Exhibit 2.
AMENDED AND RESTATED CONTRIBUTION AND VOTING AGREEMENT
AMENDED AND RESTATED CONTRIBUTION AND VOTING AGREEMENT,
dated as of May 31, 2001 (this "Agreement"), among CBRE Holding,
Inc., 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"), those other
investors who are signatories to this agreement (collectively
with Xxxxx and White, the "Other Investors") and Xxxxxx X. Xxxx
("Xxxx"). 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, Newco has entered into an Agreement and Plan
of Merger, dated as of February 23, 2001 (as amended, the "Merger
Agreement"), 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 financing of the Merger
and the related transactions, Newco is offering for issuance and
sale $229 million aggregate principal amount of its senior
subordinated notes (the "Newco Senior Subordinated Notes") and,
upon the closing of such offering, the proceeds from such
issuance and sale (the "Senior Subordinated Notes Proceeds") will
be deposited in an escrow account, together with an additional
amount of cash (the "Pre-Funded Interest") sufficient to pay
the special mandatory redemption price for the Newco Senior
Subordinated Notes as described in the Preliminary Confidential
Offering Circular used in connection with the offering of the
Newco Senior Subordinated Notes;
WHEREAS, in connection with the financing of the
Merger and the related transactions, Holding is offering for
issuance and sale at least 3,236,613 shares of Class A common
stock, par value $.01 per share ( "Holding Class A Common Stock"),
of Holding (including shares underlying stock fund units in the
CB Xxxxxxx Xxxxx Services, Inc. Deferred Compensation Plan) to
eligible employees and independent contractors of CBRE (the
"Employee Offering");
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");
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"); and
WHEREAS, the parties to this Agreement previously
entered into a Contribution and Voting Agreement, dated as of
February 23, 2001 (the "Original Agreement"), and this Agreement
constitutes an amendment and restatement of the Original
Agreement.
NOW, THEREFORE, in consideration of the mutual
covenants and conditions as hereinafter set forth, the parties
hereto do hereby agree as follows:
I 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 3,423,886 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 $40.9 million to approximately $92.6
million (as determined by Holding no less than twelve business
days prior to the Contribution Closing, which amount shall be
equal to approximately $92.6 million minus (A) the total number
of shares of Class A common stock and stock fund units in the CB
Xxxxxxx Xxxxx Services, Inc. Deferred Compensation Plan
subscribed for in the Employee Offering multiplied by $16.00,
minus (B) the amount of the Pre-Funded Interest Contribution,
minus (C) the amount of the Initial XXXX Contribution, plus (D)
the aggregate amount of full-recourse notes delivered to Holding
as consideration for shares of Class A common stock subscribed
for in the Employee Offering) 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) 3,423,886 shares of
Class B common stock, par value $.01 per share ("Holding Class B
Common Stock"), of Holding in exchange for the XXXX Stock
Contribution and (b) a number of shares of Holding Class B 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 Class B 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 Class B 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, an
"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 Class B 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.
II 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 common stock, par value $.01
per share ("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 (such initial contribution, in the aggregate, the
"Initial XXXX Contribution")). 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 Class B 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 Class B Common Stock, (iv)
understands that no public market now exists for the Holding
Class B Common Stock and there is no assurance that a pubic
market will ever exist for the Holding Class B Common Stock and
(v) understands that the Holding Class B 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 Class B Common Stock or an available exemption from
registration under the Securities Act, the Holding Class B 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 Class B Common Stock following the Contribution
Closing.
III 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.
IV 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, and each of XXXX and Xxxxxxx Xxxxxx hereby
consents to all amendments to the Merger Agreement that have
occurred on or prior to the date hereof. 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 (i) create three classes of Holding capital stock
consisting of Holding Class B Common Stock and Holding Class A
Common Stock, (ii) authorize a total number of shares of Holding
Class B Common Stock and Holding Class A Common Stock and
Acquiror Common Stock, respectively, that are sufficient to
permit the consummation of the transactions contemplated hereby
and by the Merger Agreement and (iii) elect for Holding not to be
governed by Section 203 of the General Corporation Law of the
State of Delaware. In connection with such amendment of the
certificate of incorporation of Holding, each share of
outstanding Holding Common Stock on the date thereof shall be
exchanged for one share of Holding Class B Common Stock.
4.2. Issuance of Shares for Pre-Funded Interest; Financing
Documents.
(a) The parties hereto acknowledge and agree that, in the
event that the offering of the Newco Senior Subordinated Notes shall
be consummated, in connection with such consummation Holding will
issue and sell to XXXX or its affiliate, in consideration for a
cash contribution to Holding equal to the Pre-Funded Interest
(the "Pre-Funded Interest Contribution"), a number of shares of
Holding Class B Common Stock equal to (i) the amount of the Pre-
Funded Interest divided by (ii) $16.00 (the "Pre-Funded Interest
Shares"). Holding shall contribute the Pre-Funded Interest
Contribution to Newco in exchange for the issuance and sale to
Holding of a number of shares of Acquiror Common Stock equal to
(x) the Pre-Funded Interest Contribution divided by (y) $16.00.
(b) The parties hereto acknowledge and agree that Holding
will have sole discretion with respect to the negotiation of
definitive debt financing documents with CSFB and DLJ (or any
other lending person) and any supporting lenders (i) based upon
the Debt Financing Documents and (ii) in connection with the
offering of the Newco Senior Subordinated Notes.
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 4.4(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, Xxxx and
The Xxxx Holding Company ("TKHC") agrees that at the time of the
closing under the Merger Agreement, the warrants to acquire
84,988 shares of CBRE Common Stock beneficially owned by Xxxxx,
Xxxx or TKHC (which total includes warrants to acquire 55,936
shares of CBRE Common Stock beneficially owned by each of Xxxxx,
Xxxx and TKHC 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, TKHC, Xxxxx 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 Class B Common Stock prior to and including the
Contribution Closing.
V 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.
(c) If to Xxxx, to him at the address for TKHC 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. Amendment. No amendment, modification or supplement to this
Agreement shall be enforced against any party hereto unless such
amendment, modification or supplement is in writing and signed by
Holding and such party.
5.5. 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.
5.6. 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.
5.7. 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.
5.8. Amendment and Restatement; Effectiveness of Representations
and Warranties and Agreements.
(a) This Agreement amends certain provisions
of the Original Agreement and restates the terms of the Original
Agreement in their entirety so as to reflect and give effect to
such amendments. All amendments to the Original Agreement
effected by this Agreement, and all other covenants, agreements,
terms and provisions of this Agreement, shall have effect from
the date of the Original Agreement.
(b) Each of the representations and warranties
of each party hereto made in this Agreement shall be deemed
(i) to be made on the date of the Original Agreement and as of
the Contribution Closing and (ii) not made on the date hereof.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
CBRE HOLDING, INC.
By: /s/ Claus X. Xxxxxx
-------------------------------
Name: Claus X. Xxxxxx
Title: President
XXXX XX CORP.
By: /s/ Claus X. Xxxxxx
-------------------------------
Name: Claus X. Xxxxxx
Title: President
RCBA STRATEGIC PARTNERS, L.P.
By: RCBA GP, L.L.C., its general
partner
By: /s/ Claus X. Xxxxxx
-------------------------------
Name: Claus X. Xxxxxx
Title: Member
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
-------------------------------
Xxxxxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx Xxxxx
-------------------------------
W. Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among CBRE Holding, Inc., 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, W. Xxxxx Xxxxx and
Xxxxxx X. Xxxx, I, ___Kathi Koll________________, 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 May 31, 2001 /s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among CBRE Holding, Inc., 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, W. Xxxxx Xxxxx and
Xxxxxx X. Xxxx, I, ____M. Malek___________________, 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 May 31, 2001 /s/ X. Xxxxx
-------------------------------
X. Xxxxx
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among CBRE Holding, Inc., 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, W. Xxxxx Xxxxx and
Xxxxxx X. Xxxx, I, __/s/ Xxxxxx Wirta________________, 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 May 31, 2001 /s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among CBRE Holding, Inc., 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, W. Xxxxx Xxxxx and
Xxxxxx X. Xxxx, I, ___Danielle White______________, 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 May 31, 2001 /s/ Xxxxxxxx Xxxxx
-------------------------------
Xxxxxxxx Xxxxx
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 58,575
Xxxxxxxx X. Xxxxx 397,873
The Xxxx Holding Company 734,290(1)
-----------------
(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
Securityholders' Agreement
Exhibit B
Warrant Agreement
