or acquiring Person (the "Purchasing Party") on the same terms and
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conditions (including, without limitation, time of payment and form of
consideration, but subject to Section 2.7(b)) as to be paid and given to the
Requiring Parties, the same portion (as determined by the immediately succeeding
sentence) of the Purchaser's Directly Owned Class A Common Stock as is being
Transferred by the Requiring Parties; provided, however, that subject to
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compliance with applicable law, in the event that the Purchasing Party notifies
the Company that it will require the structure of the transaction related to the
proposed Majority Sale to be treated as a recapitalization for financial
accounting purposes and that it will require the
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Company to no longer be subject to the reporting requirements or Section 14 of
the Exchange Act after the closing date of the proposed Majority Sale, then,
solely to the extent deemed necessary by the Purchasing Party to satisfy such
requirements, the Purchasing Party may pay to the Purchaser consideration in the
Majority Sale with respect to the shares of Directly Owned Class A Common Stock
owned by him or her that differs from the form of consideration paid to one or
more of the Requiring Parties. The Purchaser can be required to Transfer
pursuant to this Section 2.7 that number of shares of Directly Owned Class A
Common Stock equal to the product obtained by multiplying (i) a fraction, (a)
the numerator of which is the aggregate number of issued and outstanding shares
of Directly Owned Class A Common Stock to be Transferred by the Requiring
Parties and (b) the denominator of which is the aggregate number of issued and
outstanding shares of Common Stock owned by the Requiring Parties at the time of
the Transfer by (ii) the aggregate number of issued and outstanding shares of
Directly Owned Class A Common Stock owned by the Purchaser.
(b) To exercise the right set forth in Section 2.7(a) hereto,
the Requiring Parties must give written notice (the "Required Sale Notice") to
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the Purchaser of any proposed Majority Sale giving rise to the rights of the
Requiring Parties set forth in Section 2.7(a) at least ten (10) calendar days
prior to such Transfer. The Required Sale Notice will set forth the number of
shares of Common Stock proposed to be so Transferred, the name of the Purchasing
Party, the proposed amount and form of consideration and the other terms and
conditions of the proposed Majority Sale. In connection with any such Transfer,
the Purchaser shall be obligated only to (i) make representations and warranties
(and provide related indemnification) as to his or her individual Ownership of
Directly Owned Class A Common Stock (and then only to the same extent such
representations and warranties are severally given by the Requiring Parties with
respect to their several Ownership of Common Stock), and (ii) agree to pay his
or her pro rata share (based on the number of shares Transferred by each
Stockholder in such Majority Sale) of any liability arising out of any
representations, warranties, covenants or agreements of the Requiring Parties
that survive the closing of such Majority Sale and do not relate to Ownership of
Common Stock. If the Transfer referred to in the Required Sale Notice is not
consummated within 120 days from the date of the Required Sale Notice, the
Requiring Parties must deliver another Required Sale Notice in order to exercise
their rights under this Section 2.7 with respect to such Transfer or any other
Transfer.
(c) The Company and the Purchaser each agree that any and all
Requiring Parties shall be third party beneficiaries of this Section 2.7.
3. Other Covenants of the Purchaser.
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3.1. Holdback Agreement.
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(a) The Purchaser hereby agrees that he or she will not sell,
transfer, make any short sale of, grant any option for the purchase of, or enter
into any hedging or similar transaction with the same economic effect as a sale,
regarding any Common Stock (or other securities) of the Company held by the
Purchaser (other than those included in the registration) for a period specified
by the representative of the underwriters of Common Stock (or other securities)
of the Company not to exceed one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act pursuant to which
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an Initial Public Offering is effected. The Company may impose stop-transfer
instructions with respect to the Common Stock (or other securities) subject to
the foregoing restriction until the end of said one hundred eighty (180) day
period. For the avoidance of doubt such agreement shall apply only to the
Initial Public Offering.
(b) The Purchaser agrees to execute and deliver such other
agreements as may be reasonably requested by the Company or the underwriter
which are consistent with the foregoing or which are necessary to give further
effect thereto.
3.2. Confidentiality. Purchaser will not at any time (whether during
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or after the Purchaser's employment with the Company or its Subsidiaries)
disclose, retain, or use for the Purchaser's own benefit, purposes or account or
the benefit, purposes or account of any other Person, other than the Company and
any of its Affiliates, any trade secrets, know-how, software developments,
inventions, formulae, technology, designs, databases and drawings, or any
property or confidential information of the Company or any of its Affiliates
relating to research, operations, finances, current and proposed products and
services, vendors, customers, advertising, costs, marketing, trading,
investment, sales activities, promotion or the business and affairs of the
Company generally, or of any Affiliate of the Company ("Confidential
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Information") without the written authorization of the Company; provided that
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the foregoing shall not apply to information which is not unique to the Company
or which is generally known to the industry or the public other than as a result
of the Purchaser's breach of this covenant or the wrongful acts of others who
were under confidentiality obligations as to the item or items involved. Except
as required by law, the Purchaser will not disclose to anyone, other than
Purchaser's immediate family and legal or financial advisors, the existence or
contents of this Agreement; provided that the Purchaser may disclose to any
prospective future employer the provisions of this Section 3.2 provided they
agree to maintain the confidentiality of such terms. The Purchaser agrees that
upon termination of the Purchaser's employment with the Company or its
Subsidiaries for any reason, the Purchaser will return to the Company
immediately all reports, memoranda, books, papers, plans, information, lists,
letters and other data, and all copies thereof or therefrom, in any way relating
to the business of the Company or any of its Affiliates, except that the
Purchaser may retain only those portions of personal notes, notebooks and
diaries that do not contain Confidential Information of the type described in
the preceding sentence. The Purchaser further agrees that the Purchaser will not
retain or use for the Purchaser's own benefit, purposes or account or the
benefit, purposes or account of any other Person, other than the Company and any
of its Affiliates, at any time any trade names, trademark, service xxxx,
Internet domain names, other proprietary business designation, patent, or other
intellectual property used or owned in connection with the business of the
Company or its Affiliates.
3.3. Assignment of Options Proceeds. The Purchaser will indicate on
------------------------------------
Row 3(A) or 4(A), as applicable, of Schedule I the assignment of options
proceeds only for those options that the Purchaser has validly tendered and not
withdrawn prior to the date hereof.
4. Miscellaneous.
-------------
4.1. Effectiveness; Termination. This Agreement will be effective
--------------------------------
upon receipt of a confirmatory e-mail from the Purchaser with respect to his or
her desire to purchase shares of Directly Owned Class A Common Stock following
the effectiveness of the Registration
11
Statement, provided that the Company has received from the Purchaser a copy of
this Agreement duly executed by the Purchaser and, if applicable, his or her
spouse, with a properly completed Schedule I attached, and will terminate with
respect to the provisions referred to below as follows: (i) with respect to
Article 2 (other than Sections 2.5 and 2.7), on the Lapse Date; (ii) with
respect to Sections 2.5 and 2.7, upon a Qualified Initial Public Offering; and
(iii) with respect to all Sections (including, without limitation, all of
Article 2) other than Sections 3.1 and 3.2 upon (A) the sale of all or
substantially all of the equity interests in the Company to a third party
resulting in a Change of Control, whether by merger, consolidation, share
exchange, tender offer or otherwise, (B) the closing of a Majority Sale (other
than Section 2.5(c), which shall survive such Majority Sale) resulting in a
Change of Control, or (C) the approval in writing by the Company and the
Purchaser.
4.2. Additional Shares. The Purchaser agrees that any other shares
-----------------------
of Directly Owned Class A Common Stock which he or she shall hereafter acquires
(including, without limitation, from Other Purchasers) by means of a stock
split, stock dividend, distribution, exercise of stock options, purchase,
acquisition or otherwise shall be subject to the provisions of this Agreement
(other than Article 1) to the same extent as if held on the date hereof. For the
avoidance of doubt, the foregoing sentence (i) shall not include, without
limitation, any shares of Class A Common Stock (A) held in the 401(k) Plan prior
to their distribution to the Purchaser pursuant to the terms of the 401(k) Plan
or (B) underlying stock fund units in the DCP Plan prior to their distribution
to the Purchaser pursuant to the terms of the DCP Plan, and (ii) shall include,
without limitation, shares of Class A Common Stock (A) distributed to the
Purchaser pursuant to the terms of the 401(k) Plan or the DCP Plan and (B)
Option Shares.
4.3. Third Party Beneficiaries. Except as set forth in Section
-------------------------------
2.7(c) hereto, no provision of this Agreement is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
4.4. Purchaser's Employment or Engagement by the Company. Nothing
---------------------------------------------------------
contained in this Agreement shall be deemed to obligate the Company or any of
its Subsidiaries to employ or engage the Purchaser in any capacity whatsoever or
to prohibit or restrict the Company (or any such subsidiary) from terminating
the employment or engagement, if any, of the Purchaser at any time or for any
reason whatsoever, with or without Cause.
4.5. Non-Assignability. This Agreement will inure to the benefit of
-----------------------
and be binding on the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by any party hereto
without the express prior written consent of the other party, and any attempted
assignment, without such consents, will be null and void; provided, however,
-------- -------
that the Company may assign this Agreement to one or more of its Affiliates
without such consent; provided, further, that with respect to any Person who
-------- -------
acquires any shares of Directly Owned Class A Common Stock from the Purchaser in
compliance with the terms hereof: (a) the Purchaser shall, prior to such
Transfer, furnish to the Company written notice of the name and address of such
transferee, and (b) if such transferee is not an Other Purchaser, the Purchaser
and such transferee shall execute and deliver to the Company prior to such
Transfer an Assumption Agreement in the form of Exhibit C hereto (the
"Assumption Agreement"), whereby the Purchaser and such transferee shall assume
--------------------
and be entitled to the rights and obligations under this Agreement to the extent
described in the Assumption Agreement.
12
4.6. No Inconsistent Agreements. The Purchaser shall not enter into
--------------------------------
any agreement or other arrangement of any kind with any Person with respect to
any Securities that is inconsistent with the provisions of this Agreement or
that may impair his or her ability to comply with this Agreement.
4.7. Amendment; Waiver. This Agreement may be amended only by a
-----------------------
written instrument signed by the parties hereto. No waiver by either party
hereto of any of the provisions hereof shall be effective unless set forth in a
writing executed by the party so waiving.
4.8. Governing Law; Jurisdiction. This Agreement shall be governed
---------------------------------
by and construed in all respects under the laws of the State of Delaware. Any
action to enforce which arises out of or in any way relates to any of the
provisions of this Agreement may be brought and prosecuted in such court or
courts located within the State of Delaware as provided by law, and the parties
consent to the jurisdiction of such court or courts located within the State of
Delaware and to service of process by registered mail, return receipt requested,
or by any other manner provided by Delaware law.
4.9. Notices. Any notices or communications permitted or required
-------------
hereunder shall be deemed sufficiently given if hand-delivered, or sent by (x)
registered or certified mail return receipt requested, (y) telecopy or other
electronic transmission service (to the extent receipt is confirmed other than
by automatic means) or (z) by overnight courier, in each case to the parties at
their respective addresses and telecopy numbers set forth below, or to such
other address of which any party may notify the other party in writing.
(a) If to the Company, to it at the following address:
CBRE Holding, Inc.
c/o CB Xxxxxxx Xxxxx Services, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xx Xxxxxxx, XX 00000-0000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
RCBA Strategic Partners, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
13
with another copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
(b) If to the Purchaser or to any Permitted Transferee, to him
or her at his or her address or telecopy number as set forth on the signature
page hereto, with respect to the Purchaser, or the applicable Assumption
Agreement, with respect to any Permitted Transferee.
4.10. Integration. This Agreement and the documents referred to
------------------
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
4.11. 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 shall constitute one and the same
instrument.
4.12. Injunctive Relief. The Purchaser, on behalf of himself or
------------------------
herself and his or her Permitted Transferees, and the Company, on its own behalf
and on behalf of its successors and assigns, each acknowledges and agrees that a
violation of any of the terms of this Agreement will cause the other irreparable
injury for which adequate remedy at law is not available. Accordingly, it is
agreed that the Company or the Purchaser, as the case may be, shall be entitled
to an injunction, restraining order or other equitable relief to prevent
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction in the United
States or any state thereof, in addition to any other remedy to which it or he
or she may be entitled at law or equity.
4.13. Severability. If one or more of the provisions, paragraphs,
-------------------
words, clauses, phrases or sentences contained herein, or the application
thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision, paragraph, word, clause, phrase or sentence in every other respect
and of the remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being intended that all
rights, powers and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
4.14. Rights to Negotiate. Nothing in this Agreement shall be deemed
--------------------------
to restrict or prohibit the Company from purchasing any Securities from the
Purchaser at any time upon such terms and conditions and at such price as may be
mutually agreed upon between the Company and the Purchaser, whether or not at
the time of such purchase circumstances exist
14
which specifically grant the Company the right to purchase, or the Purchaser the
right to sell, Securities pursuant to the terms of this Agreement.
4.15. Rights Cumulative; Waiver. The rights and remedies of the
--------------------------------
Purchaser and the Company under this Agreement shall be cumulative and not
exclusive of any rights or remedies which either would otherwise have hereunder
or at law or in equity or by statute, and no failure or delay by either party in
exercising any right or remedy shall impair any such right or remedy or operate
as a waiver of such right or remedy, nor shall any single or partial exercise of
any power or right preclude such party's other or further exercise or the
exercise of any other power or right. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by either party to exercise
any right or privilege hereunder shall be deemed a waiver of such party's rights
or privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
4.16. Interpretation. The words "hereof," "herein," and "hereunder"
--------------------- ------ ------ ---------
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified. The headings in this Agreement are included for
convenience of reference only and shall not limit or otherwise affect the
meaning or interpretation of this Agreement. The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of such
terms.
4.17. Shares Subject to the Incentive Plan and this Agreement. By
--------------------------------------------------------------
entering into this Agreement the Participant agrees and acknowledges that the
Participant has received a copy of the Incentive Plan. The shares of Directly
Owned Class A Common Stock purchased by the Purchaser pursuant to this Agreement
are subject to the Incentive Plan and this Agreement. In the event of a conflict
between any term or provision of the Incentive Plan and any term or provision of
this Agreement, the applicable terms and provisions of this Agreement will
govern and prevail.
4.18. Arbitration. Any dispute arising out of or relating to this
------------------
Agreement, including the breach, termination or validity hereof, shall be
exclusively and finally resolved by arbitration in accordance with the CPR Rules
for Non-Administered Arbitration by a sole arbitrator. The arbitration shall be
governed by the Federal Arbitration Act, 9 U.S.C. (S)(S) 1-16, and judgment upon
the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof. The place of the arbitration shall be Los Angeles,
California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CBRE HOLDING, INC.
By:________________________________
Name:
Title:
PURCHASER:
___________________________________
Name:
Address:
Fax Number:
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Employee
Subscription Agreement between CBRE Holding, Inc. and the Purchaser named
therein, I, ________________________________________________, the spouse of the
Purchaser named therein, do hereby join with my spouse in executing the
foregoing Employee Subscription Agreement and do hereby agree to be bound by all
of the terms and provisions thereof.
Dated as of ______________ ____, 2001 ________________________________
[Spouse]
SCHEDULE I
Name of Purchaser: ______________
Signature of Purchaser: ______________
Date: ______________
The Purchaser must fill in all of the blanks below (including filling
in a zero if applicable). All capitalized terms used in this Schedule I shall
have the meanings set forth in the Employee Subscription Agreement between the
Purchaser and the Company.
Subscription of Shares for Direct Ownership
-------------------------------------------
1. Number of shares of Directly Owned Class A Common Stock that
the Purchaser is subscribing for
==============
2. Total Purchase Price (equal to Row 1 multiplied by $16.00) $ ______________
Payment
-------
3. I want to assign the following proceeds that I would otherwise be entitled
to receive in the Merger:
[_] All of my Merger Proceeds; or
$__________of my Merger Proceeds
4. I want to assign the following proceeds, net of withholding tax, that I
would otherwise be entitled to receive in the offer to purchase options:
[_] All Options Proceeds
$__________of my Options Proceeds
Note: The Company will notify you if you must pay any New Cash
---- Consideration in order to satisfy the Total Purchase Price for the
shares you are subscribing for.
EXHIBIT A
DEFINITIONS
As used in this Agreement, terms defined in the headings shall have
their respective assigned meanings, and the following capitalized terms shall
have the meanings ascribed to them below:
"Affiliate" means, with respect to any Person, (i) any Person that
---------
directly or indirectly controls, is controlled by or is under common control
with, such Person, or (ii) any director, officer, partner or employee of such
Person or any Person specified in clause (i) above, or (iii) any spouse, parent,
child, step-child, grandchild, step-grandchild or sibling of any Person
specified in clause (i) or (ii) above. As used in this definition of
"Affiliate" and in this Agreement, "control" (including, with correlative
---------
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise.
Notwithstanding anything to the contrary stated herein, the Company and its
Subsidiaries shall not be considered Affiliates of RCBA Strategic.
"Agreement" means this Employee Subscription Agreement, as the same
---------
may be amended, supplemented or otherwise modified from time to time.
"Assigned Merger Proceeds" shall have the meaning ascribed to such
------------------------
term in Section 1.7(a) hereto.
"Assigned Options Proceeds" shall have the meaning ascribed to such
-------------------------
term in Section 1.7(b) hereto.
"Assumption Agreement" shall have the meaning ascribed to such term in
--------------------
Section 4.5 hereto.
"Board of Directors" means the Board of Directors of the Company.
------------------
"Business Day" means a day other than a Saturday, Sunday, holiday or
------------
other day on which commercial banks in New York City are authorized or required
by law to close.
"Cause" means (i) the willful failure of the Purchaser to perform his
-----
or her duties to the Company or its Subsidiaries which is not cured within 10
days following written notice, (ii) the conviction of the Purchaser of a felony,
(iii) willful malfeasance or misconduct by the Purchaser that is materially and
demonstrably injurious to the Company or its Subsidiaries, or (iv) the breach by
the Purchaser of the material terms of this Agreement, including, without
limitation, Section 2.1, 3.1 and 3.2.
"CB Xxxxxxx Xxxxx Services" means CB Xxxxxxx Xxxxx Services, Inc., a
-------------------------
Delaware corporation and a direct wholly owned subsidiary of the Company, and
shall also include its successors by means of a merger, consolidation,
reorganization, recapitalization or similar transaction.
"CB Xxxxxxx Xxxxx Services Common Stock" means the shares of common
--------------------------------------
stock of CB Xxxxxxx Xxxxx Services, $0.01 par value per share.
"CB Xxxxxxx Xxxxx Services Options" means any option to purchase CB
---------------------------------
Xxxxxxx Xxxxx Services Common Stock outstanding under any stock option or
compensation plan or arrangement of CB Xxxxxxx Xxxxx Services, whether or not
vested.
"Change of Control" means (i) the sale or disposition, in one or a
-----------------
series of related transactions, of all, or substantially all, of the assets of
the Company to any "person" or "group," as defined in Sections 13(d)(3) or
14(d)(2) of the Exchange Act (other than RCBA Strategic and its Affiliates,
Xxxxxxx Xxxxxx and their Affiliates or any group in which any of the foregoing
is a member); or (ii) or any person or group (other than RCBA Strategic and its
Affiliates, Xxxxxxx Xxxxxx and their Affiliates or any group in which any of the
foregoing is a member) is or becomes the beneficial owner, directly or
indirectly, of more than 50% of the total voting power of the voting stock of
the Company (including by way of merger, consolidation or otherwise) and the
representatives of RCBA Strategic and its Affiliates, Xxxxxxx Xxxxxx and their
Affiliates or any group in which any of the foregoing is a member, individually
or in the aggregate, cease to have the ability to elect a majority of the Board
of Directors.
"Class A Common Stock" means the Class A common stock, par value $.01
--------------------
per share, of the Company.
"Class B Common Stock" means the Class B common stock, par value $.01
--------------------
per share, of the Company.
"Closing" shall have the meaning ascribed to such term in Section 1.3
-------
hereto.
"Closing Date" shall have the meaning ascribed to such term in Section
------------
1.3 hereto.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor statute. Any reference herein to a particular
provision of the Code shall mean, where appropriate, the corresponding provision
in any successor statute.
"Common Stock" means the Class A Common Stock and Class B Common
------------
Stock, collectively.
"Common Stock Equivalents" means any stock, warrants, rights, calls,
------------------------
options or other securities exchangeable or exercisable for, or convertible
into, Common Stock.
"Company" shall have the meaning ascribed to such term in the preamble
-------
to this Agreement.
"Confidential Information" shall have the meaning ascribed to such
------------------------
term in Section 3.2 hereto.
"Contribution Agreement" means the Amended and Restated Contribution
----------------------
and Voting Agreement, dated as of May 31, 2001, by and among the Company,
Acquisition, RCBA Strategic, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxx and the
other parties thereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"Co-Sale Amount" shall have the meaning ascribed to such term in
--------------
Section 2.5(a) hereto.
"Cost" means the purchase price of $16.00 per share of Class A Common
----
Stock paid by the applicable Purchaser, as adjusted by the Board of Directors in
good faith and on a consistent basis to reflect any stock splits, stock
dividends, recapitalizations and other similar transactions.
"DCP Plan" means the Deferred Compensation Plan of CB Xxxxxxx Xxxxx
--------
Services.
"Designated Manager Subscription Agreement" means any of the
-----------------------------------------
Designated Manager Subscription Agreements entered into by an employee of the
Company and its Subsidiaries who was designated by the Board of Directors as a
designated manager in connection with the Offerings.
"DGCL" means the Delaware General Corporation Law, as amended from
----
time to time.
"Directly Owned Class A Common Stock" means any shares of Class A
-----------------------------------
Common Stock directly held of record by the Purchaser, whether acquired pursuant
to (i) this Agreement, (ii) the exercise of Options, (iii) the receipt of
distributions from the 401(k) Plan or the DCP Plan, (iv) purchase or other
acquisition from any Other Employee or Other Purchaser or (v) any other means
either on the date hereof or in the future.
"Effective Time" shall have the meaning ascribed to such term in the
--------------
Merger Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"Family Group" shall have the meaning ascribed to such term in Section
------------
2.2(a) hereto.
"401(k) Plan" means the Capital Accumulation Plan of CB Xxxxxxx Xxxxx
-----------
Services.
"Xxxxxxx Xxxxxx" means FS Equity Partners III, L.P. and FS Equity
--------------
Partners International, L.P., collectively.
"Good Reason" means (i) a substantial diminution in the Purchaser's
-----------
position or duties with the Company or its Subsidiaries, an adverse change in
the reporting lines of the Purchaser, or the assignment to the Purchaser by the
Company or its Subsidiaries of duties materially inconsistent with his or her
position with the Company or its Subsidiaries; (ii) any reduction in the
Purchaser's base salary or any material adverse change in the Purchaser's bonus
opportunity; or (iii) the failure of the Company or its Subsidiaries to pay the
Purchaser's compensation or benefits when due; in each of the foregoing clauses
(i) through (iii), which is not cured within 30 days following the Company's
receipt of written notice from the Purchaser describing the event that would
constitute Good Reason if not cured within such period.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof, and any entity exercising legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Incentive Plan" means the 2001 CBRE Holding, Inc. Stock Incentive
--------------
Plan.
"Initial Public Offering" means the first Public Offering occurring
-----------------------
after the date hereof.
"Lapse Date" means the earlier of (x) the tenth anniversary of the
----------
Closing Date and (y) the date that is 180 days after a Qualified Initial Public
Offering is consummated.
"Majority Sale" shall have the meaning ascribed to such term in
-------------
Section 2.5(a) hereto.
"Merger" shall have the meaning ascribed to such term in the Merger
------
Agreement.
"Merger Agreement" means the Amended and Restated Agreement and Plan
----------------
of Merger, dated May 31, 2001, among the Company, XXXX XX Corp. and CB Xxxxxxx
Xxxxx Services.
"Merger Proceeds" means the amount set forth in Row 3 of Schedule I
---------------
hereto.
"NASDAQ" means the National Association of Securities Dealers
------
Automated Quotation System National Market.
"New Cash Consideration" shall have the meaning ascribed to such term
----------------------
in Section 1.4(a)(ii) hereto.
"New Certificates" shall have the meaning ascribed to such term in
----------------
Section 1.3 hereto.
"Non-RCBA Strategic Party" means any Person other than RCBA Strategic
------------------------
or its Affiliates.
"Offerings" means the registered offerings to certain employees and
---------
independent contractors of the Company and its Subsidiaries pursuant to the
Company's Incentive Plan, which offerings include shares of Directly Owned Class
A Common Stock, shares of Class A Common Stock to be held in the 401(k) Plan,
and shares of Class A Common Stock underlying stock fund units held in the DCP
Plan.
"Old Certificates" shall have the meaning ascribed to such term in
----------------
Section 1.4(a)(iii) hereto.
"Options Payment Consent" means the form of Consent and Letter of
-----------------------
Transmittal previously distributed by, or on behalf of, CB Xxxxxxx Xxxxx
Services to each holder of CB Xxxxxxx Xxxxx Services Options, pursuant to which
each such holder is being requested to consent to the cancellation at the
Effective Time of all CB Xxxxxxx Xxxxx Services Options held by such holder as
of the Effective Time, in exchange for an amount per share of CB Xxxxxxx Xxxxx
Services Common Stock subject to such canceled CB Xxxxxxx Xxxxx Services Options
equal to the greater of (i) the excess, if any, of (A) $16.00 over (B) the
exercise price per share of CB Xxxxxxx Xxxxx Services Common Stock subject to
such canceled CB Xxxxxxx Xxxxx Services Options and (ii) $1.00, in each case
minus any applicable withholding taxes.
"Options Proceeds" means the amount set forth in Row 4 of Schedule I
----------------
hereto.
"Other Employee" means any of the employees and independent
--------------
contractors of the Company and its Subsidiaries other than the Purchaser.
"Other Purchaser" means any Other Employee that has (i) purchased
---------------
Class A Common Stock from the Company and is party to a Designated Manager
Subscription Agreement or an Employee Subscription Agreement or (ii) received
Class A Common Stock pursuant to the DCP Plan or 401(k) Plan and has properly
executed and delivered a Stockholder Agreement (as defined in the DCP Plan or
401(k) Plan) prior to such receipt.
"Ownership" means, with respect to any Person, all matters related to
---------
such Person's and such Person's Affiliates' (i) beneficial ownership of Common
Stock, (ii) due authorization of a Transfer of such Common Stock, (iii) power to
Transfer such Common Stock, and (iv) non-violation of agreements, laws, etc.
relating to such Transfer of such Common Stock.
"Permitted Transferee" shall have the meaning ascribed to such term in
--------------------
Section 2.2(a) hereto.
"Person" means any individual, corporation, limited liability company,
------
partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, Governmental Authority or other entity of any nature
whatsoever.
"Proposed Transferee" shall have the meaning ascribed to such term in
-------------------
Section 2.5(a) hereto.
"Prospectus" means the prospectus included in the Registration
----------
Statement filed by the Company.
"Public Offering" means an underwritten offering of Securities to the
---------------
public pursuant to an effective registration statement filed under the
Securities Act.
"Purchaser" shall have the meaning ascribed to such term in the
---------
preamble to this Agreement.
"Purchasing Party" shall have the meaning ascribed to such term in
----------------
Section 2.7(a) hereto.
"Qualified Initial Public Offering" shall mean a Public Offering after
---------------------------------
the Effective Time pursuant to which the Class A Common Stock becomes listed on
a national securities exchange or on the NASDAQ.
"RCBA Strategic" means RCBA Strategic Partners, L.P., a Delaware
--------------
limited liability company, together with its successors.
"Registration Statement" means the Registration Statement on Form S-1
----------------------
filed with the SEC by the Company in connection with the Offerings.
"Regulations" means the regulations promulgated under the Code.
-----------
"Required Sale Notice" shall have the meaning ascribed to such term in
--------------------
Section 2.7(b) hereto.
"Requiring Parties" shall have the meaning ascribed to such term in
-----------------
Section 2.7(a) hereto.
"Securities" means (i) shares of Common Stock, (ii) Common Stock
----------
Equivalents and (iii) other securities of the Company other than debt securities
that are not Common Stock Equivalents.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"SEC" means the Securities and Exchange Commission.
---
"Stockholders" means RCBA Strategic, Xxxxxxx Xxxxxx, the Purchaser,
------------
the Other Purchasers and all of the other holders of Common Stock.
"Stock Power" shall have the meaning ascribed to such term in Section
-----------
1.4(a)(iii) hereto.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, association or other business entity of which fifty percent (50%)
or more of the total voting power of shares of capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof, or fifty percent (50%) or more of the
equity interest therein, is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of such
Person or a combination thereof.
"Total Purchase Price" shall have the meaning ascribed to such term in
--------------------
Section 1.1(a) hereto.
"Transfer" means any transfer, sale, assignment, distribution,
--------
exchange, mortgage, pledge, hypothecation or other disposition of any Securities
or any interest therein, including transfers by operation of law in connection
with a merger transaction or otherwise.
"Transferring Stockholders" shall have the meaning ascribed to such
-------------------------
term in Section 2.5(a) hereto.
EXHIBIT B
FORM OF STOCK POWER
FOR VALUE RECEIVED, ____________________________________________________________
hereby sell(s), assign(s) and transfer(s) unto__________________________________
________________________________________________________________________________
________________________________________________________________________________
(_______) Shares of the ____________ Stock of __________________ standing in my
(our) name(s) on the books of said Corporation represented by Certificate(s)
No(s). _________________________________________________________________________
herewith, and do(es) hereby irrevocably constitute and appoint _________________
attorney to transfer the said stock on the books of said Corporation with full
power of substitution in the premises.
Dated: ___________________________
______________________________
[Purchaser]
EXHIBIT C
FORM OF ASSUMPTION AGREEMENT
[DATE]
CBRE Holding, Inc.
c/o CB Xxxxxxx Xxxxx Services, Inc.
000 Xxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxxx, XX 00000-0000
Attention: General Counsel
Dear Sir or Madam:
Reference is made to the Employee Subscription Agreement, dated as of
_________ ___, 2001 (the "Employee Subscription Agreement"), between CBRE
Holding, Inc. and the undersigned Purchaser. All capitalized terms not
otherwise defined herein shall have the meanings given to them in the Employee
Subscription Agreement.
In consideration of the representations, covenants and agreements contained
in the Employee Subscription Agreement, the undersigned Permitted Transferee
hereby confirms and agrees that he or she shall be bound by the following
provisions thereof as if such Permitted Transferee were a Purchaser: Articles
2, 3 and 4.
Notwithstanding anything to the contrary stated herein or in the Employee
Subscription Agreement, the Purchaser shall remain bound by, and subject to,
each of the provisions of the Employee Subscription Agreement in accordance with
the terms thereof.
This Assumption Agreement will be governed by, and construed in accordance
with, the laws of the State of Delaware applicable to contracts executed and to
be performed entirely within that state.
Very truly yours,
PERMITTED TRANSFEREE:
_____________________________________
Name:
Address:
Fax Number:
PURCHASER:
_____________________________________
Name:
