<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 14, 1997
KOLL REAL ESTATE GROUP, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-17189 02-0426634
(Commission File Number) (I.R.S. Employer Identification No.)
4343 Von Karman Avenue, Newport Beach, California 92660
(Address of principal executive offices) (Zip Code)
(714) 833-3030
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address,
if Changed Since Last Report)
<PAGE>
Item 3. BANKRUPTCY OR RECEIVERSHIP
On July 14, 1997, Koll Real Estate Group, Inc. (the "Company") filed a
voluntary petition for relief under Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") with the United States Bankruptcy Court
for the District of Delaware, Midland Plaza, 824 Market Street, Wilmington,
Delaware 19801 (the "Court"). An order for relief was entered. Pursuant to
Sections 1007(a) and 1108 of the Bankruptcy Code, the Company is authorized
to continue to operate its business and manage its properties as a debtor in
possession. No trustee, examiner or similar officer has been appointed by the
Bankruptcy Court.
The Company's direct and indirect subsidiaries and affiliates have not
filed for bankruptcy protection, are not involved in the proceeding and
continue to operate their respective businesses in the ordinary course.
Contemporaneously with the filing of the bankruptcy petition the
Company filed a proposed prepackaged plan of reorganization (the "Prepackaged
Plan") and the Company's solicitation of acceptances of the Prepackaged Plan
in the form of the Proxy Statement/Prospectus and Disclosure Statement, dated
as of May 1, 1997 (the "Disclosure Statement"), pursuant to Section 1126(b)
of the Bankruptcy Code. On or about May 6, 1997, the Prepackaged Plan and
Disclosure Statement were sent to all classes of impaired creditors,
debentureholders and equity security holders of record as of April 24, 1997,
voting thereon and acceptances of the Prepackaged Plan were solicited. As of
June 23, 1997, the Company had received the requisite acceptances for
confirmation of the Prepackaged Plan.
The Prepackaged Plan provides for a restructuring of the Company's
capital structure. The only impaired parties under the Prepackaged Plan are
the holders of (a) the 12% Senior Subordinated Pay-In-Kind Debentures due
March 15, 2002, (b) the 12% Subordinated Pay-In-Kind Debentures due March 15,
2002, (c) non-contingent, liquidated claims and (d) equity securities of the
Company. The Prepackaged Plan does not alter the Company's obligations to its
other creditors, including its trade creditors, customers, employees, holders
of contingent and unliquidated claims, holders of guaranty claims, and
parties to contracts with the Company.
A hearing to consider the Disclosure Statement, any objections
thereto, the method of solicitation of votes to accept or reject the
Prepackaged Plan, and any other matter that may properly come before the
court will be held before the Honorable Helen S. Balick, Chief United States
Bankruptcy Judge of the Bankruptcy Court, on August 19, 1997 at 3:30 p.m.
(Standby) (Eastern time) or as soon thereafter as counsel may be heard (the
"Disclosure Statement Hearing"). A hearing to consider confirmation of the
Prepackaged Plan, any objections thereto, and any other matter that may
properly come before the Court (the "Confirmation Hearing"), shall be held
before the Honorable Helen S. Balick immediately following the Disclosure
Statement Hearing referred to above, or at such later time as determined by
the Bankruptcy Court and announced at the Disclosure Statement Hearing. The
Disclosure Statement Hearing or Confirmation Hearing may be adjourned from
time to time without further notice other than an announcement of the
adjourned date or dates at such hearings or adjournments thereof.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits:
Exhibit No. Description
------------ -----------
99.1 Prepackaged Plan of Reorganization of Koll Real
Estate Group, Inc.
2.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KOLL REAL ESTATE GROUP, INC.
Date: July 21, 1997 By /s/ Raymond J. Pacini
------------------------------
Raymond J. Pacini
Executive Vice President and
Chief Financial Officer
3.
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Exhibit 99.1
PREPACKAGED PLAN OF REORGANIZATION
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re
Chapter 11
KOLL REAL ESTATE
GROUP, INC. Case No. 97-1505 (HSB)
Debtor.
PREPACKAGED PLAN OF REORGANIZATION
OF KOLL REAL ESTATE GROUP, INC.
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PREPACKAGED PLAN OF REORGANIZATION
OF KOLL REAL ESTATE GROUP, INC.
ARTICLE I
DEFINITIONS
Unless the context otherwise requires, the following terms shall have the
following meanings when used in initially capitalized form in the Prepackaged
Plan. Such meanings shall be equally applicable to both the singular and plural
forms of such terms. The words "herein," "hereof" and "hereunder" and other
words of similar import refer to the Prepackaged Plan as a whole and not to any
particular section, subsection, or clause contained in the Prepackaged Plan
unless the context requires otherwise. Whenever from the context it appears
appropriate, each term stated in either the singular or the plural includes the
singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender include the masculine, feminine and the neuter. Any term used in
initially capitalized form in the Prepackaged Plan that is not defined herein
but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the
meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules.
ADMINISTRATIVE CLAIM means a Claim for payment of an administrative expense
of a kind specified in section 503(b) of the Bankruptcy Code and referred to in
section 507(a)(1) of the Bankruptcy Code, including, without limitation, the
actual, necessary costs and expenses incurred after the commencement of the
Reorganization Case of preserving the Estate and operating the business of the
Debtor, including wages, salaries or commissions for services, compensation for
legal and other services and reimbursement of expenses awarded under section
330(a) or 331 of the Bankruptcy Code, certain retiree benefits under section
1114(e)(2) of the Bankruptcy Code, and all fees and charges assessed against the
Estate under section 1930 of Chapter 123 of Title 28, United States Code.
AFFILIATE means with respect to the Debtor, any corporation, partnership or
other entity which, directly or indirectly, controls, is controlled by or is
under common control with the Debtor, excluding natural persons. With respect to
any entity other than the Debtor, a governmental unit or a natural person,
affiliate means any corporation, partnership, association or other entity which,
directly or indirectly, controls, is controlled by or is under common control
with such entity. For purposes of this definition, the term "control" means the
ownership of more than 20% of the beneficial or voting interest in the
corporation or other entity referred to herein.
ALLOWED ADMINISTRATIVE CLAIM means all or that portion of any
Administrative Claim which (a) has been allowed by a Final Order, (b) was
incurred by the Debtor in the ordinary course of business during the
Reorganization Case, or (c) relates to any payment for retiree benefits required
to be made before the Prepackaged Plan is confirmed, pursuant to section
1114(e)(2) of the Bankruptcy Code.
ALLOWED CLAIM means that portion of any Claim, other than an Administrative
Claim or a Contested Claim, (a) as to which, on or prior to the Bar Date, (i) no
proof of claim has been filed with the Court and (ii) the liquidated
non-Contingent amount of which is scheduled by the Debtor pursuant to the
Bankruptcy Code as undisputed, (b) as to which a proof of claim has been filed
in a liquidated non-Contingent amount with the Court on or prior to the Bar
Date, provided that (i) no objection to the allowance of such Claim or motion to
expunge or limit recovery of such Claim has been interposed or (ii) if such
objection or motion has been filed, such objection or motion has been overruled
by a Final Order, or such Claim has been otherwise allowed by a Final Order, and
(c) a Claim against the Debtor that is allowed (i) in any contract, instrument,
or other agreement entered into in connection with the Prepackaged Plan, or (ii)
pursuant to the terms of the Prepackaged Plan.
ALLOWED INTEREST means that portion of any Interest, other than a contested
Interest, of record held prior to the Effective Date, as to which, (a) no
objection to the allowance of such Interest or motion to expunge or limit
recovery of such Interest has been interposed or (b) if such objection or motion
has been
2
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filed, such objection or motion has been overruled by a Final Order, or such
Interest has been otherwise allowed by a Final Order.
AMENDED AND RESTATED BYLAWS means the Amended and Restated Bylaws of the
Reorganized Debtor which shall be substantially in the form set forth in Exhibit
2.
AMENDED AND RESTATED CERTIFICATE means the Amended and Restated Certificate
of Incorporation of the Reorganized Debtor which shall be substantially in the
form set forth in Exhibit 1.
BANKRUPTCY CODE means chapter 11, Title 11 of the United States Code, 11
U.S.C. Section 101 ET SEQ., as amended.
BANKRUPTCY COURT means the United States Bankruptcy Court for the District
of Delaware, or such other court that exercises jurisdiction over the
Reorganization Case, including the United States District Court of the District
of Delaware to the extent reference of the Reorganization Case is withdrawn.
BANKRUPTCY RULES means the Federal Rules of Bankruptcy Procedure, as
amended, promulgated under 28 U.S.C. Section 2075 and the local rules of
practice and procedure of the Court, as applicable, from time to time in the
Reorganization Case.
BAR DATE means the date set by the Court as the last date for filing proofs
of Claims against and Interests in the Debtor, and with respect to Claims
arising from the rejection of executory contracts or unexpired leases, the
earlier of the date set forth in the order rejecting such executory contract or
unexpired lease or thirty (30) days after the Confirmation Date.
BUSINESS DAY means any day except Saturday, Sunday or any other day on
which commercial banks in Los Angeles, California are authorized by law to be
closed for business.
CAPITAL STOCK COMBINATION means the combination of the Class A Common
Stock, Class B Common Stock (none of which is outstanding), and Preferred Stock
into one (1) combined class and series (the "Capital Stock Combination")
designated "Common Stock" and having the same rights that the Class A Common
Stock had prior to the Capital Stock Combination.
CASH means cash and cash equivalents.
CLAIM means a claim against the Debtor, whether or not asserted, as defined
in section 101(5) of the Bankruptcy Code.
CLASS means a category of holders of Claims or Interests as classified in
Article III of the Prepackaged Plan pursuant to section 1123(a)(1) of the
Bankruptcy Code.
CLASS A COMMON STOCK means all the outstanding Class A Common Stock, par
value $0.05 per share, of the Company.
COMMON STOCK means the approximately 11,952,929 shares of the Reorganized
Debtor's new common stock having a par value of $0.05 per share being issued
pursuant to the Prepackaged Plan.
COMPANY means Koll Real Estate Group, Inc., a Delaware corporation.
CONFIRMATION DATE means the date on which the Court enters the Confirmation
Order.
CONFIRMATION ORDER means the order confirming this Prepackaged Plan
pursuant to section 1129 of the Bankruptcy Code.
CONSUMMATION means the occurrence of the Effective Date.
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CONTESTED CLAIM OR INTEREST means any Claim or Interest against which the
Debtor or the Reorganized Debtor, as the case may be, or any other party in
interest, has filed an objection to the allowance of such Claim or Interest or a
motion to expunge or limit the recovery of such Claim or Interest and which
objection or motion has not been withdrawn or overruled by a Final Order.
CONTINGENT means a Claim is contingent as to liability if the debt is one
which the debtor may be called upon to pay only upon the occurrence or happening
of an extrinsic event which will trigger the liability of the debtor to the
alleged creditor.
CREDITOR means any holder of a Claim.
DEBTOR means the Company, when acting in its capacity as representative of
the Estate.
DEBENTURE HOLDERS' COMMITTEE means the group of restricted holders of the
Outstanding Debentures organized prior to the Petition Date to negotiate with
the Company regarding the Recapitalization.
DELAWARE GENERAL CORPORATION LAW means Title 8 of the Delaware Code, as now
in effect or hereafter amended.
DISTRIBUTION RECORD DATE means the Business Day immediately preceding the
Effective Date.
EFFECTIVE DATE means a date selected by the Reorganized Debtor that is no
more than ten (10) Business Days following the date on which all conditions to
consummation set forth in Section 8.2 of the Prepackaged Plan have been
satisfied or waived.
ESTATE means the bankruptcy estate of the Company created by section 541 of
the Bankruptcy Code upon the commencement of the Reorganization Case.
EXCHANGE AGENT means the entity or entities designated pursuant to Section
7.2 of the Prepackaged Plan to make distributions under the Prepackaged Plan.
EQUITY HOLDER means a holder of an Interest.
FINAL ORDER means an order or judgment entered by the Court or any other
court exercising jurisdiction over the subject matter and the parties (i) that
has not been reversed, stayed, modified or amended, (ii) as to which no appeal,
certiorari proceeding, reargument, or other review or rehearing has been
requested or is still pending, and (iii) as to which the time for filing a
notice of appeal or petition for certiorari shall have expired.
IMPAIRED means a Claim or Interest that is impaired within the meaning of
section 1124 of the Bankruptcy Code.
INDENTURE TRUSTEES means the trustee under the Indenture dated July 15,
1992 governing the Senior Debentures and the Indenture dated July 15, 1992
governing the Subordinated Debentures.
LITIGATION CLAIMS means all Claims against the Company asserted under
lawsuits or complaints which are pending as of the commencement of the
Reorganization Case in state or federal court, unless the Company (i) allows the
Claim for voting purposes, (ii) files a proof of claim on behalf of the
Creditor, and the Court allows the Claim of the Creditor under the Prepackaged
Plan.
INTEREST means the rights of the owners of the issued and outstanding
shares of any class of stock of the Debtor or the rights of the owners of
warrants issued by the Debtor.
1993 STOCK OPTION PLAN means the Company's 1993 Stock Option/Stock Issuance
Plan.
OTHER CLASS 5 CLAIMS means all Allowed Claims in Class 5 other than those
relating to the Senior Debentures.
OUTSTANDING DEBENTURES means collectively the Senior Debentures and the
Subordinated Debentures.
PETITION DATE means the date on which the Company files its chapter 11
bankruptcy petition.
4
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PREPACKAGED PLAN means this Prepackaged Plan of Reorganization, together
with any exhibits or schedules attached hereto, as they may be amended, modified
or supplemented by the Debtor from time to time in accordance with the
provisions set forth herein, in the Bankruptcy Code and in the Bankruptcy Rules.
PREFERRED STOCK means all of the outstanding Series A Convertible
Redeemable Preferred Stock of the Company.
PRIORITY CLAIM means a Claim for an amount entitled to priority under
section 507(a) of the Bankruptcy Code, other than an Administrative Claim or a
Tax Claim.
PROSPECTUS means the Proxy Statement/Prospectus and Disclosure Statement of
the Company dated April , 1997.
NET CLAIM means the amount owed to Affiliates, after allowing for the set
off of the respective Affiliates' Claims owed to the Debtor.
RECAPITALIZATION means the capital restructuring of the Company whereby all
Senior Debentures and Subordinated Debentures are exchanged for Common Stock of
the Reorganized Debtor.
REORGANIZATION CASE means the Debtor's case under chapter 11 of the
Bankruptcy Code.
REORGANIZED DEBTOR means the Debtor on and after the Confirmation Date, and
the entity that shall succeed to all of the rights and obligations of the Debtor
under the Prepackaged Plan.
REVERSE STOCK SPLIT means the one for one hundred (l:100) reverse stock
split of the outstanding Common Stock to be effected by the Debtor immediately
following the Capital Stock Combination.
SECURED CLAIM means any Claim of a creditor secured by a valid, perfected
and enforceable lien on any property of the Estate, but only to the extent such
Claim constitutes a secured claim under section 506 or 1111(b) of the Bankruptcy
Code.
SENIOR DEBENTURE INDENTURE means the Indenture dated July 15, 1992
governing the Senior Debentures.
SENIOR DEBENTURES means all of the outstanding 12% Senior Subordinated
Pay-In-Kind Debentures due March 15, 2002.
SENIOR DEBT means Senior Debt as defined in the Senior Debenture Indenture
and the Subordinated Debenture Indenture.
SUBCLASS means a category of holders of Claims or Interests within a Class.
SUBORDINATED DEBENTURES means all of the outstanding 12% Subordinated
Pay-In-Kind Debentures due March 15, 2002.
SUBORDINATED DEBENTURE INDENTURE means the Indenture dated July 15, 1992
governing the Subordinated Debentures.
TAX CLAIM means a Claim for an amount entitled to priority under section
507(a)(7), 507(a)(8) and 502(i) of the Bankruptcy Code, other than a Claim for a
penalty.
UNIMPAIRED means a Claim or Interest that is not impaired within the
meaning of section 1124 of the Bankruptcy Code.
UNLIQUIDATED means if the amount of the Claim cannot be ascertained by a
mere computation, based on the terms of the obligation or on some other accepted
standard.
Unless otherwise specified herein, any reference to an entity as a holder of
a Claim or Interest includes that entity's successors, assigns, and affiliates.
5
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ARTICLE II
TREATMENT OF UNCLASSIFIED ADMINISTRATIVE AND TAX CLAIMS
2.1 ADMINISTRATIVE CLAIMS. Unless otherwise agreed to by the parties, each
holder of an Allowed Administrative Claim shall receive cash equal to the unpaid
portion of such Allowed Administrative Claim on the later of (a) the Effective
Date, and (b) the date on which such Claim becomes an Allowed Administrative
Claim; PROVIDED, HOWEVER, that Administrative Claims that represent liabilities
incurred by the Debtor in the ordinary course of its business during the
Reorganization Case shall be paid in the ordinary course of business and in
accordance with any terms and conditions of any agreements relating thereto.
2.2 TAX CLAIMS. On the Effective Date, each holder of a Tax Claim (a)
shall be paid cash in an amount equal to the amount of its Allowed Claim, or
shall be paid on account of its Allowed Claim on such other terms as have been
or may be agreed to between such holder and the Debtor, or (b) shall receive on
account of its Allowed Claim deferred cash payments, in equal quarterly
installments over a period not exceeding six years after the date of assessment
of such Tax Claim, of a value, as of the Effective Date, equal to the amount of
such Allowed Claim. The amount of any Tax Claim that is not an Allowed Claim,
and the rights of the holder of such Claim, if any, to payment in respect
thereof shall (a) be determined in the manner in which the amount of such Claim
and the rights of the holder of such Claim would have been resolved or
adjudicated if the Reorganization Case had not been commenced, (b) survive the
Effective Date and the consummation of the Prepackaged Plan as if the
Reorganization Case had not been commenced, and (c) not be discharged pursuant
to Section 9.1 of the Prepackaged Plan and section 1141 of the Bankruptcy Code.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
This classification of Claims and Interests is made for purposes of voting
on the Prepackaged Plan and making distribution hereunder and for ease of
administration hereof. A Claim or Interest shall be deemed classified in a
particular Class only to the extent that the Claim or Interest qualifies within
the description of that Class.
3.1 CLASS 1--PRIORITY CLAIMS. Class 1 consists of all Priority Claims, not
otherwise treated as unclassified in Article II above.
3.2 CLASS 2--SECURED CLAIMS. Class 2 consists of each Claim secured by a
security interest in or lien upon property of the Company, including, but not
limited to, Claims secured by (i) mortgages or trust deeds on real property,
(ii) mechanics' or materialmen's liens, (iii) security deposits, or (iv) liens
on miscellaneous personal property such as office furniture, telephone systems,
copiers and mailing equipment. Each Class 2 Secured Claim shall be treated for
all purposes of the Prepackaged Plan and under the Bankruptcy Code as a separate
Subclass of Class 2.
3.3 CLASS 3--UNLIQUIDATED OR CONTINGENT CLAIMS. Class 3 consists of all
Claims of holders of Unliquidated or Contingent Claims, including, but not
limited to, Litigation Claims.
3.4 CLASS 4--AFFILIATES' CLAIMS. Class 4 consists of all Net Claims of
Affiliates.
3.5 CLASS 5--GENERAL UNSECURED CLAIMS. Class 5 consists of all general
unsecured Claims of Creditors against the Company, however arising, and not
included in any other Class in the Prepackaged Plan or otherwise provided for in
the Prepackaged Plan, including (i) Senior Debentures, and (ii) Claims for
damages resulting from the rejection of leases or executory contracts.
3.6 CLASS 6--SUBORDINATED DEBENTURES. Class 6 consists of all Claims of
holders of Subordinated Debentures.
3.7 CLASS 7--PREFERRED STOCK. Class 7 consists of all Interests of holders
of Preferred Stock.
3.8 CLASS 8--CLASS A COMMON STOCK. Class 8 consists of all Interests of
holders of Class A Common Stock.
3.9 CLASS 9--WARRANTS. Class 9 consists of all Interests of holders of
outstanding warrants.
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ARTICLE IV
TREATMENT OF CLASSES UNDER THE PLAN
SUMMARY
<TABLE>
<CAPTION>
CLASS STATUS
- --------------------------------------------------------------------- ------------------------------------
<S> <C>
Class 1--Priority Claims Unimpaired; deemed to have accepted
the Prepackaged Plan
Class 2--Secured Claims Unimpaired; deemed to have accepted
the Prepackaged Plan
Class 3--Unliquidated or Contingent Claims Unimpaired; deemed to have accepted
the Prepackaged Plan
Class 4--Affiliates' Claims Impaired; while such claimants
deemed to have rejected the
Prepackaged Plan, the Company
shall cause such holders to
support the Prepackaged Plan
Class 5--General Unsecured Claims Impaired; entitled to vote
Class 6--Claims of Holders of Subordinated Debentures Impaired; entitled to vote
Class 7--Interests of Holders of Preferred Stock Impaired; entitled to vote
Class 8--Interests of Holders of Class A Common Stock Impaired; entitled to vote
Class 9--Interests of Holders of Warrants Impaired; deemed to have rejected
the Prepackaged Plan
</TABLE>
4.1 PRIORITY CLAIMS. Class 1 Claims are Unimpaired. Unless otherwise
agreed to by the parties, each holder of an Allowed Claim in Class 1 shall be
paid the allowed amount of such Claim in full in cash on the later of (a) the
Effective Date, and (b) the date such Claim becomes an Allowed Claim.
4.2 SECURED CLAIMS. Class 2 Claims are Unimpaired. Unless otherwise agreed
to by the parties, either (a) the legal, equitable and contractual rights of
each holder of an Allowed Claim in any Subclass of Class 2 shall be unaltered by
the Prepackaged Plan, or (b) at the option of the Debtor, any Allowed Claim in
any Subclass of Class 2 shall be treated in any other manner that will result in
such Allowed Claim being deemed Unimpaired under section 1124 of the Bankruptcy
Code. To the extent not previously paid, any accrued and unpaid interest due on
the Secured Claims will be paid in Cash on the Effective Date.
4.3 UNLIQUIDATED OR CONTINGENT CLAIMS. Class 3 Claims are Unimpaired. The
legal, equitable and contractual rights of the holders of Class 3 Claims shall
not be affected by the Prepackaged Plan, Class 3 Claims shall survive the
discharge provided for in Section 9.1 of the Prepackaged Plan and section 1141
of the Bankruptcy Code, and the rights of a holder of such Claim and the rights
of such holder of such Claim to payment, if any, in respect thereof shall be
determined in the manner in which the amount of such Claim and the rights of the
holder of such Claim would have been resolved or adjudicated if the
Reorganization Case had not been commenced.
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4.4 AFFILIATES' CLAIMS. Class 4 Claims are Impaired. The holders of
Allowed Net Claims, if any, in Class 4 shall receive no distributions nor retain
any property under the Prepackaged Plan on account of such Allowed Net Claims.
4.5 GENERAL UNSECURED CLAIMS. Class 5 Claims are Impaired. In the event
Classes 6, 7 and 8 accept the Prepackaged Plan, on the Effective Date, without
regard to the subordination provisions in the Senior Debenture Indenture but
giving effect to the rights of Senior Debt, each holder of Senior Debentures
will receive 56 shares of Common Stock on a post-Capital Stock Combination and
post-Reverses Stock Split basis for each $1,000 principal amount of Senior
Debentures it holds and each holder of a liquidated non-Contingent Claim will
receive 56 shares of Common Stock on a post-Capital Stock Combination and post-
Reverse Stock Split basis for each $1,000 principal amount of Allowed Claim.
Collectively, holders of Class 5 Claims shall hold approximately 81% of the
outstanding shares of the Common Stock of the Reorganized Debtor on the
Effective Date. If Class 6, 7, or 8 fails to accept the Prepackaged Plan, the
holders of the Senior Debentures shall enforce the subordination provisions of
the Senior Debenture Indenture with respect to such rejecting Class of Claims
and/or Interests and the Prepackaged Plan shall be deemed automatically amended
pursuant to Article V.
4.6 SUBORDINATED DEBENTURES. Class 6 Claims are Impaired. Subject to
Article V, on the Effective Date, each holder of an Allowed Claim in Class 6
shall receive 28 shares of Common Stock on a post-Capital Stock Combination and
post-Reverse Stock Split basis for each $1,000 principal amount of Subordinated
Debentures it holds. Collectively, holders of Class 6 Claims shall hold
approximately 10% of the outstanding shares of the Common Stock of the
Reorganized Debtor on the Effective Date.
4.7 PREFERRED STOCK. Class 7 Interests are Impaired. Subject to Article V,
on the Effective Date, after giving effect to the Capital Stock Combination and
the Reverse Stock Split, each holder of an Allowed Interest in Class 7 shall be
deemed to hold on a one and three quarter for one (1.75:1) basis Common Stock.
4.8 CLASS A COMMON STOCK. Class 8 Interests are Impaired. Subject to
Article V, on the Effective Date, after giving effect to the Capital Stock
Combination and the Reverse Stock Split, each holder of an Allowed Interest in
Class 8 shall be deemed to hold on a one for one (1:1) basis Common Stock.
4.9 WARRANTS. Class 9 Interests are Impaired. On the Effective Date, all
outstanding warrants shall be cancelled.
4.10 ACCRUAL OF INTEREST. Distributions of Common Stock to holders of
Outstanding Debentures will be based upon the principal amount of the
Outstanding Debentures as of March 15, 1997.
4.11 FRACTIONAL SHARES. (a) CAPITAL STOCK COMBINATION AND REVERSE STOCK
SPLIT. If the Capital Stock Combination or the Reverse Stock Split creates a
fraction of a share of Common Stock, holders of an Allowed Class 7 or 8
Interest, respectively, shall not receive or be deemed to hold any fractional
shares. All fractional shares which would otherwise have been created by the
Capital Stock Combination or the Reverse Stock Split shall be aggregated and
after the Effective Date, such shares shall be sold in the market by the
Exchange Agent and the net proceeds thereof disbursed pro rata to the holders of
Allowed Class 7 and 8 Interests based upon the fraction of the shares each
holder would have been entitled to receive or would have been deemed to hold had
the Company authorized the issuance of fractional shares.
(b) DEBENTURE/CLAIM EXCHANGE. Whenever any distribution of a fraction of a
share of Common Stock to any holder of an Allowed Class 5 or 6 Claim would
otherwise be called for, all such fractional shares will be aggregated and after
the Effective Date, the shares will be sold in the market by the Exchange Agent
and the net proceeds thereof disbursed prorata to the holders of Allowed Class 5
and Class 6 Claims based upon the fraction of the shares each such holder would
have been entitled to receive or deemed to hold had the Company authorized the
issuance of fractional shares.
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ARTICLE V
REALLOCATION OF DISTRIBUTIONS FOR NONCONSENSUAL CONFIRMATION
5.1 HOLDERS OF SUBORDINATED DEBENTURES FAIL TO ACCEPT THE PREPACKAGED
PLAN. In the event that the holders of Allowed Claims in Class 6 shall, as a
Class, fail to accept the Prepackaged Plan as set forth in Section 6.3 of the
Prepackaged Plan, then (a) the Prepackaged Plan shall be deemed automatically
amended without further action by the Debtor such that (i) the distributions
which would otherwise have been made in accordance with Section 4.6 of the
Prepackaged Plan shall be made to holders of Allowed Claims in Class 5, (ii) the
holders of Allowed Claims in Class 6 shall receive no distributions nor retain
any property under the Prepackaged Plan on account of such Allowed Claims, (iii)
the existing Subordinated Debentures held by holders of Class 6 Allowed Claims
shall be deemed to be cancelled, and (iv) such holders shall be deemed to have
rejected the Prepackaged Plan pursuant to section 1126(g) of the Bankruptcy
Code; and (b) the Debtor shall seek to confirm the Prepackaged Plan as so
automatically amended pursuant to this Article, in accordance with section
1129(b) of the Bankruptcy Code.
5.2 HOLDERS OF PREFERRED STOCK FAIL TO ACCEPT THE PREPACKAGED PLAN. In the
event that the holders of Allowed Interests in Class 7 shall, as a Class, fail
to accept the Prepackaged Plan as set forth in Section 6.3 of the Prepackaged
Plan, then (a) the Prepackaged Plan shall be deemed automatically amended
without further action by the Debtor such that (i) the Common Stock which would
otherwise have been retained by the holders of the Preferred Stock in accordance
with Section 4.7 of the Prepackaged Plan shall be delivered by the Exchange
Agent to holders of Allowed Claims in Class 5, (ii) the holders of Allowed
Interests in Class 7 shall receive no distributions nor retain any property
under the Prepackaged Plan on account of such Allowed Interests, (iii) the
Preferred Stock held by holders of Allowed Interests in Class 7 shall be deemed
to be cancelled and, (iv) such holders shall be deemed to have rejected the
Prepackaged Plan pursuant to section 1126(g) of the Bankruptcy Code; and (b) the
Debtor shall seek to confirm the Prepackaged Plan as so automatically amended
pursuant to this Article, in accordance with section 1129(b) of the Bankruptcy
Code.
5.3 HOLDERS OF CLASS A COMMON STOCK FAIL TO ACCEPT THE PREPACKAGED
PLAN. In the event that the holders of Allowed Interests in Class 8 shall, as a
Class, fail to accept the Prepackaged Plan as set forth in Section 6.3 of the
Prepackaged Plan, then (a) the Prepackaged Plan shall be deemed automatically
amended without further action by the Debtor such that (i) the Common Stock
which would otherwise have been retained by the holders of the Class A Common
Stock in accordance with Section 4.8 of the Prepackaged Plan shall be delivered
by the Exchange Agent to holders of Allowed Claims in Class 5, (ii) the holders
of Allowed Interests in Class 8 shall receive no distributions nor retain any
property under the Prepackaged Plan on account of such Allowed Interests, (iii)
the Class A Common Stock held by holders of Allowed Interests in Class 8 shall
be deemed to be cancelled, and (iv) such holders shall be deemed to have
rejected the Prepackaged Plan pursuant to section 1126(g) of the Bankruptcy
Code; and (b) the Debtor shall seek to confirm the Prepackaged Plan as so
automatically amended pursuant to this Article, in accordance with section
1129(b) of the Bankruptcy Code.
ARTICLE VI
ACCEPTANCE OR REJECTION OF THE PLAN
6.1 UNIMPAIRED CLASSES. The Allowed Claims in Classes 1, 2 and 3 are
Unimpaired under the Prepackaged Plan and the holders of such Allowed Claims are
conclusively presumed to have accepted the Prepackaged Plan.
6.2 IMPAIRED CLASSES TO VOTE ON PREPACKAGED PLAN. The Allowed Claims in
Classes 5 and 6 and the Allowed Interests in Classes 7 and 8 are Impaired;
consequently, the holders in such Classes are entitled to vote to accept or
reject the Prepackaged Plan. The holders of Allowed Interests in Classes 4 and 9
are
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conclusively presumed to have rejected the Prepackaged Plan. The Company shall
cause the holders of Class 4 Claims (which it controls) to support the
Prepackaged Plan.
6.3 ACCEPTANCE BY IMPAIRED CLASSES. An Impaired Class of Claims shall have
accepted the Prepackaged Plan if the Prepackaged Plan is accepted by the holders
(other than any holder designated under section 1126(e) of the Bankruptcy Code)
that hold at least two-thirds (2/3) in amount and more than one-half (1/2) in
number of the Allowed Claims of such Class that have voted to accept or reject
the Prepackaged Plan. An Impaired Class of Interests shall have accepted the
Prepackaged Plan if the Prepackaged Plan is accepted by the holders (other than
any holder designated under section 1126(e) of the Bankruptcy Code) that hold at
least two-thirds (2/3) in amount of the Allowed Interests of such Class that
have voted to accept or reject the Prepackaged Plan.
6.4 NONCONSENSUAL CONFIRMATION/CRAMDOWN. In the event that any Impaired
Class of Claims or Class of Interests shall fail to accept the Prepackaged Plan
in accordance with Section 1129(a)(8) of the Bankruptcy Code, the Debtor
reserves the right to (i) seek to have the Court confirm the Prepackaged Plan in
accordance with Section 1129(b) of the Bankruptcy Code, or (ii) modify the
Prepackaged Plan in accordance with Section 13.5 of the Prepackaged Plan.
ARTICLE VII
MEANS FOR IMPLEMENTATION OF THE PLAN
7.1 CONTINUED CORPORATE EXISTENCE AND VESTING OF ASSETS IN THE REORGANIZED
DEBTOR. The Debtor shall, as a Reorganized Debtor, continue to exist after the
Effective Date as a separate corporate entity, with all powers of a corporation
under the laws of the State of Delaware and without prejudice to any right to
alter or terminate such existence (whether by merger or otherwise) under such
applicable state law. Except as otherwise expressly provided in the Prepackaged
Plan on the Confirmation Date, the Reorganized Debtor shall be vested with all
of the property of the Estate free and clear of all claims, liens, encumbrances,
charges and other interests of creditors and equity security holders, and may
operate its businesses free of any restrictions imposed by the Bankruptcy Code
or by the Court, including, without limitation, any contracts or leases entered
into or assumed by the Debtor after the Petition Date; PROVIDED, HOWEVER, that
the Reorganized Debtor shall continue as a debtor in possession under the
Bankruptcy Code until the Effective Date, and, thereafter, the Reorganized
Debtor may operate its business free of any restrictions imposed by the
Bankruptcy Code or the Court.
7.2 EXCHANGE AGENT. The Debtor may designate an entity or entities to
serve as Exchange Agent to distribute all the property to be distributed under
the Prepackaged Plan, including, without limitation, the delivery of the Common
Stock in exchange for the Outstanding Debentures and as replacement for the
Preferred Stock and Class A Common Stock.
7.3 PREPACKAGED PLAN IMPLEMENTATION STEPS. On or as soon as practicable
after the Effective Date (unless otherwise expressly indicated), the following
actions shall be effectuated in the following sequential order:
(a) AMENDMENTS TO CERTIFICATE OF INCORPORATION. The Reorganized Debtor
shall file its Amended and Restated Certificate with the office of the
Secretary of State of the State of Delaware in accordance with Section 103
of the Delaware General Corporation Law. The Amended and Restated
Certificate will, among other things, provide (to the extent necessary to
effectuate the terms of the Prepackaged Plan) for (i) the prohibition of the
issuance of non-voting equity securities, (ii) the authorization of 18
million shares of Common Stock, (iii) the Reverse Stock Split, (iv) the
Capital Stock Combination, (v) the elimination of the provisions providing
for the Company's Board of Directors to be classified into three classes
with staggered terms, (vi) the removal of all supermajority voting
provisions, and (vii) the elimination of the provisions prohibiting stock
holders from acting by written consent.
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(b) AMENDMENTS TO BYLAWS. The Reorganized Debtor shall adopt and effect
the Amended and Restated Bylaws which shall provide for, among other things,
(i) the elimination of the provisions providing for the Company's Board of
Directors to be classified into three classes with staggered terms, and (ii)
the removal of all supermajority voting provisions.
(c) CAPITAL STOCK COMBINATION. To the extent necessary to effectuate the
Prepackaged Plan, the Reorganized Debtor shall effect the Capital Stock
Combination whereby the Class A Common Stock, Class B Common Stock (none of
which is outstanding), and Preferred Stock are combined into one (1) class
and series designated "Common Stock" having the same rights that the Class A
Common Stock had prior to the Capital Stock Combination. Pursuant to the
Capital Stock Combination, each share of outstanding Preferred Stock will be
reclassified to be one and three quarter (1.75) shares of Common Stock and
each outstanding share of Class A Common Stock will be reclassified to be
one share of Common Stock.
(d) REVERSE STOCK SPLIT. To the extent necessary to effectuate the
Prepackaged Plan, the Reorganized Debtor shall effect the Reverse Stock
Split.
(e) DELIVERY OF AUTHORIZED SHARES. The Reorganized Debtor shall deliver
the shares of Common Stock authorized for issuance to the Exchange Agent for
delivery to the holders of Allowed Claims and Allowed Interests in
accordance with the Prepackaged Plan.
(f) DEBENTURE EXCHANGE. The Exchange Agent shall deliver to holders of
Outstanding Debentures and Other Class 5 Claims, Common Stock in accordance
with the Prepackaged Plan.
(g) 1993 STOCK OPTION PLAN. The Reorganized Debtor shall execute an
amendment to the 1993 Stock Option Plan which shall be substantially in the
form attached as Exhibit 3.
7.4 EXCHANGE OF PREFERRED AND COMMON STOCK. Subject to Article V, upon
presentment of certificates evidencing Preferred Stock and Class A Common Stock,
the Exchange Agent shall deliver to holders thereof, Common Stock.
7.5 CANCELLATION OF SECURITIES AND AGREEMENTS. On the Effective Date, all
Outstanding Debentures, Class A Common Stock, Class B Common Stock (none of
which is outstanding), Preferred Stock and warrants shall be cancelled. Also, on
the Effective Date, the Senior Debenture Indenture and the Subordinated
Debenture Indenture shall be cancelled.
7.6 DIRECTORS. After giving effect to the Amended and Restated Certificate
and the Amended and Restated Bylaws, there shall be a declassification of the
Board of Directors of the Company. The Reorganized Debtor's Board of Directors
shall be comprised of ten (10) directors, four (4) of whom are present directors
of the Company and six (6) of whom have been designated by the members of the
Debenture Holders' Committee in consultation with the Debtor. The names of the
present directors and director nominees are set forth in the Prospectus. Any
changes from that set forth in the Prospectus shall be disclosed at or prior to
the hearing to consider confirmation of the Prepackaged Plan. All such directors
shall be deemed elected, and those directors not continuing in office shall be
deemed removed therefrom, effective on the Effective Date, pursuant to the
Confirmation Order. Such directors' tenure and the manner of selection of new
directors shall be as provided in the Amended and Restated Certificate and the
Amended and Restated Bylaws.
7.7 OFFICERS. On the Effective Date, the existing officers of the
Reorganized Debtor shall be retained and shall remain as officers and shall
continue to serve until such time as they may resign, be removed or be replaced.
7.8 EMPLOYMENT CONTRACTS. On the Confirmation Date, the Company will
assume the Employment Contracts with certain executive officers and directors of
the Company as disclosed on Exhibit 4 to the Prepackaged Plan. In addition, from
and after the Effective Date, the Reorganized Debtor may enter into employment
contracts with any other officer, agent or employee.
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7.9 CORPORATE ACTION. The adoption of the Amended and Restated
Certificate, the Amended and Restated Bylaws, the selection of directors and
officers for the Reorganized Debtor, the issuance and distribution of the Common
Stock, execution and delivery of all contracts, leases, instruments, releases,
and other agreements related to any of the foregoing; and the other matters
provided for under the Prepackaged Plan involving the corporate action to be
taken by or required of the Reorganized Debtor shall be deemed to have occurred
and be effective as provided herein, and shall be authorized and approved in all
respects without any requirement of further action by stockholders or directors
of the Debtor or Reorganized Debtor.
7.10 SOURCES OF CASH FOR PREPACKAGED PLAN DISTRIBUTION. All Cash necessary
for the Reorganized Debtor to make payments pursuant to the Prepackaged Plan
shall be obtained from existing Cash balances, under existing debt agreements,
the operations of the Debtor or Reorganized Debtor, or from the sale of
fractional shares of Common Stock as described in Section 4.11 of the
Prepackaged Plan. The Reorganized Debtor may also make such payments using Cash
received from its subsidiaries in the ordinary course of its business, either by
way of advances or dividends.
ARTICLE VIII
CONDITIONS PRECEDENT
8.1 CONDITIONS TO CONFIRMATION. It is a condition to confirmation of the
Prepackaged Plan that the Confirmation Order include provisions:
(a) authorizing the Reorganized Debtor to adopt and file the Amended and
Restated Certificate;
(b) authorizing the Reorganized Debtor to adopt and effect the Amended
and Restated Bylaws;
(c) authorizing the Capital Stock Combination;
(d) authorizing the Reverse Stock Split;
(e) authorizing the Reorganized Debtor to issue authorized shares of
Common Stock and to deliver such shares to the Exchange Agent;
(f) authorizing and directing the Exchange Agent to deliver the Common
Stock to holders of Other Class 5 Claims, the Outstanding Debentures, the
Preferred Stock and the Class A Common Stock in accordance with the
Prepackaged Plan and to sell aggregated fractional shares and to distribute
the proceeds in accordance with Section 4.11 of the Prepackaged Plan;
(g) authorizing the Reorganized Debtor to amend and assume the 1993
Stock Option Plan;
(h) giving effect to the releases set forth in Section 9.4 of the
Prepackaged Plan;
(i) giving effect to the injunction set forth in Section 9.5 of the
Prepackaged Plan;
(j) authorizing all of the other transactions contemplated by the
Prepackaged Plan in order to effectuate the Prepackaged Plan; and
(k) making the provisions of the Confirmation Order non-severable and
mutually dependent.
8.2 CONDITIONS TO CONSUMMATION. The Confirmation Order shall contain the
provisions set forth in Section 8.1 of the Prepackaged Plan and the Confirmation
Order shall have become a Final Order before the Prepackaged Plan will be
consummated.
8.3 WAIVER OF CONDITIONS. The Debtor may waive any condition set forth in
this Article VIII at any time, without notice, without leave of or order of the
Court, and without any formal action other than proceeding to consummate the
Prepackaged Plan.
ARTICLE IX
EFFECTS OF PLAN CONFIRMATION
9.1 DISCHARGE. Except as otherwise expressly provided in the Prepackaged
Plan, the confirmation of the Prepackaged Plan shall (i) bind all holders of
Claims and Interests, whether or not they accept the Prepackaged Plan, and (ii)
discharge and release, pursuant to section 1141(d)(1) of the Bankruptcy Code,
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the Debtor effective immediately from any Claim, Interest or any "debt" (as that
term is defined in section 101(12) of the Bankruptcy Code) that arose or was
incurred before the Confirmation Date, and completely extinguish the Debtor's
and the Reorganized Debtor's liability in respect thereof, including, without
limitation, any liability of a kind specified in section 502(g) of the
Bankruptcy Code, regardless of whether: (a) a proof of the Claim or Interest was
filed, or the Interest or Claim was scheduled by the Debtor, (b) the Claim or
Interest is an Allowed Claim or Allowed Interest, as the case may be, or (c) the
holder of such Claim or Interest voted to accept or reject, or abstained from
voting on, the Prepackaged Plan. In addition, except as otherwise provided in
the Prepackaged Plan, confirmation of the Prepackaged Plan pursuant to the
Confirmation Order acts as a discharge and release, effective as of the
Confirmation Date, as to each holder of a Claim or Interest receiving or
entitled to receive any distribution under the Prepackaged Plan in respect of
any direct or indirect right, Claim or Interest such holder had or may have had
against or in the Debtor. On and after the Confirmation Date, as to every
discharged Claim and Interest, every holder of a Claim and Interest shall be
precluded from asserting against the Debtor or the Reorganized Debtor or its
assets or properties any further Claim or Interest based on any document or
instrument or act, omissions, transaction or other activity of any kind or
nature that occurred prior to the Confirmation Date.
9.2 RETENTION OF CAUSES OF ACTION/RESERVATION OF RIGHTS.
(a) Nothing contained in the Prepackaged Plan or the Confirmation Order
shall be deemed to be a waiver or relinquishment of any rights or causes of
action that the Debtor or the Reorganized Debtor may have currently or which
the Reorganized Debtor may choose to assert on behalf of the Estate under
any provision of the Bankruptcy Code or any similar applicable
non-bankruptcy law, including, without limitation, (i) the avoidance of any
transfer by or obligation of the Company or the Debtor or (ii) the turnover
of any property to the Estate, all of which are expressly reserved by the
Prepackaged Plan.
(b) Nothing contained in the Prepackaged Plan or the Confirmation Order
shall be deemed to be a waiver or relinquishment of any claim, cause of
action, right of setoff, or other legal or equitable defense which the
Company had immediately prior to the Petition Date, against or with respect
to any Claim left unaltered or Unimpaired by the Prepackaged Plan. The
Reorganized Debtor shall have, retain, reserve and be entitled to assert all
such claims, causes of action, rights of setoff and other legal or equitable
defenses which it had immediately prior to the Petition Date fully as if the
Chapter 11 Case had not been commenced; and all of the Reorganized Debtor's
legal and equitable rights respecting any Claim left unaltered or Unimpaired
by the Prepackaged Plan may be asserted after the Confirmation Date to the
same extent as if the Chapter 11 Case had not been commenced.
9.3 POST-CONSUMMATION EFFECT OF EVIDENCES OF CLAIMS OR INTERESTS.
Outstanding Debentures, stock certificates and other evidences of Claims
against or Interests in the Debtor shall, effective upon the Effective Date,
represent only the right to participate in the distributions contemplated
by the Prepackaged Plan.
9.4 RELEASE. Except as otherwise expressly provided in the Prepackaged
Plan, on the Effective Date, in consideration for, or as part of, the treatment
accorded to the holders of Impaired Claims and Interests under the Prepackaged
Plan, each holder of an Impaired Claim or Interest against or in the Debtor
shall be deemed to have released the Debtor from any and all causes of action
and claims, in law or in equity, whether based on tort, fraud, contract or
otherwise, which arose prior to the date of the filing of the Chapter 11 Case.
9.5 LIMITED RELEASE OF DIRECTORS, OFFICERS AND EMPLOYEES. As of the
Effective Date, the Debtor shall be deemed to have waived and released its
present and former directors, officers and employees from any and all claims of
the Debtor (including claims which the Debtor or Debtor in Possession otherwise
has legal power to assert, compromise or settle in connection with its Chapter
11 Case) arising on or prior to the Effective Date; PROVIDED HOWEVER, that this
provision shall not operate as a waiver or release of any claim (i) in respect
to any loan, advance or similar payment by the Debtor to any such person, (ii)
in respect of any contractual obligation owed by such person to the Debtor, or
(iii) or to the extent based upon or attributable to such person gaining in fact
a personal profit to which such person was not legally
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entitled, including, without limitation, profits made from the purchase or sale
of equity securities of the Debtor which are recoverable by the Debtor pursuant
to section 16(b) of the Securities Exchange Act of 1934, as amended.
9.6 TERM OF INJUNCTIONS OR STAYS. Unless otherwise provided, all
injunctions or stays provided for in the Reorganization Case pursuant to section
105 or 362 of the Bankruptcy Code or otherwise in effect on the Confirmation
Date shall remain in full force and effect until the Effective Date.
9.7 EXCULPATION. Neither the Company, the Reorganized Debtor nor any of
their respective officers, directors, employees, advisors, agents or
representatives shall have or incur any liability to any holder of a Claim or
Interest for any act or omission in connection with or arising out of their
solicitation of votes on or their administration of the Prepackaged Plan or the
property to be distributed under the Prepackaged Plan except for any liabilities
which may arise under the statutes or regulations administered by the Securities
and Exchange Commission or from willful misconduct or gross negligence, and, in
all respects, shall be entitled to rely upon the advice of counsel with respect
to their duties and responsibilities under the Prepackaged Plan.
ARTICLE X
CONTESTED CLAIMS AND CONTESTED INTERESTS
10.1 OBJECTIONS TO CLAIMS AND INTERESTS. The Debtor may object to the
allowance of Claims or Interests filed with the Bankruptcy Court. From and after
the Effective Date, the Reorganized Debtor, or any entity chosen by the
Reorganized Debtor, shall have the exclusive responsibility for reviewing and
objecting to the allowance of Claims and Interests. All objections shall be
litigated to a Final Order; PROVIDED, HOWEVER, that the Debtor or the
Reorganized Debtor, as the case may be, may compromise and settle any objections
to Claims or Interests, subject to the approval of the Court, and may seek Court
estimation of Contested Claims or Contested Interests pursuant to section 502(c)
of the Bankruptcy Code.
10.2 DISTRIBUTIONS. At such time as a Contested Claim or Contested
Interest becomes an Allowed Claim or Allowed Interest, in whole or in part, the
holder of such Claim or Interest shall receive the property that would have been
distributed to such holder under the Prepackaged Plan if such Allowed Claim or
Allowed Interest was an Allowed Claim or Allowed Interest on the Effective Date.
Such distributions shall be made as soon as practicable after the date that the
order or judgment of the Court allowing such Claim or Interest becomes a Final
Order.
10.3 RESERVED COMMON STOCK. At the time distributions to holders of Class
5 Claims are made, the Exchange Agent shall reserve shares of Common Stock
sufficient to satisfy the full amount to which the holder of any Contested Claim
may be entitled to under the Prepackaged Plan. The Exchange Agent shall hold the
Common Stock so reserved pursuant to this section and shall not distribute such
Common Stock to other Creditors. Upon any such Contested Claim becoming an
Allowed Claim, the number of shares of Common Stock then due to the Creditor in
respect of such Allowed Claim shall be distributed to such Creditor.
Distributions with respect to an Allowed Claim shall be made in accordance with
the provisions of the Plan. The distribution to each holder of an Allowed Claim
shall be made as soon as reasonably practicable after the date that the order or
judgment of the Bankruptcy Court allowing such Claim becomes a Final Order.
After all Contested Claims have been resolved, the Exchange Agent shall deliver
to the Company the excess Common Stock to be held as authorized and unissued.
ARTICLE XI
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
11.1 ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES. On the
Effective Date, and to the extent permitted by applicable law all executory
contracts and unexpired leases of the Debtor shall be assumed in accordance with
the provisions of section 365 and section 1123 of the Bankruptcy Code, excluding
(a) any and all executory contracts or unexpired leases which are the subject of
separate motions filed pursuant to section 365 of the Bankruptcy Code by the
Debtor prior to the commencement of the hearing on confirmation of the
Prepackaged Plan, (b) such contracts or leases as are listed on any
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"Schedule of Rejected Executory Contracts and Unexpired Leases" filed by the
Debtor on or before entry of the Confirmation Order, all of which contracts or
leases shall be deemed rejected pursuant to the provisions of section 365 and
section 1123 of the Bankruptcy Code, and (c) any and all executory contracts or
unexpired leases rejected prior to entry of the Confirmation Order.
Contracts or leases entered into after the Petition Date will be performed
by the Reorganized Debtor in the ordinary course of business. Without limiting
the generality of the foregoing, the agreements set forth on Exhibit 4 attached
hereto will be deemed assumed immediately prior to the Effective Date in
accordance with the provisions and requirements of sections 365 and 1123 of the
Bankruptcy Code.
11.2 CLAIMS BASED ON REJECTION OF EXECUTORY CONTRACTS OR UNEXPIRED
LEASES. Any Claims arising out of the rejection of contracts or leases must be
filed with the Court within the time set by any Final Order rejecting an
executory contract or unexpired lease or 30 days after the Confirmation Date.
Any Claims not filed within such time will be forever barred from assertion
against the Debtor or Reorganized Debtor, its estate and property. Unless
otherwise ordered by the Bankruptcy Court or provided in this Prepackaged Plan,
all such Claims for which proofs of Claim are required to be filed will be
treated as General Unsecured Claims.
11.3 INDEMNIFICATION OBLIGATIONS. Notwithstanding any provision of the
Prepackaged Plan to the contrary, the obligations of the Company or the Debtor
to indemnify its present and former directors, controlling persons, officers,
affiliates, employees, advisors or agents against any obligations pursuant to
its Amended and Restated Certificate, Amended and Restated Bylaws, applicable
state law or specific agreement, or any combination of the foregoing, shall
survive confirmation of the Prepackaged Plan, remain unaffected thereby, and not
be discharged, irrespective of whether indemnification is owed in connection
with an event occurring before or after the Petition Date.
ARTICLE XII
RETENTION OF JURISDICTION
12.1 RETENTION OF JURISDICTION. Notwithstanding the entry of the
Confirmation Order or the Effective Date having occurred, the Court shall retain
jurisdiction to (a) determine any Contested Claims, (b) determine requests for
payment of Claims entitled to priority under section 507(a)(1) of the Bankruptcy
Code, including compensation of and reimbursement of expenses of parties
entitled thereto, (c) resolve controversies and disputes regarding
interpretation and implementation of the Prepackaged Plan, (d) enter orders in
aid of the Prepackaged Plan, including, without limitation, appropriate orders
(which may include contempt or other sanctions) to protect the Debtor and the
Reorganized Debtor, (e) modify the Prepackaged Plan pursuant to Section 13.6 of
the Prepackaged Plan, (f) determine any and all applications, adversary
proceedings and contested or litigated matters pending on the Effective Date,
(g) allow, disallow, estimate, liquidate or determine any Claim or Interest and
to enter or enforce any order requiring the filing of any such Claim before a
particular date, (h) determine any and all pending applications for the
rejection or disaffirmance of executory contracts or leases, or for the
assignment of assumed executory contracts and leases, and to hear and determine,
and if need to be liquidate, any and all Claims arising therefrom, (i) determine
any actions or controversies arising under or in connection with the Prepackaged
Plan, the Prospectus, the Confirmation Order, or any contract, instrument,
release, or other agreement created in connection with the Prepackaged Plan or
the Prospectus, (j) enter and implement orders as are necessary or appropriate
if the Confirmation Order is for any reason modified, stayed, reversed, revoked
or vacated, and (k) enter a final decree closing the Reorganization Case.
12.2 FAILURE OF COURT TO EXERCISE JURISDICTION. If the Court abstains from
exercising or declines to exercise jurisdiction, or is otherwise without
jurisdiction over any matter arising out of the Reorganization Case, including
the matters set forth in this Article XII, this Article shall not prohibit or
limit the exercise of jurisdiction by any other court having competent
jurisdiction with respect to such matter.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 DISTRIBUTION RECORD DATE. As of the close of business on the
Distribution Record Date, the respective transfer registers for the Senior
Debentures and Subordinated Debentures as maintained by the Debtor, the
respective Indenture Trustees, or their respective agents, shall be closed and
the transfers of the Outstanding Debentures, or any interest therein, will be
prohibited. Moreover, the Exchange Agent shall have no obligation to recognize
the transfer of the Outstanding Debentures in Classes 5 and 6 occurring after
the Distribution Record Date, and shall be entitled for all purposes herein to
recognize and deal only with those holders of record as of the close of business
on the Distribution Record Date.
13.2 SURRENDER OF INSTRUMENTS--DEBENTURE HOLDERS. As a condition to
participation under the Prepackaged Plan, each holder of an Outstanding
Debenture evidencing a Claim that desires to receive the Common Stock to be
distributed on account of an Allowed Claim based on such debenture shall
surrender such debenture to the Reorganized Debtor, or its designee, and shall
execute and deliver such other documents as are necessary to effectuate the
Prepackaged Plan. If such debenture is not surrendered and the holder does not
provide an affidavit that such debenture was lost, and any other required
documents, all in form and substance satisfactory to the Reorganized Debtor,
within one year of the Effective Date, then no distribution will be made to such
holder whose Allowed Claim is based on such debenture. Such holder shall be
deemed to forfeit all rights under the Prepackaged Plan.
13.3 UNCLAIMED DISTRIBUTIONS. If any holder of Outstanding Debentures
entitled to Common Stock directly from the Exchange Agent under the Prepackaged
Plan cannot be located on the Effective Date, such securities shall be set aside
and maintained by the Exchange Agent. If such person is located within one year
of the Effective Date, such securities shall be distributed to such person. If
such person cannot be located within one year of the Effective Date, any such
securities shall become the property of and shall be released to the Reorganized
Debtor; PROVIDED, HOWEVER, that nothing contained in this Prepackaged Plan shall
require the Reorganized Debtor to attempt to locate such person.
13.4 RETIREE BENEFITS. On and after the Effective Date, pursuant to
section 1129(a)(13) of the Bankruptcy Code, the Reorganized Debtor shall
continue to be obligated to pay all retiree benefits, as that term is defined in
section 1114 of the Bankruptcy Code, and shall continue to pay such retiree
benefits as they become due at the level established at any time prior to
confirmation of the Prepackaged Plan pursuant to subsection (e)(1)(B) or (g) of
section 1114, for the duration of the period the Debtor has obligated itself to
provide such benefits.
13.5 MODIFICATION OF PREPACKAGED PLAN. The Debtor reserves the right, in
accordance with the Bankruptcy Code, to amend or modify the Prepackaged Plan
prior to the entry of the Confirmation Order. After the entry of the
Confirmation Order, the Reorganized Debtor may, upon order of the Court, amend
or modify the Prepackaged Plan in accordance with section 1127(b) of the
Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency
in the Prepackaged Plan in such manner as may be necessary to carry out the
purpose and intent of the Prepackaged Plan.
13.6 WITHDRAWAL OF PREPACKAGED PLAN. The Debtor reserves the right, at any
time prior to the entry of the Conformation Order, to revoke and withdraw the
Prepackaged Plan. If the Debtor revokes or withdraws the Prepackaged Plan under
this section, or if entry of the Confirmation Order does not occur, then the
Prepackaged Plan shall be deemed null and void. In that event, nothing contained
in the Prepackaged Plan shall be deemed to constitute a waiver or release of any
Claims by or against or any Interests in the Debtor or to prejudice in any
manner the rights of the Debtor in any further proceedings involving the Debtor.
13.7 TAX PROVISIONS. Pursuant to section 1146(c) of the Bankruptcy Code,
the issuance, transfer or other exchange of a security, or the making or
delivery of an instrument of transfer under the Prepackaged Plan, shall not be
taxed under any state or local law imposing a stamp tax or similar tax.
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13.8 PAYMENT DATES. Whenever any payment to be made under the Prepackaged
Plan is due on a day other than a Business Day, such payment will instead by
made, without interest, on the next Business Day.
13.9 HEADINGS. The headings used in this Prepackaged Plan are inserted for
convenience only and neither constitute a portion of the Prepackaged Plan nor in
any manner affect the provisions of the Prepackaged Plan.
13.10 SUCCESSORS AND ASSIGNS. The rights, benefits and obligations of any
person or entity named or referred to in the Prepackaged Plan shall be binding
upon, and shall inure to the benefit of, the heir, executor, administrator,
successor or assign of such person.
13.11 PAYMENT OF STATUTORY FEES. All fees payable pursuant to section 1930
of Title 28 of the United States Code, as determined by the Bankruptcy Court at
the hearing pursuant to section 1128 of the Bankruptcy Code, shall be paid on or
before the Effective Date.
13.12 GOVERNING LAW. Except to the extent that the Bankruptcy Code, the
Bankruptcy Rules or other federal law is applicable, the rights, duties and
obligations arising under the Prepackaged Plan shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
Dated: May 1, 1997
Newport Beach, California
KOLL REAL ESTATE GROUP, INC.
By: /s/ Raymond J. Pacini
-------------------------------------
Name: Raymond J. Pacini
Title: Executive Vice President and
Chief Financial Officer
William H. Sudell, Jr., Esq.
Robert J. Dehney, Esq.
MORRIS, NICHOLS, ARSHT & TUNNELL
By: /s/ William H. Sudell, Jr., Esq.
/s/ Robert J. Dehney, Esq.
-------------------------------------
Attorneys for Debtor and
Debtor-in-Possession
Brian S. Hucker, P.C., Esq.
Gregory W. Preston, Esq.
McDERMOTT, WILL & EMERY
By: /s/ Brian S. Hucker, P.C., Esq.
/s/ Gregory W. Preston, Esq.
-------------------------------------
Attorneys for Debtor and
Debtor-in-Possession
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EXHIBIT 1
PROPOSED
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KOLL REAL ESTATE GROUP, INC.
PURSUANT TO SECTION 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
KOLL REAL ESTATE GROUP, INC. (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of Delaware (the
"General Corporation Law"), hereby certifies as follows:
1. The name of the Corporation is Koll Real Estate Group, Inc. The
Corporation was originally incorporated under the name "Henley Newco Inc." The
name of the Corporation was changed from "Henley Newco Inc." to "The Henley
Group, Inc." pursuant to a Certificate of Amendment to the Certificate of
Incorporation of the Corporation filed with the Secretary of State of the State
of Delaware (the "Secretary of State") on December 29, 1988, and the name of the
Corporation was further changed from "The Henley Group, Inc." to "Henley
Properties Inc." pursuant to a Certificate of Ownership and Merger of the
Corporation filed with the Secretary of State on December 29, 1989.
2. The name of the Corporation was further changed from "Henley Properties
Inc." to "The Bolsa Chica Company," and the capitalization increased to
900,000,000 shares, of which 750,000,000 shares are Common Stock, par value
$0.05 per share and 150,000,000 shares are Preferred Stock, par value $0.01 per
share, all pursuant to a Certificate of Amendment to Restated Certificate of
Incorporation of the Corporation filed with the Secretary of State on July 16,
1992.
3. The name of the Corporation was further changed from "The Bolsa Chica
Company" to "Koll Real Estate Group, Inc." pursuant to a Certificate of
Ownership and Merger merging Koll Real Estate Group, Inc. into the Bolsa Chica
Company filed with the Secretary of State on September 13, 1993.
4. The address of the registered office of the Corporation was changed from
"229 South Street, in the City of Dover, County of Kent" to "32 Loockerman
Square, Suite L-100, City of Dover, County of Kent" pursuant to a Certificate of
Change of Address of Registered Office and of Registered Agent filed with the
Secretary of State on October 27, 1989.
5. A Certificate of Designations, Preferences and Relative, Participating,
Optional and Other Special Rights of Series A Convertible Redeemable Preferred
Stock and Qualifications, Limitations and Restrictions Thereof was filed with
the Secretary of State on July 16, 1992, the terms of which are included in this
Restated Certificate of Incorporation.
6. The date of filing of the original Certificate of Incorporation of the
Corporation with the Secretary of State was September 20, 1988.
7. This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with Section 245 of the General Corporation Law by the Board of
Directors of the Corporation.
8. The text of the Restated Certificate of Incorporation of the Corporation
as heretofore amended and/or supplemented, is hereby amended and restated to
read in its entirety as herein set forth:
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FIRST: The name of the Corporation is Koll Real Estate Group, Inc. (the
"Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of
Newcastle. The name of its registered agent at that address is CSC Corporation,
Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The Corporation shall have the authority to issue one class of
stock. The total number of shares of stock which the Corporation shall have the
authority to issue is 18 million shares of Common Stock, par value $0.05 per
share (the "Common Stock"). The Corporation shall not issue any non-voting
equity securities.
FIFTH: Effective upon the filing of this amendment to the Restated
Certificate of Incorporation, the Class A Common Stock, Class B Common Stock and
Series A Convertible Preferred Stock shall be reclassified and combined to
create one class and series of stock designated "Common Stock." Effective
immediately upon the filing of this amendment to the designated "Common Stock."
Effective immediately upon the filing of this amendment to the Restated
Certificate of Incorporation, each outstanding share of Class A Common Stock
shall be automatically reclassified to be one (1) share of Common Stock and each
outstanding share of Series A Convertible Preferred Stock shall be automatically
reclassified to be one and three quarter (1.75) shares of Common Stock.
Effective on the date of the filing of this amendment to the restated
Certificate of Incorporation, and immediately following the effectiveness of the
combination of the Class A Common Stock, Class B Common Stock and Series A
Preferred Stock, the resulting outstanding shares of Common Stock shall be
reverse split so that each 100 shares of outstanding Common Stock shall be
automatically reclassified into one share of Common Stock. The Company shall not
issue, and no stockholder of the Company shall be deemed to hold, fractional
shares of Common Stock as a result of the above described capital stock
combination and reverse stock split. Instead, the Company's exchange agent will
aggregate all such fractional shares of Common Stock that would otherwise result
from the above described capital stock combination and reverse stock split and
sell such aggregated shares of Common Stock, rounded to the nearest whole share,
as whole shares, in an orderly manner. Upon completion of such sales,
stockholders who would otherwise have held such fractional shares of Common
Stock, will receive in lieu thereof, the cash proceeds from such sales (without
interest) in amounts proportionate to the fractional shares of Common Stock
which such stockholders would otherwise have held. The designations and the
powers, preferences and rights, and qualifications, limitations or restrictions
thereof, of each share of Common Stock shall be governed by the follow:
(i) Identical Rights. All shares of Common Stock shall be identical and
shall entitle the holders thereof to the same rights and privileges.
(ii) Voting Rights. On all matters submitted to the Corporation's
stockholders, the holders of Common Stock shall be entitled to one vote per
share.
(iii) Dividend Rights. When and as dividends or other distributions are
declared, whether in cash, in property or in securities of the Corporation,
the holders of shares of Common Stock shall be entitled to share equally,
share for share, in such dividends or distributions.
(iv) Stock Splits. If the Corporation shall in any manner subdivide,
split or combine the outstanding shares of Common Stock, each share of
outstanding Common Stock shall be proportionately subdivided, split or
combined.
(v) No Charge. The issuance of certificates representing shares of
Common Stock in exchange for outstanding certificates of Class A Common
Stock or Series A Preferred Stock shall be made without charge to the
holders of such certificates, PROVIDED that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer
involving the issuance and delivery of
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any certificate in a name other than that of the holder of record of such
shares of Class A Common Stock or Series A Preferred Stock exchanged.
SIXTH: Intentionally Omitted.
SEVENTH: The duration of the Corporation is to be perpetual.
EIGHTH: (a) The number of directors of the Corporation shall be determined
from time to time in the manner described in the Bylaws. Each director shall
serve for a term ending on the next annual meeting following the meeting at
which such director was elected, or on such later date as such director's
successor shall have been elected and qualified.
(b) Newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
if less than a quorum of the Board of Directors, or by a sole remaining
director. Any director elected in accordance with the preceding sentence shall
hold office until the next annual meeting of stockholders and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
(c) Any director may be removed from office, with or without cause, by the
affirmative vote of the holders of a majority of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), voting together as
a single class."
(d) Intentionally Omitted
NINTH: Special meetings of stockholders may be called either (i) by the
Board of Directors or by the Chief Executive Officer pursuant to a resolution
approved by a majority of the then authorized number of directors of the
Corporation (as determined in accordance with the By-Laws) or (ii) by the
holders of capital stock of the Company representing at least ten percent (10%)
of the outstanding shares of capital stock of the Company entitled to vote in
the election of directors.
TENTH: Intentionally Omitted.
ELEVENTH: Unless and except to the extent that the By-Laws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
TWELFTH: No contract or other transaction of the Corporation shall be void,
voidable, fraudulent or otherwise invalidated, impaired or affected, in any
respect, by reason of the fact that any one or more of the officers, directors
or stockholders of the Corporation shall individually be party or parties
thereto or otherwise interested therein, or shall be officers, directors or
stockholders of any other corporation or corporations which shall be party or
parties thereto or otherwise interested therein; PROVIDED that such contract or
otherwise transactions be duly authorized or ratified by the Board of Directors,
with the assenting vote of a majority of the disinterested directors then
present, or, if only one such is present, with his assenting vote.
THIRTEENTH: The Board of Directors may from time to time make, amend,
supplement or repeal any By-Laws; PROVIDED, however, that the stockholders may
change or repeal any By-Law adopted by the Board of Directors; and PROVIDED,
FURTHER, that no amendment or supplement to the By-Laws adopted by the Board of
Directors shall vary or conflict with any amendment or supplement adopted by the
stockholders.
FOURTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter
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prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
FIFTEENTH: (a) A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for beach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
(b)(1) RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a part to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or the
person of whom he or she is the legal representative, is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action or inaction in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights then said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
PROVIDED, HOWEVER, that except as provided in this paragraph (b), the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this paragraph (b)
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; PROVIDED, HOWEVER, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director of officer of the Corporation (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action if
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
(2) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under subparagraph (b)(1)
is not paid in full by the Corporation within 30 days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal
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counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(3) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this paragraph (b) shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Amended and Restated Certificate of Incorporation, By-Laws,
agreement, vote of stockholders or disinterested directors or otherwise.
(4) INSURANCE. The Corporation may maintain insurance, as its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprises
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
SIXTEENTH: The Corporation expressly elects not to be governed by Section
203 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned, being a duly authorized Executive Vice
President and Chief Financial Officer of the Corporation, for the purpose of
amending and restating the Restated Certificate of Incorporation of the
Corporation pursuant to Section 245 of the General Corporation Law, does make
and file this Certificate, hereby declaring and certifying that the facts herein
stated are true, and accordingly has hereunto set his hand, this day of
, 1997.
--------------------------------------
Raymond J. Pacini
Executive Vice President and
Chief Financial Officer
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EXHIBIT 2
PROPOSED
AMENDED AND RESTATED BY-LAWS
OF
THE KOLL REAL ESTATE GROUP, INC.
ARTICLE I
OFFICES
Section 1. DELAWARE OFFICE. The office of The Koll Real Estate Group, Inc.
(the "Corporation") within the State of Delaware shall be in the City of
Wilmington, County of Newcastle.
Section 2. OTHER OFFICES. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as otherwise
may be required by law, in such other place or places, either within or without
the State of Delaware, as the Board of Directors of the Corporation (the
"Board") may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of holders of shares of capital
stock of the Corporation shall be held at the office of the Corporation in the
State of Delaware or at such other place, within or without the State of
Delaware, as may from time to time be fixed by the Board or specified or fixed
in the respective notices or waivers of notice thereof.
Section 2. ANNUAL MEETINGS. An annual meeting of stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting (an "Annual Meeting") shall be
held at 9:00 a.m. on the first Wednesday of May of each year or on such other
date and at such other time as may be fixed by the Board. If the Annual Meeting
shall not be held on the day designated, the Board shall call a special meeting
of stockholders as soon as practicable for the election of directors.
Section 3. SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise provided by law, may be called at any time by the Board pursuant to a
resolution adopted by a majority of the then authorized number of directors (as
determined in accordance with Section 2 of Article III of these By-Laws), by the
Chief Executive Officer or by holders of capital stock of the Company
representing at least ten percent (10%) of the outstanding shares of capital
stock of the Company entitled to vote in the election of directors. Any such
call must specify the matter or matters to be acted upon at such meeting and
only such matter or matters shall be acted upon thereat.
Section 4. NOTICE OF MEETINGS. Except as otherwise may be required by law,
notice of each meeting of stockholders, whether an Annual Meeting or a special
meeting, shall be in writing, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is an Annual
Meeting, shall indicate that the notice is being issued by or at the direction
of the person or persons calling the meeting, and a copy thereof shall be
delivered or sent by mail, not less than 10 or more than 60 days before the date
of said meeting, to each stockholder entitled to vote at such meeting. If
mailed, such notice shall be directed to such stockholder at his address as it
appears on the stock records of the Corporation, unless he shall have filed with
the Secretary a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. Notice
of an adjourned meeting
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need not be given if the time and place to which the meeting is to be adjourned
was announced at the meeting at which the adjournment was taken, unless (i) the
adjournment is for more than 30 days or (ii) the Board shall fix a new record
date for such adjourned meeting after the adjournment.
Section 5. QUORUM. At each meeting of stockholders of the Corporation, the
holders of shares having a majority of the voting power of the capital stock of
the Corporation issued and outstanding and entitled to vote thereat shall be
present or represented by proxy to constitute a quorum for the transaction of
business, except as otherwise provided by law.
Section 6. ADJOURNMENTS. In the absence of a quorum at any meeting of
stockholders or any adjournment or adjournments thereof, holders of shares
having a majority of the voting power of the capital stock present or
represented by proxy at the meeting may adjourn the meeting from time to time
until a quorum shall be present or represented by proxy. At any such adjourned
meeting at which a quorum shall be present or represented by proxy, any business
may be transacted which might have been transacted at the meeting as originally
called if a quorum had been present or represented by proxy thereat.
Section 7. ORDER OF BUSINESS. (a) At any Annual Meeting, only such
business shall be conducted as shall have been brought before the Annual Meeting
(i) by or at the direction of the Board of Directors or
(ii) by any stockholder who complies with the procedures set forth in this
Section 7.
(b) For business properly to be brought before an Annual Meeting by a
stockholder, the stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 30 days nor more than 60 days prior to
the Annual Meeting; PROVIDED, HOWEVER, that in the event that less than 40 days'
notice or prior public disclosure of the date of the Annual Meeting is given or
made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the tenth day following the day on which
such notice of the date of the Annual Meeting was mailed or such public
disclosure was made. To be in proper written form, a stockholder's notice to the
Secretary shall set forth in writing as to each matter the stockholder proposes
to bring before the Annual Meeting: (i) a brief description of the business
desired to be brought before the Annual Meeting and the reasons for conducting
such business at the Annual Meeting; (ii) the name and address, as they appear
on the Corporation's books, of the stockholder proposing such business; (iii)
the class and number of shares of the Corporation which are beneficially owned
by the stockholder; and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in these By-Laws to the Contrary, no business
shall be conducted at an Annual Meeting except in accordance with the procedures
set forth in this Section 7. The chairman of an Annual Meeting shall, if the
facts warrant, determine and declare to the Annual Meeting that business was not
properly brought before the Annual Meeting in accordance with the provisions of
this Section 7 and, if he should so determine, he shall so declare to the Annual
Meeting and any such business not properly brought before the Annual Meeting
shall not be transacted.
Section 8. VOTING. Except as otherwise provided in the Amended and
Restated Certificate of Incorporation, as amended from time to time (the
"Certificate of Incorporation") or in a resolution of the Board of Directors
adopted pursuant to the Certificate of Incorporation establishing a series of
Preferred Stock of the Corporation ("Preferred Stock") or a class of Common
Stock of the Corporation having special, limited or no voting rights, at each
meeting of stockholders, every stockholder of the Corporation shall be entitled
to one vote for every share of capital stock standing in his name on the stock
records of the Corporation (i) at the time fixed pursuant to Section 6 of
Article VII of these By-Laws as the record date for the determination of
stockholders entitled to vote at such meeting, or (ii) if no such record date
shall have been fixed, then at the close of business on the day next preceding
the day on which notice thereof shall be given. At each meeting of stockholders,
all matters (except as otherwise provided in Section 3 of Article III of these
By-Laws and except in cases where a larger vote is required by law or by
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the Certificate of Incorporation of the Corporation or these By-Laws) shall be
decided by a majority of the votes cast at such meeting by the holders of shares
of capital stock present or represented by proxy and entitled to vote thereon, a
quorum being present.
Section 9. INSPECTORS. For each election of directors by the stockholders
and in any other case in which it shall be advisable, in the opinion of the
Board, that the voting upon any matter shall be conducted by inspectors of
election, the Board shall appoint two inspectors of election. If, for any such
election of directors or the voting upon any such other matter, any inspector
appointed by the Board shall be unwilling or unable to serve, or if the Board
shall fail to appoint inspectors, the chairman of the meeting shall appoint the
necessary inspector or inspectors. The inspectors so appointed, before entering
upon the discharge of their duties, shall be sworn faithfully to execute the
duties of inspectors with strict impartiality, and according to the best of
their ability, and the oath so taken shall be subscribed by them. Such
inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each of the shares represented
at the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting or any stockholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director shall
act as an inspector of election of directors. Inspectors need not be
stockholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. The business of the Corporation shall be managed under
the direction of the Board. The Board may exercise all such authority and powers
of the Corporation and do all such lawful acts and things as are not by law or
otherwise directed or required to be exercised or done by the stockholders.
Section 2. NUMBER, ELECTION AND TERMS. The authorized number of directors
may be determined from time to time by a vote of a majority of the then
authorized number of directors or by the affirmative vote of the holders of at
least a majority of the voting power of the then outstanding shares of capital
stock of the corporation entitled to vote generally in the election of
directors, voting together as a single class; PROVIDED, HOWEVER, that such
number initially shall be ten (10). Except as otherwise provided in the
Certificate of Incorporation, newly created directorships resulting from any
increase in the number of directors and any vacancies on the Board resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office, even if less than a quorum of the Board, or by a sole remaining
director. Any director elected in accordance with the preceding sentence shall
hold office until the next Annual Meeting and until such director's successor
shall have been duly elected and qualified. No decrease in the number of
directors constituting the Board shall shorten the term of any incumbent
director.
Section 3. NOMINATIONS OF DIRECTORS; ELECTION. Nominations for the
election of directors may be made by the Board or a committee appointed by the
Board, or by any stockholder entitled to vote generally in the election of
directors who complies with the procedures set forth in this Section 3.
Directors shall be at least 21 years of age. Directors need not be stockholders.
At each meeting of stockholders for the election of directors at which a quorum
is present, the persons receiving a plurality of the votes cast shall be elected
directors. All nominations by stockholders shall be made pursuant to timely
notice in proper written form to the Secretary of the Corporation. To be timely,
a stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 30 days nor more
than 60 days prior to the meeting; PROVIDED, HOWEVER, that in the event that
less than 40 days'
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notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. To be in proper written form, such stockholder's notice shall set forth in
writing (i) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended, including, without
limitation, such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected; and (ii) as to the
stockholder giving the notice, (x) the name and address, as they appear on the
Corporation's books, of such stockholder and (y) the class and number of shares
of the Corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
Corporation the information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. In the event that a stockholder
seeks to nominate one or more directors, the Secretary shall appoint two
inspectors, who shall not be affiliated with the Corporation, to determine
whether a stockholder has complied with this Section 3. If the inspectors shall
determine that a stockholder has not complied with this Section 3, the
inspectors shall direct the chairman of the meeting to declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
the By-Laws of the Corporation, and the chairman shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 4. PLACE OF MEETINGS. Meetings of the Board shall be held at the
Corporation's office in the State of Delaware or at such other place, within or
without such State, as the Board may from time to time determine or as shall be
specified or fixed in the notice or waiver of notice of any such meeting.
Section 5. REGULAR MEETINGS. Regular meetings of the Board shall be held
in accordance with a yearly meeting schedule as determined by the Board; or such
meetings may be held on such other days and at such other times as the Board may
from time to time determine. Notice of regular meetings of the Board need not be
given except as otherwise required by these By-Laws.
Section 6. SPECIAL MEETINGS. Special meetings of the Board may be called
by the Chief Executive Officer and shall be called by the Secretary at the
request of any two of the other directors.
Section 7. NOTICE OF MEETINGS. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required), stating the
time, place and purposes thereof, shall be mailed to each director, addressed to
him at his residence or usual place of business, or shall be sent to him by
telex, cable or telegram so addressed, or shall be given personally or by
telephone, on 24 hours' notice.
Section 8. QUORUM AND MANNER OF ACTING. The presence of at least a
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business at any meeting of the
Board. If a quorum shall not be present at any meeting of the Board, a majority
of the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present. Except where a different vote is required or permitted by law or these
By-Laws or otherwise, the act of a majority of the directors present at any
meeting at which a quorum shall be present shall be the act of the Board. Any
action required or permitted to be taken by the Board may be taken without a
meeting if all the directors consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
directors shall be filed with the minutes of the proceedings of the Board. Any
one or more directors may participate in any meeting of the Board by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall be deemed to constitute presence in person at a meeting of
the Board.
Section 9. RESIGNATION. Any director may resign at any time by giving
written notice to the Corporation; PROVIDED, HOWEVER, that written notice to the
Board, the Chairman of the Board, the Chief
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Executive Officer or the Secretary shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect upon receipt of such notice or
at any later time specified therein and, unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it effective.
Section 10. REMOVAL OF DIRECTORS. Any director may be removed from office,
with or without cause, by the affirmative vote of a majority of the voting power
of all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
Section 11. COMPENSATION OF DIRECTORS. The Board may provide for the
payment to any of the directors, other than officers or employees of the
Corporation, of a specified amount for services as director or member of a
committee of the Board, or of a specified amount for attendance at each regular
or special Board meeting or committee meeting, or of both, and all directors
shall be reimbursed for expenses of attendance at any such meeting; PROVIDED,
HOWEVER, that nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. APPOINTMENT AND POWERS OF EXECUTIVE COMMITTEE. The Board may,
by resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate an Executive Committee of the Board which shall
consist of such number of members as the Board shall determine. Except as
provided by Delaware law, during the interval between the meetings of the Board,
the Executive Committee shall possess and may exercise all of the powers of the
Board in the management and direction of all the business and affairs of the
Corporation (except the matters hereinafter assigned to any other Committee of
the Board), in such manner as the Executive Committee shall deem in the best
interests of the Corporation in all cases in which specific directions shall not
have been given by the Board. A majority of the members of the Executive
Committee shall constitute a quorum for the transaction of business by the
committee and the act of a majority of the members of the committee present at a
meeting at which a quorum shall be present shall be the act of the committee.
Either the Chairman of the board, the Chief Executive Officer or the Chairman of
the Executive Committee may call the meetings of the Executive Committee.
Section 2. APPOINTMENT AND POWERS OF AUDIT COMMITTEE. The Board may, by
resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate an Audit Committee of the Board, which shall
consist of such number of members as the Board shall determine. The Audit
Committee shall (i) make recommendations to the Board as to the independent
accountants to be appointed by the Board; (ii) review with the independent
accountants the scope of their examination; (iii) receive the reports of the
independent accountants and meet with representatives of such accountants for
the purpose of reviewing and considering questions relating to their examination
and such reports; (iv) review, either directly or through the independent
accountants, the internal accounting and auditing procedures of the Corporation;
and (v) perform such other functions as may be assigned to it from time to time
by the Board. The Audit Committee may determine its manner of acting and fix the
time and place of its meetings, unless the Board shall otherwise provide. A
majority of the members of the Audit Committee shall constitute a quorum for the
transaction of business by the committee and the act of a majority of the
members of the committee present at a meeting at which a quorum shall be present
shall be the act of the committee.
Section 3. COMPENSATION COMMITTEE; OTHER COMMITTEES. The Board may, by
resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate members of the Board to constitute a Compensation
Committee and such other committees of the Board as the Board may determine.
Such committees shall in each case consist of such number of directors as the
Board may
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determine, and shall have and may exercise, to the extent permitted by law, such
powers as the Board may delegate to them, in the respective resolutions
appointing them. Each such committee may determine its manner of acting and fix
the time and place of its meetings, unless the Board shall otherwise provide. A
majority of the members of any such committee shall constitute a quorum for the
transaction of business by the committee and the act of a majority of the
members of such committee present at a meeting at which a quorum shall be
present shall be the act of the committee.
Section 4. ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Unless the Board shall otherwise provide, any action required or
permitted to be taken by any committee may be taken without a meeting if all
members of the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
members of the committee shall be filed with the minutes of the proceedings of
the committee. Unless the Board shall otherwise provide, any one or more members
of any such committee may participate in any meeting of the committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation by
such means shall constitute presence in person at a meeting of the committee.
Section 5. CHANGES IN COMMITTEES; RESIGNATIONS; REMOVALS. The Board shall
have power, by the affirmative vote of a majority of the authorized number of
directors, at any time to change the members of, to fill vacancies in, and to
discharge any committee of the Board. Any member of any such committee may
resign at any time by giving notice to the Corporation; PROVIDED, HOWEVER, that
notice to the Board, the Chairman of the Board, the Chief Executive Officer, the
chairman of such committee or the Secretary shall be deemed to constitute notice
to the Corporation. Such resignation shall take effect upon receipt of such
notice or at any later time specified therein; and, unless otherwise specified
therein, acceptance of such resignation shall not be necessary to make it
effective. Any member of any such committee may be removed at any time, either
with or without cause, by the affirmative vote of a majority of the authorized
number of directors at any meeting of the Board called for that purpose.
ARTICLE V
OFFICERS
Section 1. NUMBER AND QUALIFICATION. The Corporation shall have such
officers as may be necessary or desirable for the business of the Corporation.
The elected officers of the Corporation shall be a Chairman of the Board, a
Chief Executive Officer, a Treasurer and Secretary, and such other persons
having such other titles and such other duties as the Board may prescribe. The
same person may hold more than one office. The Chairman of the Board and the
Chief Executive Officer shall be elected from among the directors. The Chief
Executive Officer may appoint one or more deputies, associates or assistant
officers, or such other agents as may be necessary or desirable for the business
of the Corporation. In case one or more deputies, associates or assistant
officers shall be appointed, the officer such appointee assists may delegate to
him the authority to perform such of the officer's duties as the officer may
determine.
Section 2. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Corporation; PROVIDED, HOWEVER, that notice to the Board,
the Chairman of the Board, the Chief Executive Officer or the Secretary shall be
deemed to constitute notice to the Corporation. Such resignation shall take
effect upon receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3. REMOVAL. Any officer or agent may be removed, either with or
without cause, at any time, by the Board at any meeting called for that purpose;
PROVIDED, HOWEVER, that the Chief Executive Officer may remove any agent
appointed by him.
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Section 4. VACANCIES. Any vacancy among the officers, whether caused by
death, resignation, removal or any other cause, shall be filled in the manner
prescribed for election or appointment to such office.
Section 5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if
present, preside at all meetings of the Board and, in the absence of the Chief
Executive Officer, at all meetings of the stockholders. The Chairman of the
Board shall perform the duties incident to the office of the Chairman of the
Board and all such other duties as are specified in these By-Laws or as shall be
assigned to the Chairman of the Board from time to time by the Board.
Section 6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall, if
present, preside at all meetings of the stockholders. The Chief Executive
Officer shall have, under the control of the Board, general supervision and
direction of the business and affairs of the Corporation. The Chief Executive
Officer shall at all times see that all resolutions or determinations of the
Board are carried into effect. The Chief Executive Officer may from time to time
appoint, remove or change members of and discharge one or more advisory
committees, each of which shall consist of such number of persons (who may, but
need not, be directors or officers of the Corporation), and have such advisory
duties, as the Chief Executive Officer shall determine. The Chief Executive
Officer shall perform the duties incident to the office of the Chief Executive
Officer and all such other duties as are specified in these By-Laws or as shall
be assigned to the Chief Executive Officer from time to time by the Board.
Section 7. TREASURER. The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation, shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation, shall deposit all moneys and other valuables to the credit of the
Corporation in such depositories as may be designated pursuant to these By-Laws,
shall receive, and give receipts for, moneys due and payable to the Corporation
from any source whatsoever, shall disburse the funds of the Corporation and
shall render to all regular meetings of the Board, or whenever the Board may
require, an account of all the Treasurer's transactions as Treasurer. The
Treasurer shall, in general, perform all the duties incident to the office of
Treasurer and all such other duties as may be assigned to the Treasurer from
time to time by the Chief Executive Officer or such other officer to whom the
Treasurer reports.
Section 8. SECRETARY. The Secretary shall, if present, act as secretary
of, and keep the minutes of, all meetings of the Board, the Executive Committee
and other committees of the Board and the stockholders in one or more books
provided for that purpose, shall see that all notices are duly given in
accordance with these By-Laws and as required by law, shall be custodian of the
seal of the Corporation and shall affix and attest the seal to all documents to
be executed on behalf of the Corporation under its seal. The Secretary shall, in
general, perform all the duties incident to the office of Secretary and all such
other duties as may be assigned to the Secretary from time to time by the Chief
Executive Officer or such other officer to whom the Secretary reports.
Section 9. BONDS OF OFFICERS. If required by the Board, any officer of the
Corporation shall give a bond for the faithful discharge of such Officer's
duties in such amount and with such surety or sureties as the Board may require.
Section 10. COMPENSATION. The salaries of the officers shall be fixed from
time to time by the Compensation Committee of the Board; PROVIDED, HOWEVER, that
the Chief Executive Officer may fix or delegate to others the authority to fix
the salaries of any agents appointed by the Chief Executive Officer.
Section 11. OFFICERS OF OPERATING COMPANIES OR DIVISIONS. The Chief
Executive Officer shall have the power to appoint, remove, and prescribe the
terms of office, responsibilities, duties and salaries of, the officers of the
operating companies or divisions, other than those who are officers of the
Corporation.
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ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. CONTRACTS. The Board may authorize any officer or officers,
agent or agents, in the name and on behalf of the Corporation, to enter into any
contract or to execute and deliver any instrument, which authorization may be
general, or confined to specific instances; and, unless so authorized by the
Board, no officer, agent or employee shall have any power or authority to bind
the Corporation by an contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or for any amount.
Section 2. CHECKS, ETC. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation, shall be signed in
the name and on behalf of the Corporation in such manner as shall from time to
time be authorized by the Board, which authorization may be general or confined
to specific instances.
Section 3. LOANS. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. All bonds, debentures, notes and other obligations evidences
of indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board shall authorize.
Section 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositors as may be selected by or in the
manner designated by the Board. The Board or its designees may make such special
rules and regulations with respect to such bank accounts, not inconsistent with
the provisions of the Certificate of Incorporation or these By-Laws, as they may
deem advisable.
ARTICLE VII
CAPITAL STOCK
Section 1. STOCK CERTIFICATES. Each stockholder shall be entitled to have,
in such form as shall be approved by the Board, a certificate or certificates
signed by the Chairman of the Board or the Chief Executive Officer, and by
either the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary (except that, when any such certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation or an employee of
the Corporation, the signatures of any such officers may be facsimiles, engraved
or printed), which may be sealed with the seal of the Corporation (which seal
may be a facsimile, engraved or printed), certifying the number of shares of
capital stock of the Corporation owned by such stockholder. In the event any
officer who has signed or whose facsimile signature has been placed upon any
such certificate shall have ceased to be such officer before such certificate is
issued, such certificate may be issued by the Corporation with the same effect
as if he were such officer at the date of its issue.
Section 2. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make or cause to be prepared or made, at least 10 days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares of capital stock registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the
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meeting for the duration thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 3. STOCK LEDGER. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 2 of this Article VII or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 4. TRANSFERS OF CAPITAL STOCK. Transfers of shares of capital
stock of the Corporation shall be made only on the stock ledger of the
Corporation by the holder of record thereof, by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation, or by the transfer agent of the Corporation, and only on
surrender of the certificate or certificates representing such shares, properly
endorsed or accompanied by a duly executed stock transfer power. The Board may
make such additional rules and regulations as it may deem advisable concerning
the issue and transfer of certificates representing shares of the capital stock
of the Corporation.
Section 5. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 6. FIXING OF RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividends or other distributions or allotments of any rights, or entitled to
exercise any rights in respect to any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
record date, which shall not be more than 60 days nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; PROVIDED,
HOWEVER, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 7. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest
in such shares on the part of any other person, whether or not the Corporation
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VIII
FISCAL YEAR
The Corporation's fiscal year shall coincide with the calendar year.
ARTICLE IX
SEAL
The Corporation's seal shall be circular in form and shall include the words
"THE KOLL REAL ESTATE GROUP, INC., Delaware, 1988, Seal."
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ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required by law, the Certificate of Incorporation or
these By-Laws to be given to any director, member of a committee or stockholder,
a waiver thereof in writing, signed by the person or persons entitled to such
notice, whether signed before or after the time stated in such written waiver,
shall be deemed equivalent to such notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when such person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the grounds that the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
ARTICLE XI
AMENDMENTS
These By-Laws or any of them may be amended or supplemented in any respect
at any time, either (i) at any meeting of stockholders, provided that any
amendment or supplement proposed to be acted upon at any such meeting shall have
been described or referred to in the notice of such meeting; or (ii) at any
meeting of the Board, provided that any amendment or supplement proposed to be
acted upon at any such meeting shall have been described or referred to in the
notice of such meeting or an announcement with respect thereto shall have been
made at the last previous Board meeting, and PROVIDED FURTHER that no amendment
or supplement adopted by the Board shall vary or conflict with any amendment or
supplement adopted by the stockholders.
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EXHIBIT 3
KOLL REAL ESTATE GROUP
AMENDED AND RESTATED
1993 STOCK OPTION/STOCK ISSUANCE PLAN
ARTICLE ONE
GENERAL
I. PURPOSE OF THE AMENDED AND RESTATED PLAN
A. This Amended and Restated 1993 Stock Option/Stock Issuance Plan ("Plan")
is intended to promote the interests of Koll Real Estate Group, a Delaware
corporation (the "Corporation"), by providing (i) key employees (including
officers) of the Corporation (or its parent or subsidiary corporations) who are
responsible for the management, growth and financial success of the Corporation
(or its parent or subsidiary corporations), and (ii) consultants and other
independent contractors who provide valuable services to the Corporation (or its
parent or subsidiary corporations) with the opportunity to acquire a proprietary
interest, or otherwise increase their proprietary interest, in the Corporation
as an incentive for them to remain in the service of the Corporation (or its
parent or subsidiary corporations).
B. The Plan amends and restates the Koll Real Estate Group 1993 Stock
Option/Stock Issuance Plan (the "1993 Plan") which became effective immediately
upon adoption by the Board on November 29, 1993.
C. The Corporation was formerly known as The Bolsa Chica Company, and this
Plan shall serve as an amendment and restatement of the 1993 Plan which is the
successor to the 1988 Stock Plan of The Bolsa Chica Company (the "Predecessor
Plan"). No further option grants or share issuances shall be made under the
Predecessor Plan from and after the effective date of the 1993 Plan. All
outstanding stock options under the Predecessor Plan on the effective date of
the 1993 Plan were incorporated into the 1993 Plan and were treated as
outstanding stock options under the 1993 Plan. As of , 1997, all such
options issued under the Predecessor Plan and under the 1993 Plan have been
cancelled by agreement between the holders thereof and the Company or have
expired or terminated in accordance with their terms.
II. DEFINITIONS
A. For purposes of the Plan, the following definitions shall be in effect:
BOARD: the Corporation's Board of Directors.
CHANGE IN CONTROL: a change in ownership or control of the Corporation
effected through either of the following transactions:
a. any person or related group of persons (other than the Corporation
or a person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of
securities possessing more than fifty percent (50%) of the total combined
voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders
which the Board does not recommend such stockholders to accept; or
b. a change in the composition of the Board over a period of thirty-six
(36) consecutive months or less such that a majority of the Board members
(rounded up to the next whole number) ceases, by reason of one or more
contested elections for Board membership, to be comprised of individuals who
either (A) have been Board members continuously since the beginning of such
period or (B) have been elected or nominated for election as Board members
during such period by at least a majority of
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the Board members described in clause (A) who were still in office at the
time such election or nomination was approved by the Board.
COMMON STOCK: shares of the Corporation's Common Stock, par value $.05 per
share, on a post 1997 capital stock combination and one for one hundred (1:100)
reverse stock split basis.
CODE: the Internal Revenue Code of 1986, as amended.
COMMITTEE: the committee of two (2) or more non-employee Board members
appointed by the Board to administer the Plan.
CORPORATE TRANSACTION: any of the following stockholder-approved
transactions to which the Corporation is a party:
a. a merger or consolidation in which the Corporation is not the
surviving entity, except for a transaction the principal purpose of which is
to change the state in which the Corporation is incorporated,
b. the sale, transfer or other disposition of all or substantially all
of the assets of the Corporation in complete liquidation or dissolution of
the Corporation, or
c. any reverse merger in which the Corporation is the surviving entity
but in which securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such merger.
EMPLOYEE: an individual who performs services while in the employ of the
Corporation or one or more parent or subsidiary corporations, subject to the
control and direction of the employer entity not only as to the work to be
performed but also as to the manner and method of performance.
EXERCISE DATE: the date on which the Corporation shall have received
written notice of the option exercise.
FAIR MARKET VALUE: the Fair Market Value per share of Common Stock
determined in accordance with the following provisions:
a. If the Common Stock is not at the time listed or admitted to trading
on any national securities exchange but is traded on the Nasdaq National
Market, the Fair Market Value shall be the closing selling price per share
of that security on the date in question, as such price is reported by the
National Association of Securities Dealers through the Nasdaq National
Market or any successor system. If there is no reported closing selling
price for the Common Stock on the date in question, then the closing selling
price per share of that security on the last preceding date for which such
quotation exists shall be determinative of Fair Market Value.
b. If the Common Stock is at the time listed or admitted to trading on
any national stock exchange, then the Fair Market Value shall be the closing
selling price per share of that security on the date in question on the
exchange serving as the primary market for the Common Stock, as such price
is officially quoted in the composite tape of transactions on such exchange.
If there is no reported sale of Common Stock on such exchange on the date in
question, then the Fair Market Value shall be the closing selling price per
share of that security on the exchange on the last preceding date for which
such quotation exists.
HOSTILE TAKE-OVER: a change in ownership of the Corporation effected
through the following transaction:
a. any person or related group of persons (other than the Corporation
or a person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of
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securities possessing more than fifty percent (50%) of the total combined
voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders
which the Board does not recommend such stockholders to accept, AND
B. MORE THAN FIFTY PERCENT (50%) OF THE SECURITIES SO ACQUIRED IN SUCH
TENDER OR EXCHANGE OFFER ARE ACCEPTED FROM HOLDERS OTHER THAN THE OFFICERS
AND DIRECTORS OF THE CORPORATION SUBJECT TO THE SHORT-SWING PROFIT
RESTRICTIONS OF SECTION 16 OF THE 1934 ACT.
INCENTIVE OPTION: a stock option which satisfies the requirements of Code
Section 422.
1934 ACT: the Securities and Exchange Act of 1934, as amended.
NON-STATUTORY OPTION: a stock option not intended to meet the requirements
of Code Section 422.
OPTIONEE: any person to whom an option is granted under the Discretionary
Option Grant Program in effect under the Plan.
PERMANENT DISABILITY OR PERMANENTLY DISABLED: the inability of the Optionee
or the Participant to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment expected to result in
death or to be of continuous duration of twelve (12) months or more.
PLAN ADMINISTRATOR: the Committee in its capacity as the administrator of
the Plan.
SERVICE: THE PERFORMANCE OF SERVICES ON A PERIODIC BASIS TO THE CORPORATION
(OR ANY PARENT OR SUBSIDIARY CORPORATION) IN THE CAPACITY OF AN EMPLOYEE, A
NON-EMPLOYEE MEMBER OF THE BOARD OF DIRECTORS OR AN INDEPENDENT CONSULTANT OR
ADVISOR, EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROVIDED IN THE APPLICABLE
STOCK OPTION OR STOCK ISSUANCE AGREEMENT.
TAKE-OVER PRICE: the GREATER of (a) the Fair Market Value per share of the
Common Stock subject to the particular option surrendered to the Corporation in
connection with a Hostile Take-Over on the date such option surrender is
effected or (b) the highest reported price per share of that security paid by
the tender offeror in effecting such Hostile Take-Over. However, if the
surrendered option is an Incentive Option, the Take-Over Price shall not exceed
the clause (a) price per share.
B. The following provisions shall be applicable in determining the parent
and subsidiary corporations of the Corporation:
- Any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation shall be considered to be a
PARENT of the Corporation, provided each such corporation in the unbroken
chain (other than the Corporation) owns, at the time of the determination,
stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
- Each corporation (other than the Corporation) in an unbroken chain of
corporations which begins with the Corporation shall be considered to be a
SUBSIDIARY of the Corporation, provided each such corporation in the
unbroken chain (other than the last corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
III. STRUCTURE OF THE PLAN
A. STOCK PROGRAMS. The Plan shall be divided into two (2) separate
components: the Discretionary Option Grant Program specified in Article Two and
the Director Fee Program specified in Article Three. Under the Discretionary
Option Grant Program, eligible individuals may, at the discretion of the Plan
Administrator, be granted options to purchase shares of Common Stock in
accordance with the provisions of Article Two. Under the Director Fee Program,
each non-employee Board member may, in accordance
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with the provisions of Article Three, elect to apply all or any portion of his
or her annual retainer fee to the acquisition of unvested shares of Common
Stock.
B. GENERAL PROVISIONS. Unless the context clearly indicates otherwise, the
provisions of Articles One and Four shall apply to the Discretionary Option
Grant Program and the Director Fee Program and shall accordingly govern the
interests of all individuals under the Plan.
IV. ADMINISTRATION OF THE PLAN
A. The Discretionary Option Grant Program shall be administered by the
Committee in its capacity as Plan Administrator. No non-employee Board member
shall be eligible to serve on the Committee if such individual has, within the
twelve (12)-month period immediately preceding the date of his or her
appointment to the Committee, received an option grant or direct stock issuance
under this Plan or any other stock plan of the Corporation (or any parent or
subsidiary corporation), other than pursuant to the Director Fee Program.
B. Members of the Committee shall serve for such period of time as the
Board may determine and shall be subject to removal by the Board at any time.
C. The Committee as Plan Administrator shall have full power and authority
(subject to the express provisions of the Plan) to establish rules and
regulations for the proper administration of the Discretionary Option Grant
Program and to make such determinations under, and issue such interpretations
of, the provisions of such program and any outstanding option grants thereunder
as it may deem necessary or advisable. Decisions of the Plan Administrator shall
be final and binding on all parties who have an interest in the Discretionary
Option Grant Program or any outstanding option or unvested share issuance
thereunder.
D. Administration of the Director Fee Program shall be self-executing in
accordance with the express terms and conditions of Article Three and the
Committee as Plan Administrator shall exercise no discretionary functions with
respect to option grants or share issuances made pursuant to those programs.
V. OPTION GRANTS AND STOCK ISSUANCES
A. The persons eligible to participate in the Discretionary Option Grant
Program under Article Two shall be limited to the following:
- officers and other key employees of the Corporation (or its parent or
subsidiary corporations) who render services which contribute to the
management, growth and financial success of the Corporation (or its parent
or subsidiary corporations);
- members of the Board or the members of the board of directors of any
parent or subsidiary corporation; and
- those consultants or other independent contractors who provide valuable
services to the Corporation (or its parent or subsidiary corporations).
B. Non-employee Board members who serve as Plan Administrator shall NOT,
during their period of service as such, be eligible to participate in the
Discretionary Option Grant Program or in any other stock option, stock purchase,
stock bonus or other stock plan of the Corporation (or its parent or subsidiary
corporations), other than the Director Fee Program, to the extent they are
eligible for participation in those latter programs in accordance with the
provisions of Articles Three.
C. The Plan Administrator shall have full authority to determine which
eligible individuals are to receive option grants under the Discretionary Option
Grant Program, the number of shares to be covered by each such grant, the status
of the granted option as either an Incentive Option or a Non-Statutory
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Option, the time or times at which each granted option is to become exercisable
and the maximum term for which the option is to remain outstanding.
VI. STOCK SUBJECT TO THE PLAN
A. Shares of Common Stock shall be available for issuance under the Plan
and shall be drawn from either the Corporation's authorized but unissued shares
of Common Stock or from reacquired shares of Common Stock, including shares
repurchased by the Corporation on the open market. Seven Hundred Fifty-One
Thousand Four Hundred and Forty-Nine (751,449) shares of Common Stock may be
issued over the term of the Plan, subject to adjustment from time to time in
accordance with the provisions of this Section VI. Such authorized share reserve
is comprised of the number of shares of Common Stock which remained available
for issuance under the 1993 Plan prior to this amendment, as reduced by this
amendment.
B. In no event shall there be issued over the remaining term of the Plan,
from the effective date of this amendment to the 1993 Plan until the termination
of the Plan pursuant to Article Four, Section IV, more than Seven Hundred
Fifty-One Thousand Four Hundred and Forty-Nine (751,449) shares in the aggregate
of Common Stock. The foregoing share limitations shall be subject to periodic
adjustment in accordance with the provisions of Section F of this Article VI.
C. Should one or more outstanding options under this Plan expire or
terminate for any reason prior to exercise in full then the shares subject to
the portion of each option not so exercised shall be available for subsequent
issuance under the Plan. Shares subject to any option or portion thereof
surrendered in accordance with Section IV of Article Two and all share issuances
under the Plan, whether or not the shares are subsequently repurchased by the
Corporation pursuant to its repurchase rights under the Plan, shall reduce on a
share-for-share basis the number of shares of Common Stock available for
subsequent issuance under the Plan. In addition, should the exercise price of an
outstanding option under the Plan be paid with shares of Common Stock or should
shares of Common Stock otherwise issuable under the Plan be withheld by the
Corporation in satisfaction of the withholding taxes incurred in connection with
the exercise of an outstanding option under the Plan or the vesting of a direct
share issuance made under the Plan, then the number of shares of Common Stock
(as the case may be) available for issuance under the Plan shall be reduced by
the gross number of shares for which the option is exercised or which vest under
the share issuance, and not by the net number of shares of Common Stock actually
issued to the holder of such option or share issuance.
D. Should any change be made to the Common Stock issuable under the Plan by
reason of any stock split, stock dividend, recapitalization, combination of
shares, exchange of shares or other change affecting the outstanding Common
Stock as a class without the Corporation's receipt of consideration, then
appropriate adjustments shall be made to (i) the maximum number and/or class of
securities issuable under the Plan, (ii) the maximum number and/or class of
securities in the aggregate for which any one individual participating in the
Plan may be granted stock options, separately exercisable stock appreciation
rights and direct share issuances over the term of the Plan, (iii) the number
and/or class of securities for which share issuances are subsequently to be made
to non-employee Board members under the Director Fee Program, and (iv) the
number and/or class of securities and price per share in effect under each
option outstanding under the Discretionary Option Grant. Such adjustments to the
outstanding options are to be effected in a manner which shall preclude the
enlargement or dilution of rights and benefits under such options. The
adjustments determined by the Plan Administrator shall be final, binding and
conclusive.
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ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
I. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Discretionary Option Grant Program shall be
authorized by action of the Plan Administrator and may, at the Plan
Administrator's discretion, be either Incentive Options or Non-Statutory
Options. Individuals who are not Employees of the Corporation or its parent or
subsidiary corporations may only be granted Non-Statutory Options. Each granted
option shall be evidenced by one or more instruments in the form approved by the
Plan Administrator; PROVIDED, however, that each such instrument shall comply
with the terms and conditions specified below. Each instrument evidencing an
Incentive Option shall, in addition, be subject to the applicable provisions of
Section II of this Article Two.
A. EXERCISE PRICE.
1. The exercise price per share of Common Stock subject to any option
granted under this Article Two shall be fixed by the Plan Administrator at the
time of the grant, but in no event shall such exercise price be less than one
hundred percent (100%) of the Fair Market Value per share of that security on
the grant date.
2. The exercise price shall become immediately due upon exercise of the
option and, subject to the provisions of Section I of Article Four and the
instrument evidencing the grant, shall be payable in one of the following
alternative forms specified below:
a. full payment in cash or check made payable to the Corporation's
order;
b. full payment in shares of Common Stock held for the requisite period
necessary to avoid a charge to the Corporation's earnings for financial
reporting purposes and valued at Fair Market Value on the Exercise Date;
c. full payment in a combination of shares of Common Stock held for the
requisite period necessary to avoid a charge to the Corporation's earnings
for financial reporting purposes and valued at Fair Market Value on the
Exercise Date and cash or check drawn to the Corporation's order; or
d. to the extent the option is exercised for vested shares, full
payment through a broker-dealer sale and remittance procedure pursuant to
which the Optionee shall concurrently provide irrevocable written
instructions to (i) a Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the Corporation, out of
the sale proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased shares plus all
applicable Federal, state and local income and employment taxes required to
be withheld by the Corporation in connection with such purchase and (ii) the
Corporation to deliver the certificates for the purchased shares directly to
such brokerage firm in order to complete the sale transaction.
Except to the extent the sale and remittance procedure is utilized in
connection with the exercise of the option for vested shares, payment of the
exercise price for the purchased shares must accompany the exercise notice.
B. TERM AND EXERCISE OF OPTIONS. Each option granted under this
Discretionary Option Grant Program shall be exercisable at such time or times
and during such period as is determined by the Plan Administrator and set forth
in the instrument evidencing the grant. No such option, however, shall have a
maximum term in excess of ten (10) years from the grant date. During the
lifetime of the Optionee, the option, together with any stock appreciation
rights pertaining to such option, shall be exercisable only by the Optionee and
shall not be assignable or transferable by the Optionee except for a transfer of
the option effected by will or by the laws of descent and distribution following
the Optionee's death.
C. TERMINATION OF SERVICE.
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1. The following provisions shall govern the exercise period applicable to
any outstanding options under this Article Two held by the Optionee at the time
of cessation of Service or death.
- Should an Optionee cease Service for any reason (including death or
Permanent Disability) while holding one or more outstanding options under
this Article Two, then none of those options shall (except to the extent
otherwise provided pursuant to subparagraph 3 below) remain exercisable
for more than a thirty-six (36)-month period (or such shorter period
determined by the Plan Administrator and set forth in the instrument
evidencing the grant) measured from the date of such cessation of Service.
- Any option held by the Optionee under this Article Two and exercisable in
whole or in part on the date of his or her death may be subsequently
exercised by the personal representative of the Optionee's estate or by
the person or persons to whom the option is transferred pursuant to the
Optionee's will or in accordance with the laws of descent and
distribution. The right to exercise such option, however, shall lapse upon
the EARLIER of (i) the third anniversary of the date of the Optionee's
death (or such shorter period determined by the Plan Administrator and set
forth in the instrument evidencing the grant) or (ii) the specified
expiration date of the option term. Accordingly, upon the occurrence of
the earlier event, the option shall terminate and cease to be outstanding.
- During the applicable post-Service exercise period, the option may not be
exercised in the aggregate for more than the number of shares (if any) in
which the Optionee is vested at the time of his or her cessation of
Service. Upon the expiration of the limited post-Service exercise period
or (if earlier) upon the specified expiration date of the option term,
each such option shall terminate and cease to be outstanding with respect
to any vested shares for which the option has not otherwise been
exercised. However, each outstanding option shall immediately terminate
and cease to be outstanding, at the time of the Optionee's cessation of
Service, with respect to any shares for which the option is not otherwise
at that time exercisable or in which the Optionee is not otherwise vested.
- Under no circumstances shall any such option be exercisable after the
specified expiration date of the option term.
- Should (i) the Optionee's Service be terminated for misconduct (including,
but not limited to, any act of dishonesty, willful misconduct, fraud or
embezzlement) or (ii) the Optionee make any unauthorized use or disclosure
of confidential information or trade secrets of the Corporation or its
parent or subsidiary corporations, then in any such event all outstanding
options held by the Optionee under this Article Two shall terminate
immediately and cease to be outstanding.
2. The Plan Administrator shall have complete discretion, exercisable
either at the time the option is granted or at any time while the option remains
outstanding, to permit one or more options held by the Optionee under this
Article Two to be exercised, during the limited post-Service exercise period
applicable under subparagraph 1 above, not only with respect to the number of
vested shares of Common Stock for which each such option is exercisable at the
time of the Optionee's cessation of Service but also with respect to one or more
subsequent installments of vested shares for which the option would otherwise
have become exercisable had such cessation of Service not occurred.
3. The Plan Administrator shall also have full power and authority,
exercisable either at the time the option is granted or at any time while the
option remains outstanding, to extend the period of time for which the option is
to remain exercisable following the Optionee's cessation of Service or death
from the limited period in effect under subparagraph 1 above to such greater
period of time as the Plan Administrator shall deem appropriate. In no event,
however, shall such option be exercisable after the specified expiration date of
the option term.
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D. STOCKHOLDER RIGHTS. An Optionee shall have no stockholder rights with
respect to any shares covered by the option until such individual shall have
exercised the option and paid the exercise price for the purchased shares.
E. REPURCHASE RIGHTS. The shares of Common Stock acquired upon the
exercise of any Article Two option grant may be subject to repurchase by the
Corporation in accordance with the following provisions:
- The Plan Administrator shall have the discretion to authorize the issuance
of unvested shares of Common Stock under this Article Two. Should the
Optionee cease Service while holding such unvested shares, the Corporation
shall have the right to repurchase any or all of those unvested shares at
the exercise price paid per share. The terms and conditions upon which
such repurchase right shall be exercisable (including the period and
procedure for exercise and the appropriate vesting schedule for the
purchased shares) shall be established by the Plan Administrator and set
forth in the instrument evidencing such repurchase right.
- All of the Corporation's outstanding repurchase rights under this Article
Two shall automatically terminate, and all shares subject to such
terminated rights shall immediately vest in full, upon the occurrence of a
Corporate Transaction, except to the extent: (i) any such repurchase right
is expressly assigned to the successor corporation (or parent thereof) in
connection with the Corporate Transaction or (ii) such termination is
precluded by other limitations imposed by the Plan Administrator at the
time the repurchase right is issued.
- The Plan Administrator shall have the discretionary authority, exercisable
either before or after the Optionee's cessation of Service, to cancel the
Corporation's outstanding repurchase rights with respect to one or more
shares purchased or purchasable by the Optionee under this Discretionary
Option Grant Program and thereby accelerate the vesting of such shares in
whole or in part at any time.
II. INCENTIVE OPTIONS
The terms and conditions specified below shall be applicable to all
Incentive Options granted under this Article Two. Incentive Options may only be
granted to individuals who are Employees of the Corporation. Options which are
specifically designated as Non-Statutory Options when issued under the Plan
shall NOT be subject to such terms and conditions.
A. DOLLAR LIMITATION. The aggregate Fair Market Value (determined as of
the respective date or dates of grant) of the Common Stock for which one or more
options granted to any Employee under this Plan (or any other option plan of the
Corporation or its parent or subsidiary corporations) may for the first time
become exercisable as incentive stock options under the Federal tax laws during
any one calendar year shall not exceed the sum of One Hundred Thousand Dollars
($100,000). To the extent the Employee holds two (2) or more such options which
become exercisable for the first time in the same calendar year, the foregoing
limitation on the exercisability of such options as incentive stock options
under the Federal tax laws shall be applied on the basis of the order in which
such options are granted. Should the number of shares of Common Stock for which
any Incentive Option first becomes exercisable in any calendar year exceed the
applicable One Hundred Thousand Dollar ($100,000) limitation, then that option
may nevertheless be exercised in that calendar year for the excess number of
shares as a non-statutory option under the Federal tax laws.
B. 10% STOCKHOLDER. If any individual to whom an Incentive Option is
granted is the owner of stock (as determined under Section 424(d) of the Code)
possessing ten percent (10%) or more of the total combined voting power of all
classes of stock of the Corporation or any one of its parent or subsidiary
corporations, then the exercise price per share of the Common Stock subject to
that option shall not be less than one hundred and ten percent (110%) of the
Fair Market Value per share of that security on the grant date, and the option
term shall not exceed five (5) years, measured from the grant date.
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Except as modified by the preceding provisions of this Section II, the
provisions of Articles One, Two and Four of the Plan shall apply to all
Incentive Options granted hereunder.
III. CORPORATE TRANSACTIONS/CHANGES IN CONTROL
A. In the event of any Corporate Transaction, each option which is at the
time outstanding under this Article Two shall automatically accelerate so that
each such option shall, immediately prior to the specified effective date for
the Corporate Transaction, become fully exercisable for all of the shares of
Common Stock at the time subject to such option and may be exercised for all or
any portion of such shares. However, an outstanding option under this Article
Two shall NOT so accelerate if and to the extent: (i) such option is, in
connection with the Corporate Transaction, either to be assumed by the successor
corporation or parent thereof or to be replaced with a comparable option to
purchase shares of the capital stock of the successor corporation or parent
thereof, (ii) such option is to be replaced with a cash incentive program of the
successor corporation which preserves the option spread existing at the time of
the Corporate Transaction and provides for subsequent payout in accordance with
the same vesting schedule applicable to such option or (iii) the acceleration of
such option is subject to other limitations imposed by the Plan Administrator at
the time of the option grant. The determination of option comparability under
clause (i) above shall be made by the Plan Administrator, and its determination
shall be final, binding and conclusive.
B. Immediately following the completion of the Corporate Transaction, all
outstanding options under this Article Two shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation or its
parent company.
C. Each outstanding option under this Article Two which is assumed in
connection with the Corporate Transaction or is otherwise to continue in effect
shall be appropriately adjusted, immediately after such Corporate Transaction,
to apply and pertain to the number and class of securities which would have been
issued to the option holder, in completion of such Corporate Transaction, had
such person exercised the option immediately prior to such Corporate
Transaction. Appropriate adjustments shall also be made to the exercise price
payable per share, PROVIDED the aggregate exercise price payable for such
securities shall remain the same. In addition, the class and number of
securities available for issuance under the Plan on both an aggregate and per
participant basis following the completion of the Corporate Transaction shall be
appropriately adjusted.
D. The Plan Administrator shall have the discretion, exercisable either at
the time the option is granted or at any time while the option remains
outstanding, to provide (upon such terms as it may deem appropriate) for both
(i) the automatic acceleration of one or more outstanding options granted under
this Article Two Plan which are assumed or replaced in a Corporate Transaction
and do not otherwise accelerate at that time and (ii) the immediate termination
of one or more of the Corporation's outstanding repurchase rights which are
assigned in connection with such Corporate Transaction and do not otherwise
terminate at that time, in the event the Optionee's Service should subsequently
terminate within a designated period following the effective date of such
Corporate Transaction.
E. The Plan Administrator shall have the discretionary authority,
exercisable either in advance of any actually-anticipated Change in Control or
at the time of an actual Change in Control, to provide for the automatic
acceleration of one or more outstanding options under this Article Two (and the
immediate termination of one or more of the Corporation's outstanding repurchase
rights under this Article Two) upon the occurrence of the Change in Control. The
Plan Administrator shall also have full power and authority to condition any
such option acceleration (and the termination of any outstanding repurchase
rights) upon the subsequent termination of the Optionee's Service within a
specified period following the Change in Control.
F. Any options accelerated in connection with the Change in Control shall
remain fully exercisable until the expiration or sooner termination of the
option term.
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G. The grant of options under this Article Two shall in no way affect the
right of the Corporation to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
H. The exercisability as incentive stock options under the Federal tax laws
of any options accelerated under this Section III in connection with a Corporate
Transaction or Change in Control shall remain subject to the dollar limitation
of Section II of this Article Two. To the extent such dollar limitation is
exceeded, the accelerated option shall be exercisable as a non-statutory option
under the Federal tax laws.
IV. STOCK APPRECIATION RIGHTS
A. Provided and only if the Plan Administrator determines in its discretion
to implement the stock appreciation right provisions of this Section IV, one or
more Optionees may be granted the right, exercisable upon such terms and
conditions as the Plan Administrator may establish, to surrender all or part of
an unexercised option under this Article Two in exchange for a distribution from
the Corporation in an amount equal to the excess of (i) the Fair Market Value
(on the option surrender date) of the number of shares of Common Stock in which
the Optionee is at the time vested under the surrendered option (or surrendered
portion thereof) over (ii) the aggregate exercise price payable for such vested
shares.
B. No surrender of an option shall be effective hereunder unless it is
approved by the Plan Administrator. If the surrender is so approved, then the
distribution to which the Optionee shall accordingly become entitled under this
Section IV may be made in shares of Common Stock valued at Fair Market Value on
the option surrender date, in cash, or partly in shares and partly in cash, as
the Plan Administrator shall in its sole discretion deem appropriate.
C. If the surrender of an option is rejected by the Plan Administrator,
then the Optionee shall retain whatever rights the Optionee had under the
surrendered option (or surrendered portion thereof) on the option surrender date
and may exercise such rights at any time prior to the LATER of (i) five (5)
business days after the receipt of the rejection notice or (ii) the last day on
which the option is otherwise exercisable in accordance with the terms of the
instrument evidencing such option, but in no event may such rights be exercised
more than ten (10) years after the date of the option grant.
D. One or more officers of the Corporation subject to the short-swing
profit restrictions of the Federal securities laws may, in the Plan
Administrator's sole discretion, be granted limited stock appreciation rights
with respect to their outstanding options under the Plan. Upon the occurrence of
a Hostile Take-Over, the officer shall have a thirty (30)-day period in which he
or she may surrender any outstanding options with such a limited stock
appreciation right in effect for at least six (6) months to the Corporation, to
the extent such option is at the time exercisable for fully-vested shares of
Common Stock. The officer shall in return be entitled to a cash distribution
from the Corporation in an amount equal to the excess of (i) the Take-Over Price
of the vested shares of Common Stock at the time subject to each surrendered
option (or surrendered portion of such option) over (ii) the aggregate exercise
price payable for such shares. The cash distribution payable upon such option
surrender shall be made within five (5) days following the date the option is
surrendered to the Corporation. Neither the approval of the Plan Administrator
nor the consent of the Board shall be required in connection with such option
surrender and cash distribution. Any unsurrendered portion of the option shall
continue to remain outstanding and become exercisable in accordance with the
terms of the instrument evidencing such grant.
E. The shares of Common Stock subject to any option surrendered for an
appreciation distribution pursuant to this Section IV shall not be available for
subsequent issuance under the Plan.
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ARTICLE THREE
DIRECTOR FEE PROGRAM
I. ELIGIBILITY
Subject to the availability of shares of Common Stock under the Plan
pursuant to Article One, Section VI of the Plan, each individual serving as a
non-employee Board member shall be eligible to apply all or any portion of the
annual retainer fee otherwise payable to him or her in cash to the acquisition
of unvested shares of Common Stock under this Article Three Program.
II. ELECTION PROCEDURE
A. FILING. The non-employee Board member must make the
stock-in-lieu-of-fee election prior to the start of the calendar year for which
the election is to be effective. The first calendar year for which any such
election may be filed shall be the 1994 calendar year. The election must be
filed with the Plan Administrator on the appropriate form provided for this
purpose, and the election, once filed, shall be irrevocable. The election for
any upcoming calendar year may be filed at any time prior to the start of that
year, but in no event later than December 31 of the immediately preceding
calendar year. The non-employee Board member may file a standing election to be
in effect for two or more consecutive calendar years or to remain in effect
indefinitely until revoked by written instrument filed with the Plan
Administrator at least six (6) months prior to the start of the first calendar
year for which such standing election is no longer to remain in effect.
B. ELECTION FORM. On the election form, the non-employee Board member must
indicate the percentage or dollar amount of his or her annual retainer fee to be
applied to the acquisition of unvested shares under this Article Three Program
to be issued in lieu of such fee. The non-employee Board member may elect to
apply a portion of the fee to the acquisition of Common Stock.
III. SHARE ISSUANCE
A. ISSUE DATE. On the first trading day in January of the calendar year
for which the election is effective, the portion of the retainer fee subject to
such election shall automatically be applied to the acquisition of the selected
shares of Common Stock by dividing the elected dollar amount by the Fair Market
Value per share of the Common Stock on that trading day. The number of issuable
shares shall be rounded down to the next whole share, and the issued shares
shall be held in escrow by the Secretary of the Corporation until the
non-employee Board member vests in those shares. The non-employee Board member
shall have full stockholder rights, including voting, dividend and liquidation
rights, with respect to all issued shares held in escrow on his or her behalf,
but such shares shall not be assignable or transferable while they remain
unvested.
B. VESTING. Upon completion of each calendar quarter of Board service
during the year for which the election is in effect, the non-employee Board
member shall vest in one-fourth of the issued shares, and the stock certificate
for those shares shall be released from escrow. Immediate vesting in all the
issued shares shall occur in the event (i) the non-employee Board member should
die or become Permanently Disabled during his or her period of Board service or
(ii) there should occur a Corporate Transaction or Change in Control while such
individual remains in Board service. Should such individual cease Board service
prior to vesting in one or more quarterly installments of the issued shares,
then those unvested shares shall immediately be surrendered to the Corporation
for cancellation, and the non-employee Board member shall not be entitled to any
cash payment or other consideration from the Corporation with respect to the
cancelled shares and shall have no further stockholder rights with respect to
such shares.
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IV. AMENDMENT OF THE DIRECTOR FEE PROGRAM
F. LIMITED AMENDMENTS. The provisions of this Director Fee Program,
together with the unvested share issuances outstanding under this Article Three,
may not be amended at intervals more frequently than once every six (6) months,
other than to the extent necessary to comply with applicable Federal income tax
laws and regulations.
ARTICLE FOUR
MISCELLANEOUS
I. LOANS OR INSTALLMENT PAYMENTS
A. The Plan Administrator may, in its discretion, assist any Optionee
(including an officer of the Corporation) in the exercise of one or more options
granted to such Optionee under the Discretionary Option Grant Program, including
the satisfaction of any Federal, state and local income and employment tax
obligations arising therefrom, by (i) authorizing the extension of a loan from
the Corporation to such Optionee or (ii) permitting the Optionee to pay the
exercise price for the purchased shares in installments over a period of years.
The terms of any loan or installment method of payment (including the interest
rate and terms of repayment) shall be upon such terms as the Plan Administrator
specifies in the applicable option agreement or otherwise deems appropriate
under the circumstances. Loans or installment payments may be authorized with or
without security or collateral. However, the maximum credit available to the
Optionee may not exceed the exercise price of the acquired shares (less the par
value of such shares) plus any Federal, state and local income and employment
tax liability incurred by the Optionee in connection with the acquisition of
such shares.
B. The Plan Administrator may, in its absolute discretion, determine that
one or more loans extended under this financial assistance program shall be
subject to forgiveness by the Corporation in whole or in part upon such terms
and conditions as the Plan Administrator may deem appropriate.
II. AMENDMENT OF THE PLAN AND AWARDS
A. The Board has complete and exclusive power and authority to amend or
modify the Plan (or any component thereof) in any or all respects whatsoever.
However, (i) no such amendment or modification shall adversely affect rights and
obligations with respect to options at the time outstanding under the Plan,
unless the Optionee consents to such amendment, and (ii) any amendment made to
the Director Fee Program (or any stock options or share issuances outstanding
thereunder) shall be in compliance with the limitation of Section IV of Article
Four. In addition, the Board may not, without the approval of the Corporation's
stockholders, amend the Plan to (i) materially increase the maximum number of
shares issuable under the Plan, or increase the maximum number of shares of
Common Stock for which any one participant may receive stock options, separately
exercisable stock appreciation rights and direct share issuances over the term
of the Plan, except for permissible adjustments under Section VI.F of Article
One, (ii) materially modify the eligibility requirements for plan participation
or (iii) materially increase the benefits accruing to plan participants.
B. Options to purchase shares of Common Stock may be granted under the
Discretionary Option Grant Program, which are in excess of the number of shares
then available for issuance under the Plan, provided any excess shares actually
issued under the Discretionary Option Grant Program are held in escrow until
stockholder approval is obtained for a sufficient increase in the number of
shares available for issuance under the Plan. If such stockholder approval is
not obtained within twelve (12) months after the date the first such excess
option grants are made, then (i) any unexercised excess options shall terminate
and cease to be exercisable and (ii) the Corporation shall promptly refund the
purchase price paid for any excess shares actually issued under the Plan and
held in escrow, together with interest (at the applicable Short Term Federal
Rate) for the period the shares were held in escrow.
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III. TAX WITHHOLDING
A. The Corporation's obligation to deliver shares of Common Stock upon the
exercise of stock options for such shares or the vesting of such shares under
the Plan shall be subject to the satisfaction of all applicable Federal, state
and local income and employment tax withholding requirements.
B. The Plan Administrator may, in its discretion and in accordance with the
provisions of this Section III of Article Four and such supplemental rules as
the Plan Administrator may from time to time adopt (including the applicable
safe-harbor provisions of Securities and Exchange Commission Rule 16b-3),
provide any or all holders of Non-Statutory Options or unvested shares (other
than the unvested shares issued under the Director Fee Program) with the right
to use shares of the Corporation's Common Stock in satisfaction of all or part
of the Federal, state and local income and employment tax liabilities incurred
by such holders in connection with the exercise of their options or the vesting
of their shares (the "Taxes"). Such right may be provided to any such holder in
either or both of the following formats:
STOCK WITHHOLDING: The holder of the Non-Statutory Option or unvested
shares may be provided with the election to have the Corporation withhold, from
the shares of Common Stock otherwise issuable upon the exercise of such
Non-Statutory Option or the vesting of the shares, a portion of those shares
with an aggregate Fair Market Value equal to the percentage of the applicable
Taxes (not to exceed one hundred percent (100%)) designated by the holder.
STOCK DELIVERY: The Plan Administrator may, in its discretion, provide the
holder of the Non-Statutory Option or the unvested shares with the election to
deliver to the Corporation, at the time the Non-Statutory Option is exercised or
the shares vest, one or more shares of Common Stock previously acquired by such
individual (other than in connection with the option exercise triggering the
Taxes) with an aggregate Fair Market Value equal to the percentage of the Taxes
incurred in connection with such option exercise or share vesting (not to exceed
one hundred percent (100%)) designated by the holder.
IV. EFFECTIVE DATE AND TERM OF PLAN
A. The 1993 Plan originally became effective immediately upon adoption by
the Board on November 29, 1993. The Plan, as amended hereby, will become
effective immediately upon completion of the Company's proposed
recapitalization. Stock options may be made under the Plan, as amended hereby,
immediately thereafter upon the effective date of this amendment.
B. The Plan shall terminate upon the EARLIER of (i) November 28, 2003 or
(ii) the date on which all shares available for issuance under the Plan shall
have been issued or cancelled pursuant to the exercise, surrender or cash-out of
the options granted under the Plan or the issuance of shares (whether vested or
unvested) under the Director Fee Program. If the date of termination is
determined under clause (i) above, then all option grants and unvested share
issuances outstanding on such date shall thereafter continue to have force and
effect in accordance with the provisions of the instruments evidencing such
grants or issuances.
V. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares
pursuant to option grants or share issuances under the Plan shall be used for
general corporate purposes
VI. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any option under the
Plan, the issuance of any shares under the Director Fee Program and the issuance
of Common Stock upon the exercise or surrender of the option grants made
hereunder shall be subject to the Corporation's procurement of all approvals
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and permits required by regulatory authorities having jurisdiction over the
Plan, the options granted under it and the Common Stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued or delivered
under this Plan unless and until there shall have been compliance with all
applicable requirements of Federal and state securities laws, including the
filing and effectiveness of the Form S-8 registration statement for the shares
of Common Stock issuable under the Plan, and all applicable listing requirements
of any securities exchange on which the Common Stock is then listed for trading.
VII. NO EMPLOYMENT/SERVICE RIGHTS
Neither the action of the Corporation in establishing the Plan, nor any
action taken by the Plan Administrator hereunder, nor any provision of the Plan
shall be construed so as to grant any individual the right to remain in the
Service of the Corporation (or any parent or subsidiary corporation) for any
period of specific duration, and the Corporation (or any parent or subsidiary
corporation retaining the services of such individual) may terminate such
individual's Service at any time and for any reason, with or without cause.
VIII. MISCELLANEOUS PROVISIONS
A. Except to the extent otherwise expressly provided under the Plan, the
right to acquire Common Stock or other assets under the Plan may not be
assigned, encumbered or otherwise transferred by any Optionee or Participant.
B. The provisions of the Plan relating to the exercise of options and the
vesting of shares shall be governed by the laws of the State of California, as
such laws are applied to contracts entered into and performed in such State.
C. The provisions of the Plan shall inure to the benefit of, and be binding
upon, the Corporation and its successors or assigns, whether by Corporate
Transaction or otherwise, and the Optionees and any holders of unvested shares
under the Plan, the legal representatives of their respective estates, their
respective heirs or legatees and their permitted assignees.
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EXHIBIT 4
1. Financing and Accounting Services Agreement dated as of September 30, 1993
between the Company and The Koll Company.
2. Management Information Systems and Human Resources Services Agreement dated
as of September 30, 1993 between the Company and Koll Management Services,
Inc.
3. License Agreement dated September 30, 1993, as amended, among the Company,
The Koll Company and Mr. Donald M. Koll.
4. Sublease Agreement dated September 30, 1993 between the Company and the Koll
Company.
5. Employment Agreement between the Company and Mr. Donald M. Koll dated April
28, 1997.
6. Employment Agreement between the Company and Mr. Richard M. Ortwein dated
April 28, 1997.
7. Employment Agreement between the Company and Mr. Raymond J. Pacini dated
April 28, 1997.
8. Consulting Agreement between the Company and Mr. Ray Wirta dated April 28,
1997.
9. Agreement between the Company and Rothschild, Inc. dated May 31, 1996.
10. Agreement between the Company and Houlihan Lokey Howard and Zukin, Inc.
dated February 6, 1996.
11. Mutual Release and Settlement Agreement dated as of April 11, 1997 by and
between (i) MAFCO Consolidated Group Inc. and New ABCO Holdings Inc., and
(ii) Koll Real Estate Group, Inc., The Henley Group, Inc. and New Henley
Holdings Inc.
