Exhibit 10.1
EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of
October 30, 2006, by and among CB Richard Ellis Group, Inc., a
Delaware corporation (“ Parent ”), A-2
Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent (“ Acquiror ”), Trammell
Crow Company, a Delaware corporation (the “ Company
”), and the undersigned stockholder (“
Stockholder ”) of the Company.
RECITALS
A. Concurrently with the execution
of this Agreement, Parent, Acquiror and the Company have entered
into an Agreement and Plan of Merger (the “ Merger
Agreement ”), which provides for the merger (the “
Merger ”) of Acquiror with and into the Company, with
the Company continuing its existence as the surviving
corporation.
B. As of the date hereof,
Stockholder Beneficially Owns (as defined below) the number of
Shares (as defined below) of capital stock of the Company as set
forth on the signature page of this Agreement.
C. In order to induce Parent and
Acquiror to execute the Merger Agreement, Stockholder desires to
restrict the transfer or disposition of, and desires to vote, the
Shares as provided in this Agreement, and the execution and
delivery of this Agreement and the Proxy (as defined below) is a
material condition to Parent’s and Acquiror’s
willingness to enter into the Merger Agreement.
D. As a stockholder of the Company,
the Stockholder will benefit from the execution and delivery of the
Merger Agreement and the consummation of the transactions
contemplated thereby.
NOW, THEREFORE, the parties hereto
hereby agree as follows:
1. Certain Definitions
. Capitalized terms not defined herein shall have the meanings
ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) A Person shall be deemed to
“ Beneficially Own ” a security if such Person
has “beneficial ownership” of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act
of 1934, as amended.
(b) “ Constructive Sale
” means, with respect to any security, a short sale or
entering into or acquiring an offsetting derivative contract with
respect to such security, entering into or acquiring a futures or
forward contract to deliver such security or entering into any
other hedging or other derivative transaction that has the effect
of materially changing the economic benefits and risks of ownership
of such security.
(c) “ Expiration Date
” means the earlier to occur of (i) such date and time
as the Merger shall become effective in accordance with the terms
and provisions of the Merger
Agreement and (ii) such date
and time as the Merger Agreement shall have been validly terminated
pursuant to Article 10 thereof.
(d) “ Options ”
means: (i) all securities Beneficially Owned by Stockholder as
of the date of this Agreement that are convertible into, or
exercisable or exchangeable for, shares of capital stock of the
Company, including, without limitation, options, warrants and other
rights to acquire shares of common stock, par value $0.01 per
share, of the Company (the “ Company Common Stock
”) or other shares of capital stock of the Company; and
(ii) all securities of which Stockholder acquires Beneficial
Ownership during the period from the date of this Agreement through
and including the Expiration Date that are convertible into, or
exercisable or exchangeable for, shares of capital stock of the
Company, including, without limitation, options, warrants and other
rights to acquire shares of Company Common Stock or other shares of
capital stock of the Company.
(e) “ Person ”
means any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or
(iii) Governmental Entity.
(f) “ Shares ”
means: (i) all shares of capital stock of the Company
Beneficially Owned by Stockholder as of the date of this Agreement;
and (ii) all shares of capital stock of the Company of which
Stockholder acquires Beneficial Ownership during the period from
the date of this Agreement through and including the Expiration
Date, including, without limitation, in each case, shares issued
upon the conversion, exercise or exchange of Options.
(g) “ Transfer ”
means, with respect to any security, the direct or indirect
(i) assignment, sale, transfer, tender, pledge, hypothecation,
placement in voting trust, Constructive Sale or other disposition
of such security (excluding transfers by testamentary or intestate
succession), of any right, title or interest in such security
(including, without limitation, any right or power to vote to which
the holder thereof may be entitled, whether such right or power is
granted by proxy or otherwise) or of the record or beneficial
ownership of such security, or (ii) offer to make any such
sale, transfer, tender, pledge, hypothecation, placement in voting
trust, Constructive Sale or other disposition, and each agreement,
arrangement or understanding, whether or not in writing, to effect
any of the foregoing, in each case, excluding any (1) Transfer
pursuant to a court order and (2) such actions pursuant to
which the Stockholder maintains all voting rights with respect to
such security.
2. No Transfer of Shares or
Options . Stockholder agrees that, at all times during the
period beginning on the date hereof and ending on the Expiration
Date, Stockholder shall not Transfer (or cause or permit any
Transfer of) any Shares or Options, or make any agreement relating
thereto, in each case, without the prior written consent of Parent.
Stockholder agrees that any Transfer in violation of this Agreement
shall be void and of no force or effect.
3. No Transfer of Voting
Rights . Stockholder agrees that, during the period from
the date of this Agreement through and including the Expiration
Date, Stockholder shall not deposit (or cause or permit the deposit
of) any Shares or Options in a voting trust or grant (or cause or
permit the grant of) any proxy or enter into (or cause or permit
the entry into) any
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voting agreement or similar agreement with
respect to any of the Shares or Options other than as contemplated
by this Agreement, Proxy and the Merger Agreement.
4. Agreement to Vote
Shares .
(a) Until the Expiration Date, at
every meeting of stockholders of the Company, however called, at
every adjournment or postponement thereof, and on every action or
approval by written consent of stockholders of the Company with
respect to any of the following, Stockholder shall vote, to the
extent not voted by the Person(s) appointed under the Proxy (as
defined below), all of the Shares or cause the Shares to be
voted:
(i) in favor of (1) adoption of
the Merger Agreement, including all actions and transactions
contemplated by the Merger Agreement or the Proxy and (2) any
other actions presented to holders of shares of capital stock of
the Company in furtherance of the Merger Agreement, the Merger and
the other actions and transactions contemplated by the Merger
Agreement or the Proxy;
(ii) against approval of any
proposal made in opposition to, or in competition with, the Merger
Agreement or consummation of the Merger and the other transactions
contemplated by the Merger Agreement or the Proxy; and
(iii) against any action that is
intended, or could reasonably be expected to, in any manner impede,
frustrate, prevent, nullify, interfere with, delay, postpone,
discourage or otherwise adversely affect the consummation of the
Merger or any of the other transactions contemplated by the Merger
Agreement in accordance with the terms of the Merger
Agreement.
(b) Stockholder shall not enter into
any agreement or understanding with any person to vote or give
instructions in any manner inconsistent with this
Section 4 .
5. Irrevocable Proxy .
Concurrently with the execution of this Agreement, Stockholder
agrees to deliver to Parent an irrevocable proxy in the form
attached hereto as Exhibit A (the “ Proxy
”), which shall be irrevocable to the fullest extent
permitted by applicable law, covering all Shares.
6. Representations, Warranties
and Covenants of Stockholder . Stockholder represents,
warrants and covenants to Parent and Acquiror as
follows:
(a) Stockholder is the Beneficial
Owner of the Shares and the Options indicated on the signature page
of this Agreement.
(b) As of the date hereof,
Stockholder does not Beneficially Own any shares of capital stock
of the Company or any securities convertible into, or exchangeable
or exercisable for, shares of capital stock of the Company, other
than the Shares and Options set forth on the signature page
hereto.
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(c) Stockholder has the full power
to dispose, vote or direct the voting of the Shares for and on
behalf of all beneficial owners of the Shares.
(d) The Shares are, and at all times
up to and including the Expiration Date the Shares will be,
Beneficially Owned by Stockholder, free and clear of any rights of
first refusal, co-sale rights, security interests, liens, pledges,
claims, options, charges, proxies, voting trusts or agreements,
understandings or arrangement, or any other encumbrances of any
kind or nature (“ Encumbrances ”).
(e) The execution and delivery of
this Agreement and the Proxy by Stockholder do not, and
Stockholder’s performance of its obligations under this
Agreement will not conflict with or violate or require any consent,
approval or notice under, any order, decree, judgment, statute,
law, rule, regulation or agreement applicable to Stockholder or by
which Stockholder or any of Stockholder’s properties or
assets, including, without limitation, the Shares and Options, is
bound.
(f) Stockholder has full power and
authority to make, enter into and carry out the terms of this
Agreement, and the Proxy, in each case with respect to all of the
Shares without limitation, qualification or restriction on such
power and authority.
(g) Subject to
Section 12 , Stockholder agrees that in his or her
capacity as a stockholder of the Company, he or she will not
(a) bring, commence, institute, maintain, prosecute,
participate in or voluntarily aid any action, claim, suit or cause
of action, in law or in equity, in any court or before any
governmental entity (an “ Action ”), which
challenges the validity of or seeks to enjoin the operation of any
provision of this Agreement or the Proxy or (b) bring or
commence any Action that alleges that the execution and delivery of
this Agreement or the Proxy by Stockholder, either alone or
together with the other voting agreements and proxies to be
delivered in connection with the execution of the Merger Agreement,
or the approval of the Merger Agreement by the board of directors
of the Company, breaches any fiduciary duty of the board of
directors of the Company or any member thereof.
(h) Except as ex
