Exhibit 4.3
DESIGNATED MANAGER SUBSCRIPTION AGREEMENT
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DESIGNATED MANAGER SUBSCRIPTION AGREEMENT, dated as of July 13, 2001
between CBRE Holding, Inc., a Delaware corporation formerly known as ▇▇▇▇ ▇▇
Holding Corp. (the "Company"), and the individual named on the signature page
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hereto (the "Purchaser"). All capitalized terms used in this Agreement shall
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have the meanings set forth in Exhibit A hereto.
1. Subscription for and Purchase of Directly Owned Class A Common Stock.
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1.1. Purchase of Directly Owned Class A Common Stock.
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(a) Pursuant to the terms and subject to the conditions set
forth in this Agreement, the Purchaser hereby subscribes for and agrees to
purchase, and the Company hereby agrees to issue and sell to the Purchaser, on
the Closing Date (as defined in Section 1.3), the number of shares of Directly
Owned Class A Common Stock set forth on Schedule I hereto at a price of $16.00
per share and for the aggregate amount and forms of consideration (the "Total
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Purchase Price") set forth on Schedule I hereto. Notwithstanding the foregoing,
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in the event that the offering for Directly Owned Class A Common Stock is over-
subscribed, the Company, in its sole discretion, reserves the right to reduce
the number of shares available for purchase by the Purchaser from the number of
shares subscribed for on Schedule I hereto. In the event the offering is over-
subscribed, the Company will deliver to the Purchaser the reduced number of
shares available and a check equal to the difference of (i) the Total Purchase
Price as set forth on Row 5 of Schedule I and (ii) the actual purchase price of
the shares delivered to the Purchaser. For the Purchaser to properly subscribe
pursuant to this Section 1.1, (a) the Purchaser must properly complete Schedule
I (attached hereto) and execute this Agreement, and (b) the Company must receive
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from the Purchaser either by fax or mail (at the number or address indicated in
Section 4.9 hereto) both the properly completed Schedule I and this executed
Agreement no later than 5:00 p.m. Los Angeles time on July 13, 2001.
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(b) The Purchaser may pay the Total Purchase Price using any
combination of the following methods of payment: (i) assignment of all or a
portion of the net cash proceeds to be received by the Purchaser in the Merger
in respect of shares of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock owned of record
by the Purchaser; (ii) assignment of all or a portion of the cash proceeds net
of withholding tax, to be received by the Purchaser in respect of options to
acquire shares of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services common stock that are validly
tendered to CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services pursuant to its offer to purchase such
options; (iii) subject to the conditions contained in Section 1.4(a)(iv) hereto,
execution and delivery of a full-recourse note; and (iv) payment of cash. In the
event that either the Assigned Merger Proceeds, as defined in Section 1.7(a)
hereto, or the Assigned Options Proceeds, as defined in Section 1.7(b) hereto,
is less than the amount indicated on Row 12 and 15 of Schedule I, respectively,
the Purchaser agrees to pay promptly, and in any event within 2 business days
upon demand, the shortfall to the Company in cash.
1.2. Limitations Regarding Sales of Directly Owned Class A Common
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Stock. Notwithstanding anything in this Agreement to the contrary, the Company
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shall have no
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obligation to issue, sell or deliver any shares of Directly Owned Class A Common
Stock pursuant to this Agreement to any person (i) who is not a full-time
employee of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services or any of its Subsidiaries on the Closing
Date or (ii) who is a resident of a jurisdiction in which such issuance, sale or
delivery to such person would constitute a violation of the securities or "blue
sky" laws of such jurisdiction.
1.3. The Closing. The closing (the "Closing") of the purchase of
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Directly Owned Class A Common Stock hereunder shall take place at 9:00 a.m. New
York City time on July 20, 2001 or at such later date and at such time as the
Company shall direct on at least three business days' prior notice to the
Purchaser (the "Closing Date"). The Closing shall occur at the principal offices
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of the Company or at such other place as the parties may mutually agree. At the
Closing, the Company will deliver to the Purchaser one or more certificates
representing the number of shares of Directly Owned Class A Common Stock
purchased by the Purchaser pursuant to this Agreement (the "New Certificates")
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using New Cash Consideration as defined in Section 1.4(a)(ii) hereto, against
the Purchaser's (or the Purchaser's representative) prior delivery to the
Company of each of the agreements, documents and forms of consideration set
forth in Section 1.4(a)(i), (ii) and (iv) hereto applicable to the Purchaser.
After the Closing, the Company will deliver to the Purchaser one or more New
Certificates representing the number of shares of Directly Owned Class A Common
Stock purchased by the assignment to the Company (pursuant to Section 1.7
hereto) of all or a portion of the proceeds that the Purchaser would be
otherwise entitled to receive in the Merger for shares of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
Services Common Stock, against the Purchaser's (or the Purchaser's
representative) prior delivery to the Company of the form of consideration set
forth in Section 1.4(a)(iii) hereto.
1.4. Conditions to the Obligations of the Parties.
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(a) The obligations of the Company under this Section 1 shall be
subject to each of the following conditions:
(i) the Purchaser shall have delivered to the Company on
or prior to 5:00 p.m. Los Angeles time on July 13, 2001 a copy of this
Agreement duly executed by Purchaser and, if applicable, his or her spouse,
together with a properly completed Schedule I to this Agreement;
(ii) the Purchaser shall have delivered to the Company
prior to the closing cash or a certified bank check in an amount equal to
Row 9 of Schedule I (the "New Cash Consideration");
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(iii) if the Purchaser is electing to pay all or a portion
of the Total Purchase Price for shares of Directly Owned Class A Common
Stock purchased hereby by the assignment to the Company (pursuant to
Section 1.7 hereto) of all or a portion of the proceeds that the Purchaser
would otherwise be entitled to receive in the Merger for shares of CB
▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock, the Purchaser shall deliver to the
Company after the Closing (A) the certificate or certificates (the "Old
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Certificates") representing such CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock
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upon Purchaser's receipt of a letter from the Company after the Closing
requesting the delivery of such Old Certificates, and (B) an executed,
undated stock power in the form of
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Exhibit D hereto (a "Stock Power") with respect to the shares of ▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ Services Common Stock represented by the Old Certificates;
(iv) if the Purchaser is electing to pay a portion of the
Total Purchase Price for shares of Directly Owned Class A Common Stock
purchased hereby by delivery of a full-recourse note, the Purchaser (x)
must be purchasing the minimum number of shares of Directly Owned Class A
Common Stock and/or shares of Class A Common Stock underlying stock fund
units in the DCP Plan that is required for Purchaser to be eligible to use
a Note (such amount having been communicated to Purchaser by either
telephone or e-mail) and (y) shall have duly executed and delivered to the
Company (A) a full-recourse note (the "Note") payable to the Company in an
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amount equal to Row 8 of Schedule I (the "Note Consideration"), which Note
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shall be in the form of Exhibit B hereto, (B) a Pledge Agreement (the
"Pledge Agreement") in favor of the Company, pursuant to which the
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Purchaser shall pledge to the Company, among other things, shares of
Directly Owned Class A Common Stock purchased hereby with an aggregate
offering price equal to 200% of the principal amount of the Note, as
security for the payment of the Note, and the Company shall thereafter hold
on behalf of the Purchaser, among other things, the New Certificates
representing such shares of Directly Owned Class A Common Stock, which
Pledge Agreement shall be in the form of Exhibit C hereto, and (C) a Stock
Power (in addition to any Stock Power delivered pursuant to clause (ii)
above) with respect to the shares of Directly Owned Class A Common Stock
represented by the New Certificates;
(v) if the Purchaser is married, or will be married on
the Closing Date, the Purchaser's spouse shall have duly executed and
delivered to the Company the "Consent of Spouse" page attached to this
Agreement;
(vi) the closing of the Merger Agreement shall have
occurred prior to, or be occurring substantially simultaneously with, the
Closing; and
(vii) the representations and warranties of the Purchaser
in Section 1.6 of this Agreement shall be true and correct as of the
Closing Date in all material respects.
(b) The obligations of the Purchaser under this Section 1 shall
be subject to each of the following conditions:
(i) the representations and warranties of the Company in
Section 1.5 of this Agreement shall be true and correct as of the Closing
Date in all material respects, and
(ii) the closing of the Merger Agreement shall have
occurred prior to, or be occurring substantially simultaneously with, the
Closing.
1.5. Representations and Warranties of the Company. The Company
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represents and warrants to the Purchaser as follows:
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(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
the Company of this Agreement has been duly authorized by all necessary
corporate and legal action by the Company, and no other corporate proceeding by
the Company is necessary for the execution, delivery and performance by the
Company of this Agreement. This Agreement has been duly executed and delivered
by the Company and, assuming it is duly executed and delivered by the Purchaser,
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by the
effect of general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(b) The Directly Owned Class A Common Stock to be issued to the
Purchaser pursuant to this Agreement, when issued and delivered in accordance
with the terms hereof, will be duly and validly issued and, upon receipt by the
Company of the Total Purchase Price therefor, will be fully paid and
nonassessable with no personal liability attached to the ownership thereof and
will not be subject to any preemptive rights under the DGCL.
(c) The execution, delivery and performance by the Company of
this Agreement will not (i) conflict with the certificate of incorporation or
by-laws (or equivalent organizational documents) of the Company or any of its
Subsidiaries, (ii) result in any breach of any terms or conditions of, or
constitute a default under, any contract, agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound or (iii) conflict with or violate any law, rule,
regulation, ordinance, writ, injunction, judgment or decree applicable to the
Company or any of its Subsidiaries or by which any of their assets may be bound
or affected.
1.6. Representations and Warranties of the Purchaser. The Purchaser
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represents and warrants to the Company as follows:
(a) He or she is competent to, and has sufficient capacity to,
execute and deliver this Agreement, the Note (if used by the Purchaser) and the
Pledge Agreement (if the Purchaser uses a Note) and to perform his or her
obligations hereunder and thereunder (if applicable to the Purchaser).
(b) This Agreement has been, and simultaneously with the
Closing, the Note and the Pledge Agreement (each if applicable to the Purchaser)
will be, duly executed and delivered by the Purchaser.
(c) Assuming the due execution and delivery of this Agreement by
the Company, this Agreement constitutes, and simultaneously with the Closing,
the Note and Pledge Agreement (each if applicable to the Purchaser) will
constitute, valid and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with their terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by the
effect of
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general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(d) The execution, delivery and performance of this Agreement,
the Note (if applicable to the Purchaser) and the Pledge Agreement (if
applicable to the Purchaser) by the Purchaser will not (i) conflict with or
violate any law, rule, regulation, ordinance, writ, injunction, judgment or
decree applicable to the Purchaser or by which any of his or her assets may be
bound or affected or (ii) result in any breach of any terms or conditions of, or
constitute a default under, any contract, agreement or instrument to which the
Purchaser is a party or by which the Purchaser is bound.
(e) The Purchaser is the owner of record of the total number of
outstanding shares of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock indicated on Row 10
of Schedule I.
(f) The Purchaser acknowledges and agrees that the Transfer of
any of the shares of Directly Owned Class A Common Stock purchased by the
Purchaser at the Closing and, pursuant to Section 4.2 hereto, other Securities
that the Purchaser shall hereafter acquire, shall be subject to restrictions and
limitations, including, without limitation, those restrictions set forth in
Sections 2.1 (Transfers to be Made Only as Permitted or Required by this
Agreement), 2.2 (Permitted Transfers), 2.4 (Legend on Securities), 2.5 (Co-Sale
Rights), 2.7 (Required Sale Right), 2.8 (Company Right of Repurchase on Unvested
Shares), 2.9 (Sale Right) and 3.1 (Holdback Agreement).
(g) The Purchaser has received a copy of the Prospectus and has
read all of the Prospectus, including the section therein titled "Risk Factors."
(h) As of the date hereof and as of the Closing Date, the
Purchaser is buying for investment purposes only and has no immediate plan or
intention to transfer his or her shares of Directly Owned Class A Common Stock
following the Closing.
1.7. Assignment of Certain Proceeds to the Company.
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(a) Subject to the provisions of this Section 1.7(a), the
Purchaser hereby irrevocably assigns to the Company the right to receive the
amount of the Purchaser's Merger Proceeds set forth in Row 12 of Schedule I
hereto, if any (the "Assigned Merger Proceeds"), otherwise payable at the
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Effective Time. Pursuant to the terms of this Agreement, the parties agree that,
at the Effective Time, the Assigned Merger Proceeds assigned to the Company
shall be applied to the payment on behalf of the Purchaser of all or a portion
of the Total Purchase Price as the case may require. As a result of this Section
1.7(a), the Assigned Merger Proceeds shall, at the Effective Time, become the
property of the Company. In lieu of the delivery to the Purchaser of the
Assigned Merger Proceeds, the Company shall return or cause to be returned to
the Purchaser, and the Purchaser shall be entitled to receive, subject to the
terms and conditions of this Agreement, the New Certificates. Notwithstanding
the foregoing, this assignment shall not restrict in any manner the Purchaser's
ability to exercise voting rights with respect to the shares in his or her sole
discretion, or his or her ability to transfer or sell the shares in his or her
sole discretion. In the event that the Purchaser transfers or sells the shares
in
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his or her sole discretion at any time, the assignment will be deemed revoked
automatically and the Purchaser agrees to deliver payment in cash in lieu of the
Assigned Merger Proceeds.
(b) Subject to the provisions of this Section 1.7(b), the
Purchaser hereby irrevocably assigns to the Company the right to receive the
amount of the Purchaser's Options Proceeds set forth in Row 14 of Schedule I
hereto, net of withholding tax, set forth in Row 15 of Schedule I hereto, if any
(the "Assigned Options Proceeds"), otherwise payable at the Effective Time with
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respect to those CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Options indicated by the Purchaser on
his or her Options Payment Consent. Pursuant to the terms of this Agreement, the
parties agree that, at the Effective Time, the Assigned Options Proceeds
assigned to the Company shall be applied to the payment on behalf of the
Purchaser of all or a portion of the Total Purchase Price as the case may
require. As a result of this Section 1.7(b), the Assigned Options Proceeds
shall, at the Effective Time, become the property of the Company. In lieu of the
delivery to the Purchaser of the Assigned Options Proceeds, the Company shall
return or cause to be returned to the Purchaser, and the Purchaser shall be
entitled to receive, subject to the terms and conditions of this Agreement, the
New Certificates. Notwithstanding the foregoing, this assignment shall not
restrict in any manner the Purchaser's ability to withdraw his or her tender of
such options as indicated on the Options Payment Consent. In the event that the
Purchaser withdraws the Options Payment Consent at any time prior to the
Effective Time, the assignment will be deemed revoked automatically and the
Purchaser agrees to deliver payment in cash in lieu of the Assigned Merger
Proceeds.
(c) If the Purchaser is assigning any of his or her Merger
Proceeds to the Company pursuant to Section 1.7(a) hereto, the Purchaser agrees
to deliver to the Company the Old Certificates after the Closing accompanied by
a Stock Power, as set forth in Section 1.4(a)(iii). Do not send or deliver the
Old Certificates to the Company at this time. The Company will send a separate
letter requesting delivery of Old Certificates after the Closing as set forth in
Section 1.4(a)(iii) hereto. If the Purchaser is assigning any of his or her
Options Proceeds, net of withholding tax, to the Company pursuant to Section
1.7(b) hereto, the Purchaser agrees to complete, sign and deliver his or her
Options Payment Consent prior to the Closing.
2. Transfers.
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2.1. Transfers to be Made Only as Permitted or Required by this
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Agreement.
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(a) Each of the Purchaser and his or her Permitted Transferees
hereby agrees that he or she will not, directly or indirectly, Transfer any
shares of Directly Owned Class A Common Stock unless such Transfer complies with
the provisions of this Agreement.
(b) Each of the Purchaser and his or her Permitted Transferees
hereby agrees that, except for Transfers pursuant to Sections 2.2(a)(iii), 2.5
and 2.7 hereof or Transfers in any Public Offering, no Transfer of any shares of
Directly Owned Class A Common Stock prior to the Lapse Date shall occur unless
such transferee (i) shall agree to be bound by, and become subject to, specified
terms of this Agreement in accordance with the provisions of Section 4.5 hereof
or (ii) is an Other Purchaser.
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(c) Each of the Purchaser and his or her Permitted Transferees
hereby agrees that neither the Purchaser nor any of his or her Permitted
Transferees shall, without the prior written consent of the Company (which
consent may be withheld by the Company in its absolute discretion), effect a
Transfer of shares of Directly Owned Class A Common Stock prior to the Lapse
Date, except for Transfers pursuant to Sections 2.2, 2.5, 2.7, 2.8 and 2.9
hereof or Transfers in any Public Offering.
2.2. Permitted Transfers. The Purchaser may Transfer any of the shares
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of Directly Owned Class A Common Stock beneficially owned by him or her (i) to
his or her spouse, parent, descendant, step-child or step-grandchild or any
executor, estate, guardian, committee, trustee or other fiduciary acting as such
solely on behalf or solely for the benefit of any such spouse, parent,
descendant, step-child or step-grandchild (collectively, a "Family Group"), (ii)
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to any trust, corporation, partnership or limited liability company, all of the
beneficial interests in which shall be held, directly or indirectly, by such
Purchaser and/or one or more of the Family Group of such Purchaser; provided,
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however, that during the period that any such trust, corporation, partnership or
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limited liability company holds any right, title or interest in any shares of
Directly Owned Class A Common Stock, no Person other than the Purchaser or
members of the Family Group of the Purchaser may be or become beneficiaries,
stockholders, general partners or members thereof, (iii) to the Company, RCBA
Strategic or any of its Affiliates or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any of their Affiliates,
or (iv) to any Other Employee. Notwithstanding the foregoing, no Shares Subject
to Repurchase may be transferred pursuant to either clause (iii) or (iv) of this
Section 2.2. A transferee under Section 2.2(a)(i) or 2.2(a)(ii) is referred to
as a "Permitted Transferee."
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2.3. Void Transfers.
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In the event of any purported Transfer of any Securities in violation
of the provisions of this Agreement, such purported Transfer shall be void and
of no effect and the Company shall not give effect to such Transfer.
2.4. Legend on Securities.
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Each certificate representing shares of Directly Owned Class A Common
Stock issued to any Stockholder shall bear the following legend on the face
thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
SUBSCRIPTION AGREEMENT BETWEEN CBRE HOLDING, INC. AND THE PURCHASER (AS DEFINED
IN THE SUBSCRIPTION AGREEMENT), A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SUCH SUBSCRIPTION AGREEMENT. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL
OF THE PROVISIONS OF SUCH SUBSCRIPTION AGREEMENT, INCLUDING RESTRICTIONS
RELATING TO TRANSFER OF THE SECURITIES."
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2.5. Co-Sale Rights.
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(a) Prior to a Qualified Initial Public Offering, with respect
to any proposed Transfer (other than as provided in Section 2.6) to any Non-RCBA
Strategic Party by one or more Stockholders (in such capacity, the "Transferring
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Stockholders") of Common Stock constituting a majority of the outstanding Common
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Stock, whether pursuant to a merger, consolidation, share exchange, tender offer
or otherwise (a "Majority Sale"), the Company agrees that, subject to Section
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2.5(b) hereof, it will take all necessary actions to ensure that in such
Majority Sale the Purchaser will have the right to Transfer to the proposed
transferee or acquiring Person (a "Proposed Transferee") a number of shares of
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Directly Owned Class A Common Stock equal to at least the product (rounded down
to the nearest whole number of shares) of (i) the quotient determined by
dividing (A) the aggregate number of issued and outstanding shares of Directly
Owned Class A Common Stock owned of record by the Purchaser on the closing date
of the Majority Sale by (B) the aggregate number of issued and outstanding
shares of Common Stock on the closing date of the Majority Sale and (ii) the
total number of shares of Common Stock proposed to be directly or indirectly
Transferred to the Proposed Transferee in the Majority Sale, at the same price
per share and upon the same terms and conditions (including, without limitation,
time of payment and form of consideration) as to be paid by and given to the
Transferring Stockholders (such product, the "Co-Sale Amount"); provided,
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however, that for purposes of clause (ii) of this Section 2.5(a), all shares
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underlying unexercised Options and Shares Subject to Repurchase shall not be
deemed to be issued and outstanding; provided, further, that subject to
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compliance with applicable law, in the event that the Proposed Transferee
notifies the Company that it will require the structure of the transaction
related to the proposed Majority Sale to be treated as a recapitalization for
financial accounting purposes and that it will require the Company to no longer
be subject to the reporting requirements or Section 14 of the Exchange Act after
the closing date of the proposed Majority Sale, then, solely to the extent
deemed necessary by the Proposed Transferee to satisfy such requirements, the
Proposed Transferee may pay to the Purchaser consideration in the Majority Sale
with respect to the shares of Directly Owned Class A Common Stock owned by him
or her that differs from the form of consideration paid to one or more of the
Transferring Stockholders.
(b) To the extent permitted under applicable law, in order to be
entitled to the right set forth in Section 2.5(a) hereto, the Purchaser must
agree to (i) make representations and warranties (and provide related
indemnification) as to his or her individual Ownership of Directly Owned Class A
Common Stock (and then only to the same extent such representations and
warranties are severally given by the Transferring Stockholders with respect to
their several Ownership of Common Stock), and (ii) agree to pay his or her pro
rata share (based on the number of shares Transferred by each Stockholder in
such Majority Sale) of any liability arising out of any representations,
warranties, covenants or agreements of the Transferring Stockholders that
survive the closing of such Majority Sale and do not relate to Ownership of
Common Stock. If the Purchaser is a holder of Common Stock Equivalents and
wishes to participate in a sale of Common Stock pursuant to Section 2.5(a), the
Purchaser shall convert or exercise or exchange such number of Common Stock
Equivalents into or for Directly Owned Class A Common Stock as may be required
therefor on or prior to the closing date of the Majority Sale.
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(c) Subject to the Purchaser's compliance with the terms of
Section 2.5(b) hereto, if and to the extent the Proposed Transferee fails to
purchase from the Purchaser on the closing date of the Majority Sale any portion
of the Co-Sale Amount that Purchaser has properly exercised his or her right to
Transfer pursuant to this Section 2.5, then the Company agrees to purchase from
the Purchaser on the closing date of the Majority Sale a number of shares of
Directly Owned Class A Common Stock beneficially owned by the Purchaser such
that, after such purchase by the Company, the Purchaser shall have Transferred
to the Company and the Proposed Transferee, to the extent applicable, an amount
of shares of Directly Owned Class A Common Stock equal to such portion of the
Co-Sale Amount that Purchaser has properly exercised his or her right to
Transfer pursuant to this Section 2.5. The Purchaser agrees that this Section
2.5(c) shall be the sole and exclusive remedy of the Purchaser in the event that
the Proposed Transferee fails to purchase from the Purchaser on the closing date
of the Majority Sale any portion of the Co-Sale Amount that Purchaser has
properly exercised his or her right to Transfer pursuant to this Section 2.5.
2.6. Public Offerings. The provisions of Section 2.5 and Section 2.7
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shall not be applicable to offers and sales of Securities in a Public Offering.
2.7. Required Sale Right.
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(a) Prior to a Qualified Initial Public Offering, to the extent
permitted under applicable law, if one or more Stockholders (in such capacity,
the "Requiring Parties") agree to a Transfer of Common Stock constituting a
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Majority Sale to any Non-RCBA Strategic Party, then the Purchaser hereby agrees
that, if requested by the Requiring Parties, he or she will Transfer to such
transferee or acquiring Person (the "Purchasing Party") on the same terms and
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conditions (including, without limitation, time of payment and form of
consideration, but subject to Section 2.7(b)) as to be paid and given to the
Requiring Parties, the same portion (as determined by the immediately succeeding
sentence) of the Purchaser's Directly Owned Class A Common Stock as is being
Transferred by the Requiring Parties; provided, however, that subject to
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compliance with applicable law, in the event that the Purchasing Party notifies
the Company that it will require the structure of the transaction related to the
proposed Majority Sale to be treated as a recapitalization for financial
accounting purposes and that it will require the Company to no longer be subject
to the reporting requirements or Section 14 of the Exchange Act after the
closing date of the proposed Majority Sale, then, solely to the extent deemed
necessary by the Purchasing Party to satisfy such requirements, the Purchasing
Party may pay to the Purchaser consideration in the Majority Sale with respect
to the shares of Directly Owned Class A Common Stock owned by him or her that
differs from the form of consideration paid to one or more of the Requiring
Parties. The Purchaser can be required to Transfer pursuant to this Section 2.7
that number of shares of Directly Owned Class A Common Stock equal to the
product obtained by multiplying (i) a fraction, (a) the numerator of which is
the aggregate number of issued and outstanding shares of Directly Owned Class A
Common Stock to be Transferred by the Requiring Parties and (b) the denominator
of which is the aggregate number of issued and outstanding shares of Common
Stock owned by the Requiring Parties at the time of the Transfer by (ii) the
aggregate number of issued and outstanding shares of Directly Owned Class A
Common Stock owned by the Purchaser.
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(b) To exercise the right set forth in Section 2.7(a) hereto,
the Requiring Parties must give written notice (the "Required Sale Notice") to
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the Purchaser of any proposed Majority Sale giving rise to the rights of the
Requiring Parties set forth in Section 2.7(a) at least ten (10) calendar days
prior to such Transfer. The Required Sale Notice will set forth the number of
shares of Common Stock proposed to be so Transferred, the name of the Purchasing
Party, the proposed amount and form of consideration and the other terms and
conditions of the proposed Majority Sale. In connection with any such Transfer,
the Purchaser shall be obligated only to (i) make representations and warranties
(and provide related indemnification) as to his or her individual Ownership of
Directly Owned Class A Common Stock (and then only to the same extent such
representations and warranties are severally given by the Requiring Parties with
respect to their several Ownership of Common Stock), and (ii) agree to pay his
or her pro rata share (based on the number of shares Transferred by each
Stockholder in such Majority Sale) of any liability arising out of any
representations, warranties, covenants or agreements of the Requiring Parties
that survive the closing of such Majority Sale and do not relate to Ownership of
Common Stock. If the Transfer referred to in the Required Sale Notice is not
consummated within 120 days from the date of the Required Sale Notice, the
Requiring Parties must deliver another Required Sale Notice in order to exercise
their rights under this Section 2.7 with respect to such Transfer or any other
Transfer.
(c) The Company and the Purchaser each agree that any and all
Requiring Parties shall be third party beneficiaries of this Section 2.7.
2.8. Company Right of Repurchase on Unvested Shares.
---------------------------------------------------
(a) If the Purchaser's employment with the Company and its
Subsidiaries is terminated for any reason (including as a result of the death or
disability of the Purchaser), the Purchaser shall be required to offer his or
her Shares Subject to Repurchase for sale to the Company and accordingly the
Company or its designated assignee shall have the option to purchase all or any
portion (at the Company's option) of the Shares Subject to Repurchase held by
the Purchaser and the Purchaser's Permitted Transferees by providing written
notice of the election (including the number of Shares Subject to Repurchase to
be purchased, the identity of the purchaser, the purchase price for the Shares
Subject to Repurchase as determined pursuant to Section 2.8(b) hereto and, if
applicable, the net purchase price for the Securities to be paid to the
Purchaser pursuant to Section 2.8(c) hereto) to the Purchaser and the Permitted
Transferees (a "Repurchase Notice") no later than 180 days after termination of
-----------------
Purchaser's employment with the Company and its Subsidiaries.
(b) If the Purchaser's employment with the Company and its
Subsidiaries is terminated by the applicable employer for Cause or the
Purchaser's employment with the Company and its Subsidiaries is voluntarily
terminated by the Purchaser other than for Good Reason, then the purchase price
per share for the Shares Subject to Repurchase pursuant to Section 2.8(a) or
shares to be sold pursuant to Section 2.9, as applicable, will be the lower of
Cost and Fair Market Value on the date of the Purchaser's termination of
employment. If the Purchaser's employment with the Company and its Subsidiaries
is terminated for any reason other than under circumstances in which the
immediately preceding sentence applies, then the purchase price per share for
the Shares Subject to Repurchase pursuant to Section 2.8(a) or shares to be sold
pursuant to Section 2.9, as applicable, will be the Fair Market Value on the
date
11
of Purchaser's termination of employment. The purchase price determined pursuant
to this Section 2.8(b) is referred to as the "Repurchase Price."
----------------
(c) The completion of the purchase pursuant to Section 2.8(a)
shall take place at the principal office of the Company on or prior to the
thirtieth (30th) day after the giving of the Repurchase Notice. The repurchase
price for the Shares Subject to Repurchase shall be paid by delivery to the
Purchaser or Permitted Transferee of a certified bank check or checks in the
appropriate amount payable to the order of the Purchaser or Permitted
Transferee; provided, however, that if the Purchaser previously has executed and
-------- -------
delivered a Note to the Company, such repurchase price shall be net of the
concurrent prepayment to the Company of the aggregate accrued and unpaid
interest and unpaid principal thereon pursuant to Section 3.3 hereto.
2.9. Sale Right.
---------------
(a) In the event that (i) the Purchaser's employment with the
Company and its Subsidiaries has been terminated for any reason (including as a
result of the death or disability of the Purchaser) and (ii) neither the Company
nor its designee has delivered a Repurchase Notice to the Purchaser at least 20
days prior to the Note Repayment Date, then the Purchaser shall have the option
to sell to the Company, and the Company shall be obligated to purchase, on one
occasion from the Purchaser, a portion of the shares of Directly Owned Class A
Common Stock held by Purchaser with an aggregate Repurchase Price on the date of
the Purchaser's termination of employment equal to the Note Repayment Amount
(the "Note Repayment Shares"); provided, however, that if the Note Repayment
--------------------- -------- -------
Amount exceeds the aggregate Repurchase Price of all shares of Directly Owned
Class A Common Stock owned by the Purchaser on the date the Purchaser's
employment is terminated, then the Company shall only be required to purchase
such shares pursuant to this Section 2.9 and the remaining portion of the Note
Repayment Amount shall remain payable under the terms of the Note; provided,
--------
further, that the first shares of Directly Owned Class A Common Stock sold by
-------
the Purchaser must be shares other than Shares Subject to Repurchase until the
Purchaser owns no more of such shares, and then the Shares Subject to Repurchase
until the Purchaser owns no more of such shares. The purchase price per share
for such Note Repayment Shares will be the Repurchase Price and shall be
determined as of the date of the Purchaser's termination of employment.
(b) In order to exercise the right set forth in Section 2.9(a)
hereto, the Purchaser shall be required to deliver a written notice of his or
her election to the Company (a "Sale Notice") no later than 10 days prior to the
-----------
Note Repayment Date.
(c) The completion of the purchase pursuant to Section 2.9(a)
shall take place at the principal office of the Company on the Note Repayment
Date. If the Note Repayment Amount is less than or equal to the aggregate
Repurchase Price of all of the shares of Directly Owned Class A Common Stock
owned by the Purchaser on the date the Purchaser's employment is terminated,
then the purchase pursuant to Section 2.9(a) hereto shall be completed on such
Note Repayment Date by the Company's cancellation of the Note and the delivery
of such cancelled Note to the Purchaser. If the Note Repayment Amount exceeds
the aggregate Repurchase Price of all of the shares of Directly Owned Class A
Common Stock owned by the Purchaser on the date the Purchaser's employment is
terminated, then the purchase
12
pursuant to Section 2.9(a) hereto shall be completed on such Note Repayment Date
by the Company's reduction of the aggregate outstanding principal amount of the
Note to reflect the repayment of a portion thereof equal to the aggregate
Repurchase Price of all of the shares of Directly Owned Class A Common Stock
owned by the Purchaser on the date the Purchaser's employment was terminated
(with the remaining outstanding principal amount of the Note subject to
repayment upon the terms set forth in the Note).
3. Other Covenants of the Purchaser.
---------------------------------
3.1. Holdback Agreement.
-----------------------
(a) The Purchaser hereby agrees that he or she will not sell,
transfer, make any short sale of, grant any option for the purchase of, or enter
into any hedging or similar transaction with the same economic effect as a sale,
regarding any Common Stock (or other securities) of the Company held by the
Purchaser (other than those included in the registration) for a period specified
by the representative of the underwriters of Common Stock (or other securities)
of the Company not to exceed one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act pursuant to which an Initial Public Offering is effected. The
Company may impose stop-transfer instructions with respect to the Common Stock
(or other securities) subject to the foregoing restriction until the end of said
one hundred eighty (180) day period. For the avoidance of doubt such agreement
shall apply only to the Initial Public Offering.
(b) The Purchaser agrees to execute and deliver such other
agreements as may be reasonably requested by the Company or the underwriter
which are consistent with the foregoing or which are necessary to give further
effect thereto.
3.2. Confidentiality. Purchaser will not at any time (whether during
--------------------
or after the Purchaser's employment with the Company or its Subsidiaries)
disclose, retain, or use for the Purchaser's own benefit, purposes or account or
the benefit, purposes or account of any other Person, other than the Company and
any of its Affiliates, any trade secrets, know-how, software developments,
inventions, formulae, technology, designs, databases and drawings, or any
property or confidential information of the Company or any of its Affiliates
relating to research, operations, finances, current and proposed products and
services, vendors, customers, advertising, costs, marketing, trading,
investment, sales activities, promotion or the business and affairs of the
Company generally, or of any Affiliate of the Company ("Confidential
------------
Information") without the written authorization of the Company; provided that
----------- -------- ----
the foregoing shall not apply to information which is not unique to the Company
or which is generally known to the industry or the public other than as a result
of the Purchaser's breach of this covenant or the wrongful acts of others who
were under confidentiality obligations as to the item or items involved. Except
as required by law, the Purchaser will not disclose to anyone, other than
Purchaser's immediate family and legal or financial advisors, the existence or
contents of this Agreement; provided that the Purchaser may disclose to any
prospective future employer the provisions of this Section 3.2 provided they
agree to maintain the confidentiality of such terms. The Purchaser agrees that
upon termination of the Purchaser's employment with the Company or its
Subsidiaries for any reason, the Purchaser will return to the Company
immediately all reports, memoranda, books, papers, plans, information, lists,
letters and other data, and all copies thereof
13
or therefrom, in any way relating to the business of the Company or any of its
Affiliates, except that the Purchaser may retain only those portions of personal
notes, notebooks and diaries that do not contain Confidential Information of the
type described in the preceding sentence. The Purchaser further agrees that the
Purchaser will not retain or use for the Purchaser's own benefit, purposes or
account or the benefit, purposes or account of any other Person, other than the
Company and any of its Affiliates, at any time any trade names, trademark,
service ▇▇▇▇, Internet domain names, other proprietary business designation,
patent, or other intellectual property used or owned in connection with the
business of the Company or its Affiliates.
3.3. Discharge of Indebtedness. Any Transfer of Shares Subject to
------------------------------
Repurchase by the Purchaser shall be void and of no effect unless and until the
Net Proceeds (as defined below) directly or indirectly received by the Purchaser
in respect thereof shall have been applied to the prepayment, first, of the
accrued and unpaid interest on the Note and, second, to the unpaid principal
amount of the Note; provided, however, that, notwithstanding the foregoing, the
-------- -------
Purchaser and his or her Permitted Transferees may Transfer Shares Subject to
Repurchase to any other Permitted Transferee of the Purchaser (including
Transfers back to the Purchaser) without the repayment and discharge of any
portion of principal and interest on the Note or such other indebtedness which
is not then due and owing so long as, in case of the Note, (i) the Note remains
secured pursuant to the Pledge Agreement to the same extent as would have been
the case had such transfer not occurred and (ii) the Purchaser remains liable
for all indebtedness outstanding under the Note. The term "Net Proceeds" shall
------------
mean the total proceeds received from the disposition of Shares Subject to
Repurchase, minus an amount equal to the sum of (A) the federal income tax
liability that would be payable in respect of the gain recognized upon such
disposition, after giving effect to any deduction for state or local income tax
liability described in clause (B) below, assuming a tax rate equal to the
maximum federal income tax rate on long term or short term capital gains in
effect at the time of disposition, whichever is applicable, and (B) any state or
local income tax liability that would be payable in respect of such gain,
assuming the maximum applicable state and local capital gain income tax rate on
dispositions of such Shares Subject to Repurchase.
3.4. Assignment of Options Proceeds; Transfer of DCP Plan Account
-----------------------------------------------------------------
Balances. The Purchaser will indicate on Row 7 of Schedule I an assignment of
--------
options proceeds only for those options that the Purchaser has validly tendered
and not withdrawn prior to the date hereof. The Purchaser will indicate on Row
2 of Schedule I only the number of stock fund units under the DCP Plan to be
acquired by the Purchaser through his or her transfer of account balances
currently allocated to the DCP Plan insurance fund investment alternatives.
3.5.Section 83(b) Election. The Purchaser shall make an election
--------------------------
pursuant to section 83(b) of the Code, in the form attached hereto as Exhibit F,
with respect to any Shares Subject to Repurchase.
4. Miscellaneous.
-------------
4.1. Effectiveness; Termination. This Agreement will be effective
-------------------------------
upon receipt of a confirmatory e-mail from the Purchaser with respect to his or
her desire to purchase shares of Directly Owned Class A Common Stock following
the effectiveness of the Registration Statement; provided that the Company has
received from the Purchaser a copy of this Agreement
14
duly executed by the Purchaser and, if applicable, his or her spouse, with a
properly completed Schedule I attached, and will terminate with respect to the
provisions referred to below as follows: (i) with respect to Article 2 (other
than Sections 2.5, 2.7 and 2.8), on the Lapse Date; (ii) with respect to
Sections 2.5 and 2.7, upon a Qualified Initial Public Offering; and (iii) with
respect to all Sections (including, without limitation, all of Article 2 other
than Section 2.9) other than Sections 2.9, 3.1, 3.2 and 3.3, upon (A) the sale
of all or substantially all of the equity interests in the Company to a third
party resulting in a Change of Control, whether by merger, consolidation, share
exchange, tender offer or otherwise, (B) the closing of a Majority Sale (other
than Section 2.5(c), which shall survive such Majority Sale) resulting in a
Change of Control, or (C) the approval in writing by the Company and the
Purchaser.
4.2. Additional Shares.
-----------------------
(a) The Purchaser agrees that, subject to Section 4.2(b) hereto,
any other shares of Directly Owned Class A Common Stock which he or she shall
hereafter acquires (including, without limitation, from Other Purchasers) by
means of a stock split, stock dividend, distribution, exercise of stock options,
purchase, acquisition or otherwise shall be subject to the provisions of this
Agreement (other than Article 1) to the same extent as if held on the date
hereof. For the avoidance of doubt, the foregoing sentence (i) shall not
include, without limitation, any shares of Class A Common Stock (A) held in the
401(k) Plan prior to their distribution to the Purchaser pursuant to the terms
of the 401(k) Plan or (B) underlying stock fund units in the DCP Plan prior to
their distribution to the Purchaser pursuant to the terms of the DCP Plan, and
(ii) shall include, without limitation, shares of Class A Common Stock (A)
distributed to the Purchaser pursuant to the terms of the 401(k) Plan or the DCP
Plan and (B) Option Shares.
(b) Notwithstanding anything to the contrary stated herein, if
the Purchaser is a party to the Contribution Agreement, then all shares of Class
B Common Stock acquired by the Purchaser pursuant to the terms of the
Contribution Agreement (including, with respect to such shares of Class B Common
Stock, any additional shares of Class B Common Stock the Purchaser may hereafter
acquire by means of a stock split, stock dividend or similar distribution) shall
not be subject to the terms of this Agreement.
4.3. Third Party Beneficiaries. Except as set forth in Section 2.7(c)
------------------------------
hereto, no provision of this Agreement is intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
4.4. Purchaser's Employment or Engagement by the Company. Nothing
--------------------------------------------------------
contained in this Agreement shall be deemed to obligate the Company or any of
its Subsidiaries to employ or engage the Purchaser in any capacity whatsoever or
to prohibit or restrict the Company (or any such subsidiary) from terminating
the employment or engagement, if any, of the Purchaser at any time or for any
reason whatsoever, with or without Cause.
4.5. Non-Assignability. This Agreement will inure to the benefit of
-----------------------
and be binding on the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by any party hereto
without the express prior written consent of the other party, and any attempted
assignment, without such consents, will be null and void;
15
provided, however, that the Company may assign this Agreement to one or more of
-------- -------
its Affiliates without such consent; provided, further, that with respect to any
-------- -------
Person who acquires any shares of Directly Owned Class A Common Stock from the
Purchaser in compliance with the terms hereof: (a) the Purchaser shall, prior to
such Transfer, furnish to the Company written notice of the name and address of
such transferee, and (b) if such transferee is not an Other Purchaser, the
Purchaser and such transferee shall execute and deliver to the Company prior to
such Transfer an Assumption Agreement in the form of Exhibit E hereto (the
"Assumption Agreement"), whereby the Purchaser and such transferee shall assume
--------------------
and be entitled to the rights and obligations under this Agreement to the extent
described in the Assumption Agreement.
4.6. No Inconsistent Agreements. The Purchaser shall not enter into
-------------------------------
any agreement or other arrangement of any kind with any Person with respect to
any Securities that is inconsistent with the provisions of this Agreement or
that may impair his or her ability to comply with this Agreement.
4.7. Amendment; Waiver. This Agreement may be amended only by a
----------------------
written instrument signed by the parties hereto. No waiver by either party
hereto of any of the provisions hereof shall be effective unless set forth in a
writing executed by the party so waiving.
4.8. Governing Law; Jurisdiction. This Agreement shall be governed by
--------------------------------
and construed in all respects under the laws of the State of Delaware. Any
action to enforce which arises out of or in any way relates to any of the
provisions of this Agreement may be brought and prosecuted in such court or
courts located within the State of Delaware as provided by law, and the parties
consent to the jurisdiction of such court or courts located within the State of
Delaware and to service of process by registered mail, return receipt requested,
or by any other manner provided by Delaware law.
4.9. Notices. Any notices or communications permitted or required
------------
hereunder shall be deemed sufficiently given if hand-delivered, or sent by (x)
registered or certified mail return receipt requested, (y) telecopy or other
electronic transmission service (to the extent receipt is confirmed other than
by automatic means) or (z) by overnight courier, in each case to the parties at
their respective addresses and telecopy numbers set forth below, or to such
other address of which any party may notify the other party in writing.
(a) If to the Company, to it at the following address:
CBRE Holding, Inc.
c/o CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
16
with a copy to:
RCBA Strategic Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with another copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Purchaser or to any Permitted Transferee, to him
or her at his or her address or telecopy number as set forth on the signature
page hereto, with respect to the Purchaser, or the applicable Assumption
Agreement, with respect to any Permitted Transferee.
4.10. Integration. This Agreement and the documents referred to herein
-----------------
or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
4.11. Counterparts. This Agreement may be executed in two or more
------------------
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
4.12. Injunctive Relief. The Purchaser, on behalf of himself or
-----------------------
herself and his or her Permitted Transferees, and the Company, on its own behalf
and on behalf of its successors and assigns, each acknowledges and agrees that a
violation of any of the terms of this Agreement will cause the other irreparable
injury for which adequate remedy at law is not available. Accordingly, it is
agreed that the Company or the Purchaser, as the case may be, shall be entitled
to an injunction, restraining order or other equitable relief to prevent
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction in the United
States or any state thereof, in addition to any other remedy to which it or he
or she may be entitled at law or equity.
4.13. Severability. If one or more of the provisions, paragraphs,
-------------------
words, clauses, phrases or sentences contained herein, or the application
thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision, paragraph, word, clause, phrase or sentence in every other
17
respect and of the remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being intended that all
rights, powers and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
4.14. Rights to Negotiate. Nothing in this Agreement shall be deemed
--------------------------
to restrict or prohibit the Company from purchasing any Securities from the
Purchaser at any time upon such terms and conditions and at such price as may be
mutually agreed upon between the Company and the Purchaser, whether or not at
the time of such purchase circumstances exist which specifically grant the
Company the right to purchase, or the Purchaser the right to sell, Securities
pursuant to the terms of this Agreement.
4.15. Rights Cumulative; Waiver. The rights and remedies of the
--------------------------------
Purchaser and the Company under this Agreement shall be cumulative and not
exclusive of any rights or remedies which either would otherwise have hereunder
or at law or in equity or by statute, and no failure or delay by either party in
exercising any right or remedy shall impair any such right or remedy or operate
as a waiver of such right or remedy, nor shall any single or partial exercise of
any power or right preclude such party's other or further exercise or the
exercise of any other power or right. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by either party to exercise
any right or privilege hereunder shall be deemed a waiver of such party's rights
or privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
4.16. Interpretation. The words "hereof," "herein," and "hereunder"
--------------------- ------ ------ ---------
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified. The headings in this Agreement are included for
convenience of reference only and shall not limit or otherwise affect the
meaning or interpretation of this Agreement. The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of such
terms.
4.17. Shares Subject to the Incentive Plan and this Agreement. By
--------------------------------------------------------------
entering into this Agreement the Participant agrees and acknowledges that the
Participant has received a copy of the Incentive Plan. The shares of Directly
Owned Class A Common Stock purchased by the Purchaser pursuant to this Agreement
are subject to the Incentive Plan and this Agreement. In the event of a conflict
between any term or provision of the Incentive Plan and any term or provision of
this Agreement, the applicable terms and provisions of this Agreement will
govern and prevail.
4.18. Arbitration. Any dispute arising out of or relating to this
------------------
Agreement, including the breach, termination or validity hereof, shall be
exclusively and finally resolved by arbitration in accordance with the CPR Rules
for Non-Administered Arbitration by a sole arbitrator. The arbitration shall be
governed by the Federal Arbitration Act, 9 U.S.C. (S)(S) 1-16, and judgment upon
the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof. The place of the arbitration shall be Los Angeles,
California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CBRE HOLDING, INC.
By:_______________________________
Name:
Title:
PURCHASER:
__________________________________
Name:
Address:
Fax Number:
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Designated Manager
Subscription Agreement between CBRE Holding, Inc. and the Purchaser named
therein, I, ________________________________________________, the spouse of the
Purchaser named therein, do hereby join with my spouse in executing the
foregoing Designated Manager Subscription Agreement and do hereby agree to be
bound by all of the terms and provisions thereof.
Dated as of ______________ ____, 2001 ________________________________
[Spouse]
SCHEDULE I
Name of Purchaser: ___________________
Signature of Purchaser: ___________________
Date: ___________________
The Purchaser must fill in all of the blanks below (including filling
in a zero if applicable). All capitalized terms used in this Schedule I shall
have the meanings set forth in the Designated Manager Subscription Agreement
between the Purchaser and the Company.
Subscription of Shares for Direct Ownership
-------------------------------------------
1. Minimum number of shares that must be subscribed for by ___________________
the Purchaser to be eligible to receive a grant of
Options and to use a Note to pay a portion of the Total
Purchase Price (such minimum may be achieved through
purchase of Directly Owned Class A Common Stock and/or
stock fund units under the DCP Plan acquired by the
transfer of account balances currently allocated to the
DCP Plan insurance fund investment alternatives); such
minimum number to be separately provided to the
Purchaser by the Company
2. Number of stock fund units under the DCP Plan to be ___________________
acquired by Purchaser by the transfer of account
balances currently allocated to the DCP Plan insurance
fund investment alternatives
3. Minimum number of shares of Directly Owned Class A ___________________
Common Stock that the Purchaser must subscribe for to be
eligible to receive a grant of Options and to use a Note
to pay a portion of the Total Purchase Price (equals Row
1 minus Row 2)
-----
4. Number of shares of Directly Owned Class A Common Stock ___________________
that the Purchaser is subscribing for (which number may
be less than, equal to or greater than Row 3)
Purchase Price
--------------
5. Total Purchase Price (equal to Row 4 multiplied by
$16.00) $ _________________
6. Assigned Merger Proceeds (equal to Row 12 below) $ _________________
7. Assigned Options Proceeds (equal to Row 15 below) $ _________________
8. Note Consideration (may not be greater than (i) 50% of $ _________________
the amount obtained by multiplying Row 4 by $16.00 and
(ii) then subtracting the amount obtained by
multiplying Row 2 by $16.00)
9. New Cash Consideration (equal to Row 5 minus the $ _________________
amounts in Rows 6, 7 and 8)
Assigned Merger Proceeds
------------------------
10. Total number of shares of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services ___________________
Common Stock held by the Purchaser as the record owner
[to be separately provided to the Purchaser by the
Company]
11. Total proceeds to be received by the Purchaser $ __________________
in the Merger for his or her outstanding
shares of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock
owned of record (equal to Row 10 multiplied by $16.00
and subtracting all loans that must be repaid to CB
▇▇▇▇▇▇▇ ▇▇▇▇▇ Services in connection with the Merger)
[to be separately provided to the Purchaser by the
Company]
12. Total amount in Row 11 that Purchaser wants to use to $ _________________
purchase shares of Directly Owned Class A Common Stock
Assigned Options Proceeds
-------------------------
13. Total number of the Purchaser's CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ $ _________________
Services Options [to be separately provided to the
Purchaser by the Company]
14. Total proceeds net of any withholding tax Purchaser may $ _________________
elect to receive at the Effective Time for his or her CB
▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Options [to be separately provided
to the Purchaser by the Company]
15. Total amount in Row 14 that Purchaser wants to use to $ _________________
purchase shares of Directly Owned Class A Common Stock
EXHIBIT A
DEFINITIONS
As used in this Agreement, terms defined in the headings shall have
their respective assigned meanings, and the following capitalized terms shall
have the meanings ascribed to them below:
"Affiliate" means, with respect to any Person, (i) any Person that
---------
directly or indirectly controls, is controlled by or is under common control
with, such Person, or (ii) any director, officer, partner or employee of such
Person or any Person specified in clause (i) above, or (iii) any spouse, parent,
child, step-child, grandchild, step-grandchild or sibling of any Person
specified in clause (i) or (ii) above. As used in this definition of
"Affiliate" and in this Agreement, "control" (including, with correlative
---------
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise.
Notwithstanding anything to the contrary stated herein, the Company and its
Subsidiaries shall not be considered Affiliates of RCBA Strategic.
"Agreement" means this Designated Manager Subscription Agreement, as
---------
the same may be amended, supplemented or otherwise modified from time to time.
"Applicable Percentage" shall mean (i) for the period from the Closing
---------------------
Date through the day immediately preceding the first anniversary of the Closing
Date, 100%, (ii) for the period from the first anniversary of the Closing Date
through the date immediately preceding the second anniversary of the Closing
Date, 80%, (iii) for the period from the second anniversary of the Closing Date
through the day immediately preceding the third anniversary of the Closing Date,
60%, (iv) for the period from the third anniversary of the Closing Date through
the day immediately preceding the fourth anniversary of the Closing Date, 40%,
(v) for the period from the fourth anniversary of the Closing Date through the
day immediately preceding the fifth anniversary of the Closing Date, 20%, and
(vi) on and after the fifth anniversary of the Closing Date, 0%; provided,
--------
however, that in the event that the Purchaser's employment with, or engagement
-------
by, the Company and its Subsidiaries ends on a particular date for any reason,
then the Applicable Percentage in effect on such date pursuant to the foregoing
clauses (i) through (v) shall be the Applicable Percentage at all times
thereafter.
"Assigned Merger Proceeds" shall have the meaning ascribed to such
------------------------
term in Section 1.7(a) hereto.
"Assigned Options Proceeds" shall have the meaning ascribed to such
-------------------------
term in Section 1.7(b) hereto.
"Assumption Agreement" shall have the meaning ascribed to such term in
--------------------
Section 4.5 hereto.
"Board of Directors" means the Board of Directors of the Company.
------------------
"Business Day" means a day other than a Saturday, Sunday, holiday or
------------
other day on which commercial banks in New York City are authorized or required
by law to close.
A-2
"Cause" means (i) the willful failure of the Purchaser to perform his
-----
or her duties to the Company or its Subsidiaries which is not cured within 10
days following written notice, (ii) the conviction of the Purchaser of a felony,
(iii) willful malfeasance or misconduct by the Purchaser that is materially and
demonstrably injurious to the Company or its Subsidiaries, or (iv) the breach by
the Purchaser of the material terms of the Note, the Pledge Agreement or this
Agreement, including, without limitation, Section 2.1 and all of Article 3.
"CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services" means CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services, Inc., a
-------------------------
Delaware corporation and a direct wholly owned subsidiary of the Company, and
shall also include its successors by means of a merger, consolidation,
reorganization, recapitalization or similar transaction.
"CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock" means the shares of common
--------------------------------------
stock of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services, $0.01 par value per share.
"CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Options" means any option to purchase CB
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock outstanding under any stock option or
compensation plan or arrangement of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services, whether or not
vested.
"Change of Control" means (i) the sale or disposition, in one or a
-----------------
series of related transactions, of all, or substantially all, of the assets of
the Company to any "person" or "group," as defined in Sections 13(d)(3) or
14(d)(2) of the Exchange Act (other than RCBA Strategic and its Affiliates,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and their Affiliates or any group in which any of the foregoing
is a member); or (ii) or any person or group (other than RCBA Strategic and its
Affiliates, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and their Affiliates or any group in which any of the
foregoing is a member) is or becomes the beneficial owner, directly or
indirectly, of more than 50% of the total voting power of the voting stock of
the Company (including by way of merger, consolidation or otherwise) and the
representatives of RCBA Strategic and its Affiliates, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and their
Affiliates or any group in which any of the foregoing is a member, individually
or in the aggregate, cease to have the ability to elect a majority of the Board
of Directors.
"Class A Common Stock" means the Class A common stock, par value $.01
--------------------
per share, of the Company.
"Class B Common Stock" means the Class B common stock, par value $.01
--------------------
per share, of the Company.
"Closing" shall have the meaning ascribed to such term in Section 1.3
-------
hereto.
"Closing Date" shall have the meaning ascribed to such term in Section
------------
1.3 hereto.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor statute. Any reference herein to a particular
provision of the Code shall mean, where appropriate, the corresponding provision
in any successor statute.
"Common Stock" means the Class A Common Stock and Class B Common
------------
Stock, collectively.
A-3
"Common Stock Equivalents" means any stock, warrants, rights, calls,
------------------------
options or other securities exchangeable or exercisable for, or convertible
into, Common Stock.
"Company" shall have the meaning ascribed to such term in the preamble
-------
to this Agreement.
"Confidential Information" shall have the meaning ascribed to such
------------------------
term in Section 3.2 hereto.
"Contribution Agreement" means the Amended and Restated Contribution
----------------------
and Voting Agreement, dated as of May 31, 2001, by and among the Company,
Acquisition, RCBA Strategic, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and the
other parties thereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"Co-Sale Amount" shall have the meaning ascribed to such term in
--------------
Section 2.5(a) hereto.
"Cost" means the purchase price of $16.00 per share of Class A Common
----
Stock paid by the Purchaser, as adjusted by the Board of Directors in good faith
and on a consistent basis to reflect any stock splits, stock dividends,
recapitalizations and other similar transactions.
"DCP Plan" means the Deferred Compensation Plan of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------
Services.
"Designated Manager" means any employee of the Company and its
------------------
Subsidiaries that enters into an agreement in the form of this Agreement.
"Designated Manager Subscription Agreement" means the form of this
-----------------------------------------
agreement entered into by each of the Designated Managers.
"DGCL" means the Delaware General Corporation Law, as amended from
----
time to time.
"Directly Owned Class A Common Stock" means any shares of Class A
-----------------------------------
Common Stock directly held of record by the Purchaser, whether acquired pursuant
to (i) this Agreement, (ii) the exercise of Options, (iii) the receipt of
distributions from the 401(k) Plan or the DCP Plan, (iv) purchase or other
acquisition from any Other Employee or Other Purchaser or (v) any other means
either on the date hereof or in the future.
"Effective Time" shall have the meaning ascribed to such term in the
--------------
Merger Agreement.
"Employee Subscription Agreement" means any of the Employee
-------------------------------
Subscription Agreements entered into by an employee or independent contractor of
the Company and its Subsidiaries other than a Designated Manager in connection
with the Offerings.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
A-4
"Fair Market Value" shall mean, as of any date of determination, with
-----------------
respect to shares of Class A Common Stock, (x) prior to a Qualified Initial
Public Offering, the fair market value of the shares, disregarding any discount
for minority interest, restrictions on transfer of the shares or lack of
marketability of the shares, as determined in good faith by the Board of
Directors, and (y) subsequent to a Qualified Initial Public Offering, the price
per share of Class A Common Stock equal to the average of the last sales price
of a share of Class A Common Stock on each of the last five trading days prior
to the date of determination (the "FMV Calculation Period") on the principal
----------------------
national securities exchange on which the Class A Common Stock may at the time
be listed or, if there shall have been no sales on such principal national
securities exchange during the FMV Calculation Period, the average of the
closing bid and asked prices on such principal national securities exchange on
each day during the FMV Calculation Period or, if there are no such bid and
asked prices during the FMV Calculation Period, on the next preceding five dates
on which such bid and asked prices occurred or, if Class A Common Stock shall
not be so listed, the average of the closing sales prices as reported by NASDAQ
during the FMV Calculation Period in the over-the-counter market.
"Family Group" shall have the meaning ascribed to such term in Section
------------
2.2(a) hereto.
"401(k) Plan" means the Capital Accumulation Plan of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------
Services.
"▇▇▇▇▇▇▇ ▇▇▇▇▇▇" means FS Equity Partners III, L.P. and FS Equity
--------------
Partners International, L.P., collectively.
"Good Reason" means (i) a substantial diminution in the Purchaser's
-----------
position or duties with the Company or its Subsidiaries, an adverse change in
the reporting lines of the Purchaser, or the assignment to the Purchaser by the
Company or its Subsidiaries of duties materially inconsistent with his or her
position with the Company or its Subsidiaries; (ii) any reduction in the
Purchaser's base salary or any material adverse change in the Purchaser's bonus
opportunity; or (iii) the failure of the Company or its Subsidiaries to pay the
Purchaser's compensation or benefits when due; in each of the foregoing clauses
(i) through (iii), which is not cured within 30 days following the Company's
receipt of written notice from the Purchaser describing the event that would
constitute Good Reason if not cured within such period.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof, and any entity exercising legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Incentive Plan" means the 2001 CBRE Holding, Inc. Stock Incentive
--------------
Plan.
"Initial Public Offering" means the first Public Offering occurring
-----------------------
after the date hereof.
"Lapse Date" means the earlier of (x) the tenth anniversary of the
----------
Closing Date and (y) the date that is 180 days after a Qualified Initial Public
Offering is consummated.
"Majority Sale" shall have the meaning ascribed to such term in
-------------
Section 2.5(a) hereto.
A-5
"Merger" shall have the meaning ascribed to such term in the Merger
------
Agreement.
"Merger Agreement" means the Amended and Restated Agreement and Plan
----------------
of Merger, dated May 31, 2001, among the Company, ▇▇▇▇ ▇▇ Corp. and CB ▇▇▇▇▇▇▇
▇▇▇▇▇ Services.
"Merger Proceeds" means the amount set forth in Row 11 of Schedule I
---------------
hereto.
"Minimum Number of Shares" means the amount set forth in Row 3 of
------------------------
Schedule I hereto.
"NASDAQ" means the National Association of Securities Dealers
------
Automated Quotation System National Market.
"Net Proceeds" shall have the meaning ascribed to such term in Section
------------
3.3 hereto.
"New Cash Consideration" shall have the meaning ascribed to such term
----------------------
in Section 1.4(a)(ii) hereto.
"New Certificates" shall have the meaning ascribed to such term in
----------------
Section 1.3 hereto.
"Non-RCBA Strategic Party" means any Person other than RCBA Strategic
------------------------
or its Affiliates.
"Note" shall have the meaning ascribed to such term in Section
----
1.4(a)(iv) hereto.
"Note Consideration" shall have the meaning ascribed to such term in
------------------
Section 1.4(a)(iv) hereto.
"Note Repayment Amount" means the principal amount of the Note and all
---------------------
accrued and unpaid interest thereon as of the Note Repayment Date.
"Note Repayment Date" means the repayment date set forth in the Note.
-------------------
"Note Repayment Shares" shall have the meaning ascribed to such term
---------------------
in Section 2.9 hereto.
"Offerings" means the registered offerings to certain employees and
---------
independent contractors of the Company and its Subsidiaries pursuant to the
Company's Incentive Plan, which offerings include shares of Directly Owned Class
A Common Stock, shares of Class A Common Stock to be held in the 401(k) Plan,
and shares of Class A Common Stock underlying stock fund units held in the DCP
Plan.
"Old Certificates" shall have the meaning ascribed to such term in
----------------
Section 1.4(a)(iii) hereto.
"Options" mean any options to acquire Class A Common Stock, including
-------
without limitation, all options granted under the Incentive Plan.
A-6
"Option Agreement" means the form of option agreement pursuant to
----------------
which the Purchaser, upon satisfaction of the terms and conditions described in
the Prospectus, may be eligible to receive a grant of Options covering Option
Shares in connection with the Offerings.
"Options Payment Consent" means the form of Consent and Letter of
-----------------------
Transmittal previously distributed by, or on behalf of, CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
Services to each holder of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Options, pursuant to which
each such holder is being requested to consent to the cancellation at the
Effective Time of all CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Options held by such holder as
of the Effective Time, in exchange for an amount per share of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
Services Common Stock subject to such canceled CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Options
equal to the greater of (i) the excess, if any, of (A) $16.00 over (B) the
exercise price per share of CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Common Stock subject to
such canceled CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services Options and (ii) $1.00, in each case
minus any applicable withholding taxes.
"Options Proceeds" means the amount set forth in Row 14 of Schedule I
----------------
hereto.
"Option Shares" means all Class A Common Stock received by a Purchaser
-------------
upon the exercise or other settlement of Options.
"Other Employee" means any of the employees and independent
--------------
contractors of the Company and its Subsidiaries other than the Purchaser.
"Other Purchaser" means any Other Employee that has (i) purchased
---------------
Class A Common Stock from the Company and is party to a Designated Manager
Subscription Agreement or an Employee Subscription Agreement or (ii) received
Class A Common Stock pursuant to the DCP Plan or 401(k) Plan and has properly
executed and delivered a Stockholder Agreement (as defined in the DCP Plan or
401(k) Plan) prior to such receipt.
"Ownership" means, with respect to any Person, all matters related to
---------
such Person's and such Person's Affiliates' (i) beneficial ownership of Common
Stock, (ii) due authorization of a Transfer of such Common Stock, (iii) power to
Transfer such Common Stock, and (iv) non-violation of agreements, laws, etc.
relating to such Transfer of such Common Stock.
"Permitted Transferee" shall have the meaning ascribed to such term in
--------------------
Section 2.2(a) hereto.
"Person" means any individual, corporation, limited liability company,
------
partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, Governmental Authority or other entity of any nature
whatsoever.
"Pledge Agreement" shall have the meaning ascribed to such term in
----------------
Section 1.4(a)(iv) hereto.
"Proposed Transferee" shall have the meaning ascribed to such term in
-------------------
Section 2.5(a) hereto.
"Prospectus" means the prospectus included in the Registration
----------
Statement filed by the Company.
A-7
"Public Offering" means an underwritten offering of Securities to the
---------------
public pursuant to an effective registration statement filed under the
Securities Act.
"Purchaser" shall have the meaning ascribed to such term in the
---------
preamble to this Agreement.
"Purchasing Party" shall have the meaning ascribed to such term in
----------------
Section 2.7(a) hereto.
"Qualified Initial Public Offering" shall mean a Public Offering after
---------------------------------
the Effective Time pursuant to which the Class A Common Stock becomes listed on
a national securities exchange or on the NASDAQ.
"RCBA Strategic" means RCBA Strategic Partners, L.P., a Delaware
--------------
limited liability company, together with its successors.
"Registration Statement" means the Registration Statement on Form S-1
----------------------
filed with the SEC by the Company in connection with the Offerings.
"Regulations" means the regulations promulgated under the Code.
-----------
"Repurchase Notice" shall have the meaning ascribed to such term in
-----------------
Section 2.8(a) hereto.
"Repurchase Price" shall have the meaning ascribed to such term in
----------------
Section 2.8(b) hereto.
"Required Sale Notice" shall have the meaning ascribed to such term in
--------------------
Section 2.7(b) hereto.
"Requiring Parties" shall have the meaning ascribed to such term in
-----------------
Section 2.7(a) hereto.
"Sale Notice" shall have the meaning ascribed to such term in Section
-----------
2.9(b) hereto.
"Securities" means (i) shares of Common Stock, (ii) Common Stock
----------
Equivalents and (iii) other securities of the Company other than debt securities
that are not Common Stock Equivalents.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"SEC" means the Securities and Exchange Commission.
---
"Shares Subject to Repurchase" shall mean at any time, the Minimum
----------------------------
Number of Shares applicable to the Purchaser (as adjusted in good faith and on a
consistent basis by the Board of Directors to reflect any stock splits, stock
dividends, recapitalizations and other similar corporate transactions) times the
Applicable Percentage.
A-8
"Stockholders" means RCBA Strategic, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Purchaser,
------------
the Other Purchasers and all of the other holders of Common Stock.
"Stock Power" shall have the meaning ascribed to such term in Section
-----------
1.4(a)(iii) hereto.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, association or other business entity of which fifty percent (50%)
or more of the total voting power of shares of capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof, or fifty percent (50%) or more of the
equity interest therein, is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of such
Person or a combination thereof.
"Total Purchase Price" shall have the meaning ascribed to such term in
--------------------
Section 1.1(a) hereto.
"Transfer" means any transfer, sale, assignment, distribution,
--------
exchange, mortgage, pledge, hypothecation or other disposition of any Securities
or any interest therein, including transfers by operation of law in connection
with a merger transaction or otherwise.
"Transferring Stockholders" shall have the meaning ascribed to such
-------------------------
term in Section 2.5(a) hereto.
EXHIBIT B
FORM OF FULL RECOURSE NOTE
[to come]
EXHIBIT C
FORM OF PLEDGE AGREEMENT
[to come]
EXHIBIT D
FORM OF STOCK POWER
FOR VALUE RECEIVED,_____________________________________________________________
hereby sell(s), assign(s) and transfer(s) unto__________________________________
________________________________________________________________________________
________________________________________________________________________________
(_______) Shares of the ____________ Stock of __________________ standing in
my(our) name(s) on the books of said Corporation represented by Certificate(s)
No(s).________________________________ herewith, and do(es) hereby irrevocably
constitute and appoint __________________________________ attorney to transfer
the said stock on the books of said Corporation with full power of substitution
in the premises.
Dated: ___________________________
___________________________
[Purchaser]
EXHIBIT E
FORM OF ASSUMPTION AGREEMENT
[DATE]
CBRE Holding, Inc.
c/o CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Dear Sir or Madam:
Reference is made to the Designated Manager Subscription Agreement, dated
as of _________ ___, 2001 (the "Designated Manager Subscription Agreement"),
between CBRE Holding, Inc. and the undersigned Purchaser. All capitalized terms
not otherwise defined herein shall have the meanings given to them in the
Designated Manager Subscription Agreement.
In consideration of the representations, covenants and agreements contained
in the Designated Manager Subscription Agreement, the undersigned Permitted
Transferee hereby confirms and agrees that he or she shall be bound by the
following provisions thereof as if such Permitted Transferee were a Purchaser:
Articles 2 (other than Section 2.9), 3 and 4.
Notwithstanding anything to the contrary stated herein or in the Designated
Manager Subscription Agreement, the Purchaser shall remain bound by, and subject
to, each of the provisions of the Designated Manager Subscription Agreement in
accordance with the terms thereof.
This Assumption Agreement will be governed by, and construed in accordance
with, the laws of the State of Delaware applicable to contracts executed and to
be performed entirely within that state.
Very truly yours,
PERMITTED TRANSFEREE:
______________________________
Name:
Address:
Fax Number:
PURCHASER:
______________________________
Name:
EXHIBIT F
SECTION 83(b) ELECTION
Purchaser must (1) file using certified mail, return receipt requested, the
original executed copy of this statement within 30 days of the Closing Date (as
defined in Designated Manager Subscription Agreement) at the Internal Revenue
Service office where he or she will file his or her income tax return for 2001;
(2) deliver a copy of this completed and executed statement with the
subscription documents to CBRE Holding, Inc., c/o CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇; and (3)
attach a copy of this statement to his or her tax return for the taxable year
ending December 31, 2001.
STATEMENT MADE PURSUANT TO UNITED STATES INTERNAL
REVENUE CODE SECTION 83(b) AND THE REGULATIONS THEREUNDER
I hereby elect under Internal Revenue Code Section 83(b) to include in
income for my taxable year ending December 31, 2001, the excess, if any, of the
fair market value over the amount I paid for the property described in paragraph
2 below. In compliance with Treasury Regulations Section 1.83-2(e), I hereby
furnish the following information:
(1) Name:________________________________________
Address:_____________________________________
_____________________________________
_____________________________________
Social Security Number:______________________
Employer: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services, Inc.
------------------------------------
(2) I have acquired __________ shares in CBRE Holding, Inc., for
which this election is being made.
(3) This election is being made for my taxable year ending
December 31, 2001. The property is to be transferred on __________, 2001.
(4) If I terminate my employment with CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ Services,
Inc., my shares are subject to repurchase pursuant to the terms of the
Designated Manager Subscription Agreement.
(5) The fair market value of my shares in CBRE Holding, Inc. is
$16.00 per share on the date of the transfer.
(6) The price paid for my shares in CBRE Holding, Inc. is $16.00
per share.
(7) A copy of this statement has been furnished to my employer.
E-2
(8) I shall attach a copy of this statement to my United States
tax return for my taxable year ending December 31, 2001.
____________________________ ________________________________
Date Signature