PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
---------
December 12, 2001 is by and between Catellus Development Corporation, a Delaware
corporation ("Catellus"), and California Public Employees' Retirement System, a
--------
government employee pension fund, which is a unit of the State and Consumer
Services Agency of the State of California ("CalPERS").
-------
WHEREAS, CalPERS is the beneficial owner of 18,782,276 shares
of Catellus common stock, par value $.01 per share ("Common Stock"), of which
CalPERS desires to sell and Catellus desires to purchase 10,600,000 of such
shares (the "Catellus Shares") subject to the terms described herein;
---------------
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, agreements and warranties herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Purchase and Sale. Subject to the terms and upon the
-----------------
conditions herein set forth, Catellus agrees to purchase and CalPERS
agrees to sell on the Closing Date (as hereinafter defined) the
Catellus Shares, free and clear of all liens, encumbrances, claims and
security interests, in exchange for the delivery by Catellus to
CalPERS of an aggregate amount equal to $183,120,300 (the "Purchase
--------
Price") in immediately available funds, payable by wire transfer;
-----
2. Representations and Warranties of Catellus. Catellus hereby
------------------------------------------
represents and warrants to CalPERS as follows:
(a) Due Organization. Catellus is duly organized,
----------------
validly existing and in good standing under the laws
of the State of Delaware.
(b) Authorization. Catellus has the requisite corporate
-------------
power to enter into this Agreement and the
transactions and agreements contemplated hereby and
to carry out its obligations hereunder. This
Agreement has been duly authorized, executed and
delivered by Catellus and constitutes a valid and
binding agreement enforceable against Catellus in
accordance with its terms. Neither the execution and
delivery of this Agreement, the consummation of the
transactions and agreements contemplated hereby, nor
compliance with the terms, conditions or provisions
of this Agreement will be a violation of any
provision of law applicable to Catellus; of any of
the terms, conditions or provisions of Catellus'
Restated Certificate of Incorporation, as amended, or
bylaws or of any material agreement or instrument to
which it or one of its subsidiaries is a party or by
which it or one of its subsidiaries or its or their
material properties may be bound, or constitute a
default or create a right of termination or
acceleration thereunder, except for any such
violation, default or right of termination or
(Page 6 of 15 pages)
acceleration which has been waived or consented to in
connection with the transactions contemplated hereby.
The Board of Directors of Catellus has duly approved
this Agreement and the transactions contemplated
hereby. No consent, approval, authorization, or order
of, or qualification with, any governmental body or
agency is required for the performance of any of
Catellus' obligations hereunder.
(c) Common Stock Outstanding. As of November 30, 2001,
------------------------
Catellus had issued and outstanding 97,155,082 shares
of Common Stock, and Catellus has not repurchased any
shares of its Common Stock since November 30, 2001
through the date hereof. From November 1, 2001
through the date hereof, the Company has not sold any
shares of its Common Stock, other than shares of
Common Stock issued or issuable upon exercise of
stock options.
(d) Disclosure of Information. Catellus is not currently
-------------------------
engaged in any discussions or negotiations regarding
a sale of all or substantially all of the assets of
Catellus, or a merger, consolidation or other
business combination involving Catellus in which the
shareholders of Catellus would own less than 50% of
the surviving entity, nor does Catellus have any
current plan or intention to engage in any such
discussions or negotiations.
3. Representations and Warranties of CalPERS. CalPERS hereby
-----------------------------------------
represents and warrants to Catellus as follows:
(a) Due Organization. CalPERS is duly organized and
----------------
validly existing under the laws of the State of
California.
(b) Authorization. CalPERS has the requisite power to
-------------
enter into this Agreement and the transactions and
agreements contemplated hereby and to carry out its
obligations hereunder and thereunder. This Agreement
has been duly authorized, executed and delivered by
CalPERS and constitutes a valid and binding agreement
of CalPERS enforceable against CalPERS in accordance
with its terms. Neither the execution and delivery of
this Agreement, consummation of the transactions and
agreements contemplated hereby, nor compliance with
the terms, conditions or provisions of this
Agreement, will be a violation of any provision of
law applicable to CalPERS; of any statutes governing
the organization and operation of CalPERS; or of any
material agreement or instrument to which CalPERS is
a party or by which CalPERS or any of its material
properties may be bound, or constitute a default or
create a right of termination or acceleration
thereunder, except for any such violation, default or
right of termination or acceleration which has been
waived or consented to in connection with the
transactions contemplated hereby. The Board of
Administration of CalPERS has duly approved this
Agreement and the transactions contemplated hereby.
No consent,
(Page 7 of 15 pages)
approval, authorization, or order of or qualification
with, any governmental body or agency is required for
the performance of any of CalPERS' obligations
hereunder.
(c) Title. CalPERS owns the Catellus Shares free and
-----
clear of all liens, encumbrances, claims and security
interests.
(d) Ownership. CalPERS is the sole beneficial owner of
---------
the Catellus Shares and the Remaining Shares. To its
knowledge, the Catellus Shares and the Remaining
Shares are the only securities of Catellus
beneficially owned by CalPERS, and from November 1,
2001 to the date hereof, CalPERS has not purchased
any shares of the Catellus Common Stock. For purposes
of this Section 3(d), the term "knowledge" shall be
deemed limited to the actual knowledge of Xxxxxxx
XxXxxx and Xxxx Xxxxxxxx.
4. Public Announcements. The parties hereto will consult with
--------------------
each other before issuing, and provide each other with the
reasonable opportunity to review and comment upon, any press release
or other written public statements with respect to the transactions
contemplated by this Agreement, and shall not issue any such press
release or make any such public statement without the reasonable
consent of the other party, except as may be required by applicable
law, rule or regulation, by court process or by obligations pursuant
to any listing agreement with any national securities exchange or
transaction reporting system so long as the other party is notified
promptly by the disclosing party of such press release or public
statement. For the avoidance of doubt, the parties acknowledge that
CalPERS will be filing, with respect to these transactions, an
amendment to its report on Schedule 13D, and Catellus will be
filing, with respect to these transactions, a Current Report on Form
8-K.
5. Closing. Subject to the satisfaction of the conditions set
-------
forth in Section 6 and Section 7, the purchase and sale of the Catellus
Shares (the "Closing") shall occur at 10:00 am (Pacific time) on
-------
December 14, 2001, or on such later date as shall be agreed upon by
Catellus and CalPERS as soon as reasonably practicable thereafter (such
date being the "Closing Date"). The Closing shall take place at the
------------
offices of Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, at which time the parties shall make the
deliveries described below, in addition to any other documents required
to be delivered under this Agreement.
(a) Deliveries by Catellus. At the Closing, Catellus
----------------------
shall deliver or cause to be delivered the following
to CalPERS:
(1) $183,120,300 by wire transfer of
immediately available funds to the account
specified by CalPERS;
(2) a certificate of Catellus' secretary
certifying resolutions of the Board of
Directors of Catellus approving this
Agreement and the transactions contemplated
hereby (together with an incumbency
(Page 8 of 15 pages)
(3) and signature certificate regarding the
officer(s) signing on behalf of Catellus); a
certificate, dated the Closing Date, of an
executive officer of Catellus, certifying
that, as of such date, the representations
and warranties of Catellus contained herein
are accurate, true and correct with the same
force and effect as though made on and as of
such date; and
(4) certificates representing the Remaining
Shares.
(b) Deliveries by CalPERS. At or prior to the Closing,
---------------------
CalPERS shall deliver or cause to be delivered the
following:
(1) At least two business days prior to the
Closing, (i) a copy of the certificate or
certificates representing the 18,782,276
shares of Common Stock owned by CalPERS
shall be delivered to American Stock
Transfer & Trust Company, accompanied by an
executed stock power with respect to the
Catellus Shares; and (ii) the names and
denominations of the Remaining Shares;
(2) On or prior to the Closing, an actual
certificate or certificates representing the
18,782,276 shares of Common Stock owned by
CalPERS shall be delivered to American Stock
Transfer & Trust Company, accompanied by an
executed stock power with respect to the
Catellus Shares;
(3) a certificate of an executive officer of
CalPERS certifying delegation resolutions of
the Board of Administration of CalPERS
approving this Agreement and the
transactions contemplated hereby (together
with an incumbency and signature certificate
regarding the officer(s) signing on behalf
of CalPERS) to Catellus; and
(4) a certificate, dated the Closing Date, of an
executive officer of CalPERS, certifying
that, as of such date, the representations
and warranties of CalPERS contained herein
are accurate, true and correct with the same
force and effect as though made on and as of
such date to Catellus.
6. Conditions to the Obligations of Catellus. The obligations of
-----------------------------------------
Catellus under this Agreement are subject to the fulfillment of each of
the following conditions:
(a) Performance. CalPERS shall have performed and
-----------
complied in all material respects with all
agreements, covenants, obligations and conditions
required by this Agreement to be performed or
complied with by it.
(Page 9 of 15 pages)
(b) Injunctions. No preliminary or permanent injunction
or other final order by any United States federal or
state court shall have been issued which prevents the
consummation of the transactions contemplated hereby.
7. Conditions to the Obligations of CalPERS. The obligations of
----------------------------------------
CalPERS under this Agreement are subject to the fulfillment of each of
the following conditions:
(a) Performance. Catellus shall have performed and
-----------
complied in all material respects with all
agreements, covenants, obligations and conditions
required by this Agreement to be performed or
complied with by it.
(b) Injunctions. No preliminary or permanent injunction
-----------
or other final order by any United States federal or
state court shall have been issued which prevents the
consummation of the transactions contemplated hereby.
8. Termination of Existing Agreements. Effective upon the
----------------------------------
Closing, the Existing Agreements (as defined below) shall terminate
without any further action by the parties hereto or thereto and all
rights and obligations arising out of, or related to any of the
Existing Agreements shall terminate and neither CalPERS nor the Company
shall have any obligations or rights thereunder to the other party
thereto on or after the Closing Date. "Existing Agreements" shall mean:
-------------------
(i) the Agreement dated as of January 14, 1993, as amended by Amendment
No. 1 to Agreement dated as of February 4, 1993, between Catellus and
Bay Area Real Estate Investment Associates L.P. (predecessor in
interest of CalPERS) ("BAREIA"), (ii) the Stockholders Agreement dated
------
as of January 29, 1993 among BAREIA, Olympia & York SF Holding
Corporation ("Olympia"), Itel Corporation ("Itel") and Catellus,
------- ----
(iii) the Standby Stockholders Agreement dated as of February 4, 1993
among BAREIA, Itel and Catellus and (iv) the Stock Subscription
Agreement between BAREIA and Santa Fe Pacific Realty Corporation
("Santa Fe") dated as of November 13, 1989, as amended by Amendment
--------
No. 1 to Stock Subscription Agreement dated as of December 29, 1989,
between BAREIA and Santa Fe.
9. Removal of Legend. Upon the satisfaction of the following
-----------------
condition, Catellus shall instruct the transfer agent to remove any
restrictive legend from any certificate or certificates representing
the 8,182,276 shares of Common Stock owned by CalPERS immediately after
the Closing (the "Remaining Shares") and to issue a certificate (which
----------------
may be the certificate referred to in Section 5(a)(4) above)
representing the Remaining Shares in the name of CalPERS or its
nominee: Catellus and its transfer agent shall have received a written
opinion of outside counsel to CalPERS in the form attached hereto as
Exhibit A.
10. Survival. The representations and warranties of the parties
--------
shall survive the Closing forever.
11. Indemnification.
---------------
(a) Each party (the "Indemnifying Party") agrees to
------------------
indemnify the other party, and each of their
affiliates and their respective officers, directors,
employees, agents and representatives (each, an
"Indemnified Party" and together the "Indemnified
----------------- -----------
Parties") against, and agrees to hold each of them
-------
harmless from, any and all liabilities, losses,
costs, claims, damages,
(Page 10 of 15 pages)
penalties and expenses (including, without
limitation, reasonable attorneys' fees and expenses
and costs of investigation and litigation) ("Losses")
------
(i) incurred or suffered by them relating to or
arising out of or in connection with any breach of or
any inaccuracy in any representation or warranty made
by the Indemnifying Party in this Agreement or any
document delivered by it at the Closing pursuant to
Section 5 hereof or (ii) arising out of or in
connection with any action, suit, inquiry, or
proceeding against or involving any Indemnified Party
as a result of any Indemnifying Party's actions (or
lack thereof) in connection with the negotiation or
execution of this Agreement or any of the
transactions contemplated hereby, or based upon any
allegation or claim that the Indemnified Party is in
any way responsible or liable for any action (or lack
thereof) of the Indemnifying Party. No person shall
be entitled to indemnification hereunder to the
extent that the act or omission of such person for
which indemnification is claimed arises out of such
person's fraud, bad faith or willful misconduct.
(b) As soon as is reasonably practicable after becoming
aware of a claim for indemnification under this
Agreement, the Indemnified Party shall promptly give
notice to the Indemnifying Party of such claim and
the amount the Indemnified Party will be entitled to
receive hereunder from the Indemnifying Party;
provided that the failure of the Indemnified Party to
give notice shall not relieve the Indemnifying Party
of its obligations hereunder except to the extent (if
any) that the Indemnifying Party shall have been
prejudiced thereby. If the Indemnifying Party agrees
that it has an indemnification obligation but objects
that it is obligated to pay only a lesser amount, the
Indemnified Party shall nevertheless be entitled to
recover promptly from the Indemnifying Party the
lesser amount, without prejudice to the Indemnified
Party's claim for the difference.
(c) After receiving a claim as set forth above, the
Indemnifying Party may, at its own expense,
(i) participate in the defense of any claim, suit,
action or proceeding and (ii) except in the case of a
claim indemnification for which is available pursuant
to clause (ii) of paragraph (a) above, as to which
this clause (ii) shall be inapplicable, upon notice
to the Indemnified Party and the Indemnifying Party's
delivering to the Indemnified Party a written
agreement that the Indemnified Party is entitled to
indemnification for all Losses arising out of such
claim, suit, action or proceeding, assume the defense
thereof; provided, however, that (x) the Indemnifying
Party's counsel is reasonably satisfactory to the
Indemnified Party, and (y) the Indemnifying Party
shall thereafter consult with the Indemnified Party
upon the Indemnified Party's reasonable request for
such consultation from time to time with respect to
such claim, suit, action or proceeding. If the
Indemnifying Party assumes such defense, the
Indemnified Party shall have the right (but not the
duty) to participate in the defense thereof and to
employ counsel, at its own expense, separate from the
counsel employed by the Indemnifying Party. If,
however, the Indemnified Party reasonably
(Page 11 of 15 pages)
determines in its judgment that representation by the
Indemnifying Party's counsel of both the Indemnifying
Party and the Indemnified Party would present such
counsel with a conflict of interest, then such
Indemnified Party may employ separate counsel to
represent or defend it in any such claim, action,
suit or proceeding and the Indemnifying Party shall
pay the reasonable fees and disbursements of such
separate counsel. Whether or not the Indemnifying
Party chooses to defend or prosecute any such claim,
suit, action or proceeding, all of the parties hereto
shall cooperate in the defense or prosecution
thereof.
(d) Notwithstanding anything in this Section 11 to the
contrary, neither the Indemnifying Party nor the
Indemnified Party shall, without the written consent
of the other, settle or compromise any claim or
permit a default or consent to entry of any judgment
unless the claimant and such party provide to such
other party an unqualified release from all liability
in respect of such claim. Notwithstanding the
foregoing, if a settlement offer solely for money
damages is made by the applicable third party
claimant, and the Indemnifying Party notifies the
Indemnified Party in writing of the Indemnifying
Party's willingness to accept the settlement offer
and pay the amount called for by such offer, and the
Indemnified Party declines to accept such offer, the
Indemnified Party may continue to contest such claim,
free of any participation by the Indemnifying Party,
and the amount of any ultimate liability with respect
to such claim that the Indemnifying Party has an
obligation to pay hereunder shall be limited to the
lesser of (i) the amount of the settlement offer that
the Indemnified Party declined to accept or (ii) the
aggregate Losses of the Indemnified Party with
respect to such claim. If the Indemnifying Party
makes any payment on any claim, the Indemnifying
Party shall be subrogated, to the extent of such
payment, to all rights and remedies of the
Indemnified Party to any insurance benefits or other
claims of the Indemnified Party with respect to such
claim.
(e) In the event that the Indemnifying Party does not
elect to assume the defense of any claim, suit,
action or proceeding, then any failure of the
Indemnified Party to defend or to participate in the
defense of any such claim, suit, action or proceeding
or to cause the same to be done, shall not relieve
the Indemnifying Party of its obligations hereunder.
12. Successors and Assigns. This Agreement shall be binding upon,
----------------------
and inure to the benefit of, the parties hereto and their respective
heirs, personal representatives, successors, assigns and affiliates.
13. Notices. Any notice or other communication provided for herein
-------
or given hereunder to a party hereto shall be in writing and shall be
given by delivery, by telex, telecopier or by mail (registered or
certified mail, postage prepaid, return receipt requested) to the
respective parties as follows:
(Page 12 of 15 pages)
If to Catellus:
Catellus Development Corporation
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: C. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to CalPERS:
California Public Employees' Retirement System
Lincoln Plaza
000 "X" Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx XxXxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxx X. Xxx
Facsimile: (000) 000-0000
or to such other address with respect to a party as such party shall
notify the other in writing.
14. Waiver. No party may waive any of the terms or conditions of
------
this Agreement, nor may this Agreement be amended or modified, except
by a duly signed writing referring to the specific provision to be
waived, amended or modified.
15. Entire Agreement. This Agreement constitutes the entire
----------------
agreement with respect to the subject matter hereof, and supersedes all
other prior agreements and understandings, both written and oral, among
the parties hereto and their affiliates.
(Page 13 of 15 pages)
16. Expenses. Regardless of whether the transactions contemplated
--------
hereby are consummated, each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
17. Captions. The Section and Paragraph captions herein are for
--------
convenience of reference only, do not constitute part of this Agreement
and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
18. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
19. Governing Law. This Agreement shall be governed by, and
-------------
construed and enforced in accordance with, the laws of the State of
Delaware.
20. No Presumption Against Drafter. Each of the parties hereto has
------------------------------
jointly participated in the negotiation and drafting of this Agreement.
In the event of an ambiguity or a question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by each
of the parties hereto and no presumptions or burdens of proof shall
arise favoring any party by virtue of the authorship of any of the
provisions of this Agreement.
(Page 14 of 15 pages)
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the day and year first
executed.
CATELLUS DEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Rising
_______________________________
Name: Xxxxxx X. Rising
Title: Chairman & Chief Executive Officer
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: /s/ Xxxxxxx XxXxxx
_________________________________
Name: Xxxxxxx XxXxxx
Title: Senior Investment Officer - Real Estate
(Page 15 of 15 pages)
