Exhibit 2
EXECUTION COPY
CONTRIBUTION AND VOTING AGREEMENT
CONTRIBUTION AND VOTING AGREEMENT, dated as of February 23,
2001 (this "Agreement"), among XXXX XX Holding Corp., a Delaware
corporation ("Holding"), XXXX XX Corp., a Delaware corporation and wholly
owned subsidiary of Holding ("Newco"), RCBA Strategic Partners, L.P., a
Delaware limited partnership (together with its respective permitted
assigns as provided herein, "XXXX"), FS Equity Partners III, L.P., a
Delaware limited partnership ("FSEP"), and FS Equity Partners
International, L.P., a Delaware limited partnership ("FSEP
International", and together with FSEP, "Xxxxxxx Xxxxxx"), Xxxxxxx X.
Xxxxx ("Xxxxx"), W. Xxxxx Xxxxx ("White") and those other investors who
are signatories to this agreement (collectively with Xxxxx and White, the
"Other Investors"). XXXX, Xxxxxxx Spogli and the Other Investors are
herein collectively referred to as the "Investors." Unless expressly
provided otherwise in this Agreement, capitalized terms defined in the
Merger Agreement when used in this Agreement shall have the same meanings
set forth in the Merger Agreement (defined below).
WHEREAS, concurrently with the execution and delivery of this
Agreement, Newco has entered into a Merger Agreement (the "Merger
Agreement") dated as of the date hereof with CB Xxxxxxx Xxxxx Services,
Inc., a Delaware corporation ("CBRE"), pursuant to which and subject to
the terms and conditions thereof, Newco shall merge with and into CBRE
(the "Merger"), such that CBRE shall thereafter be a wholly owned
subsidiary of Holding;
WHEREAS, in connection with the consummation of the Merger and
the receipt by the Investors of common stock of Holding, each of the
Investors shall become parties to a stockholders' agreement in the form
attached hereto as Exhibit A (the "Securityholders' Agreement");
WHEREAS, in connection with the execution of the Merger
Agreement, Newco has received certain financing agreements and documents
from Credit Suisse First Boston ("CSFB") and DLJ Investment Funding, Inc.
("DLJ") with respect to the provision of debt financing to effect the
Merger (the "Debt Financing Documents"); and
WHEREAS, the parties hereto desire to make certain agreements,
representations, warranties and covenants in connection with the Merger,
the Merger Agreement, the Securityholders' Agreement, the Debt Financing
Documents and the transactions contemplated hereby and thereby
(collectively, the "Transactions").
NOW, THEREFORE, in consideration of the mutual covenants and
conditions as hereinafter set forth, the parties hereto do hereby agree
as follows:
I CONTRIBUTIONS
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1.1. XXXX Contribution. At the Contribution Closing (as defined
below), on the terms and subject to the conditions of this Agreement,
XXXX hereby agrees to (i) transfer and deliver to Holding 2,345,900
shares of common stock, par value $.01 per share (the "CBRE Common
Stock"), of CBRE (the "XXXX Stock Contribution"), and (ii) make an
aggregate cash contribution to Holding of approximately $60.8 million to
$109.9 million (as determined by Holding no less than twelve business
days prior to the Contribution Closing) in immediately available funds to
an account of Holding (the "XXXX Cash Contribution," and together with
the XXXX Stock Contribution, the "XXXX Contribution"). In connection
with such XXXX Contribution, Holding hereby agrees to issue to XXXX at
the Contribution Closing (a) 2,345,900 shares of common stock, par value
$.01 per share ("Holding Common Stock"), of Holding in exchange for the
XXXX Stock Contribution and (b) a number of shares of Holding Common
Stock in exchange for the XXXX Cash Contribution equal to the quotient
obtained by dividing (x) the amount of the XXXX Cash Contribution by
(y) $16.00 (the shares of Holding Common Stock being issued to XXXX in
accordance with clauses (a) and (b) are collectively referred to as the
"XXXX Shares").
1.2. Xxxxxxx Xxxxxx Contributions. At the Contribution Closing, on
the terms and subject to the conditions of this Agreement, Xxxxxxx Xxxxxx
hereby agrees to transfer and deliver to Holding 3,402,463 shares of CBRE
Common Stock (the "Xxxxxxx Xxxxxx Contribution"). In connection with
such Xxxxxxx Xxxxxx Contribution, Holding hereby agrees to issue to
Xxxxxxx Xxxxxx at the Contribution Closing 3,402,463 shares (the "Xxxxxxx
Xxxxxx Shares") of Holding Common Stock.
1.3. Other Investors Contribution. At the Contribution Closing, on
the terms and subject to the conditions of this Agreement, each of the
Other Investors hereby agrees to transfer and deliver to Holding the
total number of shares of CBRE Common Stock set forth opposite his or her
name on Schedule I hereto (each, 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 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.
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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).
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(b) As of the date hereof, the authorized capital stock of
Holding consists of 2000 shares of Holding Common Stock, 10 of which are
issued and outstanding and held by XXXX as of the date hereof (each such
share having been purchased by XXXX for a cash price of $16.00 per
share). As of the date hereof, the authorized capital stock of Newco
consists of 2000 shares of common stock, par value $.01 per share
("Acquiror Common Stock"), 10 of which are issued and outstanding and held
by Holding as of the date hereof (each such share having been purchased
by Holding for a cash price of $16.00 per share).
(c) The XXXX Shares, the Xxxxxxx Xxxxxx Shares and the Other
Investors Shares, when issued and delivered in accordance with the terms
hereof and upon receipt of payment required to be made hereunder, will be
duly authorized, validly issued, fully paid and nonassessable and free
and clear of any mortgage, pledge, security interest, claim, encumbrance,
lien or charge of any kind (each, a "Lien").
(d) The execution, delivery and performance by each of
Holding and Newco of this Agreement and the agreements contemplated
hereby and the consummation by each of Holder and Newco of the
transactions contemplated hereby and thereby do not and will not, with or
without the giving of notice or the passage of time or both, (i) violate
the provisions of any law, rule or regulation applicable to either
Holding or Newco or its properties or assets; (ii) violate the provisions
of the certificate of incorporation or bylaws of either Holding or Newco,
as amended to date; or (iii) violate any judgment, decree, order or award
of any court, governmental or quasi-governmental agency or arbitrator
applicable to either Holding or Newco or their properties or assets.
(e) Except to the extent required pursuant to (i) the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the
rules and regulations promulgated thereunder, (ii) any Non-U.S.
Competition Laws and (iii) any similar applicable Laws, no consent,
approval, exemption or authorization is required to be obtained from, no
notice is required to be given to and no filing is required to be made
with any third party (including, without limitation, governmental and
quasi-governmental agencies, authorities and instrumentalities of
competent jurisdiction) by Holding or Newco, in order (i) for this
Agreement to constitute a legal, valid and binding obligation of Holding
and Newco or (ii) to authorize or permit the consummation by Holding of
the issuance of the XXXX Shares, the Xxxxxxx Xxxxxx Shares and the Other
Investor Share.
(f) Each of Holding and Newco was organized solely for the
purpose of effecting the Transactions and has engaged in no activity
other than in connection therewith.
2.2. Representations and Warranties of the Investors. Each of the
Investors represents and warrants, severally and not jointly, to Holding
and Newco and to the other Investors that:
(a) The execution and delivery by such Investor of this
Agreement and the documents contemplated hereby, the performances by such
Investor of its, his or her obligations hereunder and thereunder and the
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consummations by such Investor of the transactions contemplated hereby
and thereby have been duly authorized by all requisite action on the part
of such Investor, and this Agreement has been duly executed and delivered
by such Investor and, assuming the due authorization, execution and
delivery thereof by Holding and Newco, constitutes a legal, valid and
binding obligation of such Investor, enforceable against such Investor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors rights generally and by the
effect of general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or in law).
(b) The execution, delivery and performance by such Investor
of this Agreement and the agreements contemplated hereby and the
consummation by such Investor of the transactions contemplated hereby and
thereby does not and will not, with or without the giving of notice or
the passage of time or both, (i) violate the provisions of any law, rule
or regulation applicable to such Investor or its, his or her respective
properties or assets; (ii) violate the provisions of the constituent
organizational documents or other governing instruments applicable to
such Investor, as amended to date; or (iii) violate any judgment, decree,
order or award of any court, governmental or quasi-governmental agency or
arbitrator applicable to such Investor or its, his or her respective
properties or assets.
(c) Such Investor (i) is an "accredited investor" within the
definition of Regulation D promulgated by the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), (ii) is experienced in evaluating and investing in
private placement transactions of securities of companies in a similar
stage of development and acknowledges that he, she or it is able to fend
for himself, herself or itself, can bear the economic risk of the
Investor's investment in Holding, and has such knowledge and experience
in financial and business matters that the Investor is capable of
evaluating the merits and risks of the investment in the Holding Common
Stock and can afford a complete loss of its, his or her investment, (iii)
if other than an individual, has not been organized for the purpose of
acquiring the Holding Common Stock, (iv) understands that no public
market now exists for the Holding Common Stock and there is no assurance
that a pubic market will ever exist for the Holding Common Stock and (v)
understands that the Holding Common Stock may not be sold, transferred,
or otherwise disposed of without registration under the Securities Act or
an exemption therefrom, and that in the absence of an effective
registration statement covering the Holding Common Stock or an available
exemption from registration under the Securities Act, the Holding Common
Stock must be held indefinitely.
(d) Such Investor's, together with its Affiliates' (as
defined in the Merger Agreement), total beneficial ownership of shares of
outstanding CBRE Common Stock as of the date hereof is accurately set
forth opposite such Investor's name on Schedule I hereto, and each of
such shares when transferred and delivered to Holding will be free and
clear of all Liens.
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(e) Such Investor has no plan or intention to transfer its
shares of Holding 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
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whether the conditions set forth in the Merger Agreement have been
satisfied by the appropriate parties thereto and/or whether to waive any
of such conditions pursuant to the terms of the Merger Agreement, and (b)
the manner and timing of its and CBRE's compliance with the covenants
applicable to it and CBRE under the Merger Agreement. Subject to the
immediately preceding sentence, Holding may not amend, or agree to amend,
the Merger Agreement without the prior written consent of both XXXX and
Xxxxxxx Xxxxxx. XXXX agrees to amend, or cause the amendment of, the
certificates of incorporation of each of Holding and Acquiror at or prior
to the Contribution Closing to increase the total number of authorized
shares of Holding Common Stock and Acquiror Common Stock, respectively,
in order to permit the consummation of the transactions contemplated
hereby and by the Merger Agreement.
4.2. Financing Documents. The parties hereto acknowledge and agree
that Holding will have sole discretion with respect to the negotiation of
definitive debt financing documents with CSFB (or any other lending
person) and any supporting lenders based upon the Debt Financing
Documents.
4.3. Agreement to Cooperate; Further Assurances. Subject to the
terms and conditions of this Agreement, each of the parties hereto shall
use all reasonable best efforts to take, or cause to be taken, all action
and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective
the Transactions, including providing information and using reasonable
best efforts to obtain all necessary or appropriate waivers, consents and
approvals, and effecting all necessary registrations and filings.
4.4. Fees and Expenses.
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(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
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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.
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4.7. Execution of Securityholders' Agreement. At the time of the
Contribution Closing, each of the Investors agrees to execute and deliver
to the other parties thereto the Securityholders' Agreement.
4.8. Xxxxxxx Xxxxxx Warrant. Holding agrees to issue to Xxxxxxx
Xxxxxx or its Affiliate immediately after the closing under the Merger
Agreement a warrant in the form attached hereto as Exhibit B (the
"Warrant Agreement"). Xxxxxxx Xxxxxx agrees that at the time of the
closing under the Merger Agreement, the warrants to acquire
364,884 shares of Common Stock, par value $.01 per share ("CBRE Common
Stock"), of CBRE beneficially owned by Xxxxxxx Xxxxxx shall be cancelled
by CBRE without any payment to Xxxxxxx Xxxxxx.
4.9. Consultation. In connection with (a) exercising its
discretion under Sections 1.5 and 4.1 and (b) any negotiations
contemplated by Section 4.2, XXXX and Holding will use their good faith
efforts to (i) promptly communicate with the other parties hereto
concerning the relevant issues and terms, (ii) permit the other parties
hereto to participate in the negotiation of such terms, if applicable,
and (iii) consider the views of the other parties hereto in the making of
any decisions or conduct of any negotiations, as applicable.
4.10. Waiver of Certain Rights in KRES Merger Agreement.
Effective upon the Closing, each of FSEP, FSEP International, Xxxx
Holding Company and Xxxxx (collectively, the "Former KRES Shareholders")
irrevocably and unconditionally waives any rights that it or he may have
under (i) Section 10.13 of the Agreement and Plan of Merger, dated as of
May 14, 1997 (the "KRES Merger Agreement"), by and among CBRE, Xxxx Real
Estate Services, the Former KRES Shareholders and the other parties
thereto, and (ii) the Registration Rights Agreement, dated as of May 14,
1997, by and among CBRE, the Former KRES Shareholders and the other
parties thereto.
4.11. Conversion of Xxxx Warrants. Each of Xxxxx and The Xxxx
Holding Company ("Xxxx") agrees that at the time of the closing under the
Merger Agreement, the warrants to acquire 55,936 shares of CBRE Common
Stock beneficially owned by each of Xxxxx and Xxxx (as a result of the
Amended and Restated Option Agreement, dated as of August 27, 1997 (the
"Xxxxx-Xxxx Option Agreement"), by and among The Xxxx Company, Koll,
Wirta and Xxxx Real Estate Services) shall each be converted into the
right to receive $1.00 and shall not thereafter represent the right to
receive any securities of, or other consideration from, Holding or CBRE.
4.12. Transfers. Each Investor agrees not to enter into any
plan, agreement, arrangement or understanding to transfer its shares of
Holding Common Stock prior to and including the Contribution Closing.
V MISCELLANEOUS
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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,
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postage prepaid, or, in the case of telecopy notice, when received, or,
in the case of telegraphic notice, when delivered to the telegraph
company, or, in the case of telex notice, when sent, answerback received,
addressed as follows to Holding, Newco and the Investors, or to such
other address as may be hereafter notified by the parties hereto:
(a) If to Holding or Newco, to it at the following address:
c/o BLUM Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to an Investor, to it at its address set forth in
Section 6.3 of the Securityholders' Agreement.
5.2. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware applicable to contracts executed and to be performed entirely
within that state. Each of the parties by its execution hereof hereby
(i) irrevocably submits to the jurisdiction of the federal and state
courts located in the County of San Francisco in the State of California
for the purpose of any suit, action or other proceeding arising out of or
based upon this Agreement or any other agreement contemplated hereby or
relating to the subject matter hereof or thereof and (ii) waives to the
extent not prohibited by applicable law, and agrees not to assert by way
of motion, as a defense or otherwise, that its property is exempt or
immune from attachment or execution, that any such proceeding brought in
one of the above-named courts is improper, or that any right or remedy
relating to this Agreement or any other agreement contemplated hereby, or
the subject matter hereof or thereof, may not be enforced in or by such
court. Each of the parties hereby consents to service of process in any
such proceeding in any manner permitted by the laws of the state of
California, and agrees that service of process by registered or certified
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mail, return receipt requested, at its address specified pursuant to
Section 5.2 hereof is reasonably calculated to give actual notice.
5.3. Assignment. This Agreement may not be assigned by any party
hereto, except that the rights and obligations of XXXX to provide the
XXXX Cash Contribution may be assigned by XXXX in whole or in part to any
affiliate of XXXX provided that no such assignment will relieve XXXX of
any of its obligations hereunder. Any assignment or delegation in
derogation of this provision shall be null and void. The provisions
hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, executors and administrators of the parties hereto.
5.4. Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.5. Integration. This Agreement, the Merger Agreement, the
Securityholders' Agreement, the Warrant Agreement, the letter agreement
between XXXX and an affiliate of Xxxxxxx Xxxxxx and the documents
referred to herein and therein or delivered pursuant hereto or thereto
contain the entire understanding of the parties with respect to the
subject matter hereof and thereof. There are no agreements,
representations, warranties, covenants or undertakings with respect to
the subject matter hereof and thereof other than those expressly set
forth herein and therein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to this subject
matter, including, without limitation, the letter agreement dated as of
November 10, 2000 among the Investors.
5.6. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in addition to any other remedy to which
they are entitled at law or in equity
11
IN WITNESS WHEREOF, Newco and the Investors have executed this
Agreement as of the day and year first above written.
XXXX XX HOLDING CORP.
By: __________________________
Name:
Title:
XXXX XX CORP.
By: __________________________
Name:
Title:
RCBA STRATEGIC PARTNERS, L.P.
By: RCBA GP, L.L.C., its general partner
By: ___________________________
Name:
Title:
FS EQUITY PARTNERS III, L.P.
By: FS Capital Partners, L.P., its
general Partner
By: FS Holdings, Inc., its general
partner
By: ____________________________
Name:
Title:
FS EQUITY PARTNERS INTERNATIONAL, L.P.
By: FS&Co. International, L.P., its
general Partner
By: FS International Holdings
Limited, its general partner
By: _____________________________
` Name:
Title:
THE XXXX HOLDING COMPANY
______________________________
By: Xxxxxx X. Xxxx
______________________________
Xxxxxxxx X. Xxxxx
______________________________
Xxxxxxx X. Xxxxx
______________________________
W. Xxxxx Xxxxx
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA Strategic
Partners, L.P., FS Equity Partners III, L.P., FS Equity Partners
International, L.P., The Xxxx Holding Company, Xxxxxxxx X. Xxxxx, Xxxxxxx
X. Xxxxx and W. Xxxxx Xxxxx, I, _______________________, the spouse of
Xxxxxxx X. Xxxxx, do hereby join with my spouse in executing the
foregoing Contribution and Voting Agreement and do hereby agree to be
bound by all of the terms and provisions thereof.
Dated as of February 23, 2001
___________________
[Spouse]
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA Strategic
Partners, L.P., FS Equity Partners III, L.P., FS Equity Partners
International, L.P., The Xxxx Holding Company, Xxxxxxxx X. Xxxxx, Xxxxxxx
X. Xxxxx and W. Xxxxx Xxxxx, I, _______________________, the spouse of W.
Xxxxx Xxxxx, do hereby join with my spouse in executing the foregoing
Contribution and Voting Agreement and do hereby agree to be bound by all
of the terms and provisions thereof.
Dated as of February 23, 2001
___________________
[Spouse]
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA Strategic
Partners, L.P., FS Equity Partners III, L.P., FS Equity Partners
International, L.P., The Xxxx Holding Company, Xxxxxxxx X. Xxxxx, Xxxxxxx
X. Xxxxx and W. Xxxxx Xxxxx, I, _______________________, the spouse of
Xxxxxxxx X. Xxxxx, do hereby join with my spouse in executing the
foregoing Contribution and Voting Agreement and do hereby agree to be
bound by all of the terms and provisions thereof.
Dated as of February 23, 2001
_________________
[Spouse]
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Contribution and Voting Agreement among XXXX XX Corp., RCBA Strategic
Partners, L.P., FS Equity Partners III, L.P., FS Equity Partners
International, L.P., The Xxxx Holding Company, Xxxxxxxx X. Xxxxx, Xxxxxxx
X. Xxxxx and W. Xxxxx Xxxxx, I, _______________________, the spouse of
Xxxxxx X. Xxxx, do hereby join with my spouse in executing the foregoing
Contribution and Voting Agreement and do hereby agree to be bound by all
of the terms and provisions thereof.
Dated as of February 23, 2001
__________________
[Spouse]
Schedule I
Total Shares of
Outstanding Common
Stock Beneficially Owned
------------------------
XXXX 3,423,886
Xxxxxxx Xxxxxx 3,402,463
Xxxxxxx X. Xxxxx 35,000
W. Xxxxx Xxxxx 58,600
Xxxxxxxx X. Xxxxx 397,873
The Xxxx Holding Company 734,2901
[FN]
______________________
1 The shares listed as beneficially owned by Xxxxxxx X. Xxxxx do
not include currently exercisable options (the "Xxxxx-Xxxx
Options") granted to Xx. Xxxxx by The Xxxx Holding Company
(which is the wholly-owned subsidiary of The Xxxx Company, which
is wholly-owned by the Xxx Xxxx Separate Property Trust, a trust
for which Xxxxxx X. Xxxx is trustee) to acquire 521,590 shares
of CBRE Common Stock held by The Xxxx Holding Company. The
shares listed as beneficially owned by The Xxxx Holding Company
include the shares of CBRE Common Stock underlying the Xxxxx-
Xxxx Options. To the extent that the Xxxxx-Xxxx Options are
exercised prior to the Contribution Closing, such underlying
shares of CBRE Common Stock received by Xx. Xxxxx shall be
contributed to Holding at the Contribution Closing pursuant to
Section 1.3 hereto by Xx. Xxxxx instead of The Xxxx Holding
Company and Xx. Xxxxx shall receive the corresponding number of
shares of Holding Common Stock at the Contribution Closing in
respect thereof pursuant to Section 1.3 hereto instead of The
Xxxx Holding Company.
Exhibit A
[Insert final form of Stockholders Agreement]
Exhibit B
[Insert final form of Warrant Agreement]
