Exhibit 4.1
[CONFORMED COPY]
THIRD AMENDMENT AND
WAIVER
TO
SECURITYHOLDERS’
AGREEMENT
THIRD AMENDMENT AND WAIVER TO
SECURITYHOLDERS’ AGREEMENT, dated as of August 1, 2005 (this
“ Amendment and Waiver ”), among (i) CB Richard
Ellis Services, Inc., a Delaware corporation (“ CBRE
”), and CB Richard Ellis Group, Inc., a Delaware corporation
formerly known as CBRE Holding, Inc. (the “ Company
”), (ii) Blum Strategic Partners, L.P., a Delaware limited
partnership formerly known as RCBA Strategic Partners, L.P.
(“ Strategic I ”), Blum Strategic Partners II,
L.P., a Delaware limited partnership (“ Strategic II
”), and Blum Strategic Partners II GmbH & Co. KG, a
German limited partnership (“ Strategic II KG ,”
and together with Strategic I and Strategic II, the “ Blum
Funds ”), (iii) Frederic V. Malek (“ Malek
”) and (vi) the individuals identified on the signature pages
hereto as “Management Investors” (together, the “
Management Investors ,” and together with the Blum
Funds and Malek, the “ Investors ”).
RECITALS:
A. The Company, CBRE and the
Investors are parties to a Securityholders’ Agreement, dated
as of July 20, 2001 (as amended on April 14, 2004 and November 24,
2004 and as may be further amended from time to time, the “
Securityholders’ Agreement ”; capitalized terms
used herein and not otherwise defined have the meanings ascribed
thereto in the Securityholders’ Agreement) which provides
for, among other things, the registration of shares of Common Stock
held by the Investors, upon the terms and subject to the conditions
set forth therein;
B. The Company intends to file a
Registration Statement on Form S-3 (the “ Shelf
Registration Statement ”) with the SEC pursuant to the
Securities Act, in connection with the registration of 6,000,000
shares of the Class A Common Stock by the Selling Investors (as
defined below); and
C. The parties hereto wish to amend
and waive certain provisions in the Securityholders’
Agreement in connection with the Shelf Registration Statement, and
to provide for certain other matters.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements herein contained, the parties
hereto agree as follows:
Section 1. Request for
Registration . The BLUM Holders hereby request the filing of
the Shelf Registration Statement under Section 3.1 of the
Securityholders’ Agreement (as amended by this Amendment and
Waiver). For avoidance of any doubt, the request made pursuant to
this Section 1 shall constitute a registration request for purposes
of Section 3(e)(ii) of the Securityholders’ Agreement (as
amended by this Amendment and Waiver) resulting in four (4)
remaining demand registration requests being available after the
Shelf Registration Statement referred to above has been
effected.
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Section 2. Waiver of Advance
Notice . Each of the Investors hereby waives the requirement of
the Company set forth in Section 3.1(a) of the
Securityholders’ Agreement (as amended by this Amendment and
Waiver) to notify all Holders of Registrable Securities in writing
within five (5) days of the receipt of the request for registration
by the BLUM Holders set forth in Section 1 hereto.
Section 3. Acknowledgement of
Notice . Each of the Company and Blum Strategic Partners, L.P.,
Blum Strategic Partners II, L.P. and Blum Strategic Partners II
GmbH & Co. KG (collectively the “ Selling
Investors ”) acknowledges and agrees that the provisions
of this Section 3 shall constitute the written notice required to
be delivered by each of the Selling Investors desiring to include
in the Registration Statement any of the Registrable Securities
held by it pursuant to Section 3.1 of the Securityholders’
Agreement (as amended by this Amendment and Waiver).
Section 4. Representations and
Warranties of the Selling Investors . Each of the Selling
Investors represents and warrants, severally and not jointly, to
the Company and the other Selling Investors that the total number
of shares of outstanding Common Stock to be included by such
Selling Investor for registration on the Shelf Registration
Statement is accurately set forth opposite such Investor’s
name on Schedule I hereto.
Section 5. Amendments to
Securityholders’ Agreement .
(a) Each of the Company, CBRE and
the Investors agree that (i) the defined terms “Initiating
Holder” and “Relevant Period” contained in
Section 1.1 of the Securityholders’ Agreement shall be
deleted in their entirety and (ii) the following defined terms
shall be added to Section 1.1 of the Securityholders’
Agreement, in each case in correct alphabetical order:
“ Initiating Holder
” has the meaning set forth in Section 3.1(a).
“ Marketed Take-down
” has the meaning set forth in Section 3.1(d).
“ Relevant Period
” has the meaning set forth in Section 3.1(e)(iv).
“ Shelf Registration
Statement ” has the meaning set forth in Section
3.1(b).
“ Suspension ”
shall have the meaning set forth in Section 3.1(f)(i).
“ Suspension Notice
” shall have the meaning set forth in Section
3.1(f)(i).
(b) Each of the Company, CBRE and
the Investors agree that Article III of the Securityholders’
Agreement shall be amended and restated in its entirety and shall
read as follows:
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3.1. Demand Registration
.
(a) Subject to the conditions of
this Section 3.1, if the Company shall receive a written request
from BLUM Holders holding not less than 25% of the Registrable
Securities then outstanding held by the BLUM Holders (each, an
“ Initiating Holder ”) that the Company file a
registration statement under the Securities Act covering the
registration of Registrable Securities, then the Company shall,
within five (5) days of the receipt thereof, give written notice of
such request to all Holders, who must respond in writing within
five (5) days requesting inclusion in the registration. The request
must specify the amount and intended manner of disposition of such
Registrable Securities. The Company, subject to the limitations of
this Section 3.1, must use its reasonable best efforts to effect,
as soon as practicable, the registration under the Securities Act
of all Registrable Securities that the Holders request to be
registered in accordance with this Section 3.1 together with any
other securities of the Company entitled to inclusion in such
registration.
(b) If a written request made by the
Initiating Holders under Section 3.1(a) hereof specifies that the
intended manner of disposition of Registrable Securities is to be
made by means of a shelf registration providing for resales of such
Registrable Securities, then, subject to the limitations of this
Section 3.1, the Company shall use its reasonable best efforts to
effect, as soon as reasonably practicable, the registration under
the Securities Act of all Registrable Securities that the Holders
request to be so registered in accordance with Section 3.1(a)
pursuant to a registration statement for an offering to be made on
a continuous basis pursuant to Rule 415 (or successor provision)
under the Securities Act (together with any amendments thereto, and
including any documents incorporated by reference therein, the
“ Shelf Registration Statement ”), which Shelf
Registration Statement shall provide for resales of such
Registrable Securities.
(c) If the Initiating Holders intend
to distribute the Registrable Securities covered by their request
by means of an underwriting, they shall so advise the Company as a
part of their request made pursuant to this Section 3.1 and the
Company shall include such information in the written notice
referred to in Section 3.1(a). In such event, the right of any
Holder to include its Registrable Securities in such registration
shall be conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder)
to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by a majority in
interest of the Initiating Holders (which underwriter or
underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 3.1, if the
managing underwriter advises the Company in writing that marketing
factors require a limitation of the number of securities to be
underwritten (including Registrable Securities) because the number
of securities to be underwritten is likely to have an adverse
effect on the price, timing or the distribution of the securities
to be offered, then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares that may be included in
the underwriting shall be allocated among participating Holders,
(i) first among the Initiating Holders and CalPERS as nearly as
possible on a pro rata basis based on the
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total number of Registrable
Securities held by all such Initiating Holders and CalPERS, and
(ii) second to the extent all Registrable Securities requested to
be included in such underwriting by the Initiating Holders have
been included, among the Holders requesting inclusion of
Registrable Securities in such underwritten offering (other than
the Initiating Holders and, if applicable, CalPERS), as nearly as
possible on a pro rata basis based on the total number of
Registrable Securities held by all such Holders. Any Registrable
Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration. To facilitate the allocation of
shares in accordance with the foregoing, the Company or the
underwriters may round the number of shares allocated to any Holder
to the nearest 100 shares.
(d) Notwithstanding the provisions
of Section 3.1(c) hereof, if a Shelf Registration Statement has
become effective in accordance with Section 3.1(b) hereof and an
Initiating Holder advises the Company in writing that it intends to
sell its Registrable Securities pursuant to an underwritten
“take-down” under such Shelf Registration Statement
which could involve a customary “road show” (a “
Marketed Take-down ”), then the Company shall, within
five (5) days of the receipt thereof, give written notice of such
intention to all Holders of Registrable Securities registered by
such Shelf Registration Statement, who must respond in writing
within five (5) days requesting inclusion of such Holders’
Registrable Securities in such Marketed Take-down. In such event,
the right of any Holder to include its Registrable Securities in
such Marketed Take-down shall be conditioned upon such
Holder’s participation in such Marketed Take-down and
inclusion of such Holder’s Registrable Securities in the
Marketed Take-down to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting
shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders (which underwriter
or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 3.1, if the
managing underwriter advises the Company in writing that marketing
factors require a limitation of the number of securities to be
underwritten (including Registrable Securities) because the number
of securities to be underwritten is likely to have an adverse
effect on the price, timing or the distribution of the securities
to be offered, then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares that may be included in
the underwriting shall be allocated among participating Holders,
(i) first among the Initiating Holders and CalPERS as nearly as
possible on a pro rata basis based on the total number of
Registrable Securities held by such Initiating Holders and CalPERS
and (ii) second to the extent all Registrable Securities requested
to be included in such underwriting by the Initiating Holders have
been included, among the Holders (other than the Initiating Holders
and CalPERS), as nearly as possible on a pro rata basis based on
the total number of Registrable Securities held by such Holders. To
facilitate the allocation of shares in accordance with the
foregoing, the Company or the underwriters may round the number of
shares allocated to any Holder to the nearest 100 shares. For the
avoidance of doubt, if any Initiating Holder desires to sell its
Registrable Securities pursuant to an underwritten
“take-down” under such Shelf Registration Statement
which does not involve a customary “road show”, then
the Holders will not have right to participate in such underwritten
“take-down”.
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(e) Notwithstanding the foregoing,
the Company shall not be required to effect a registration, a
Marketed Take-down or any other “take-down” under a
Shelf Registration Statement pursuant to this Section
3.1:
(i) in the case of a Shelf
Registration Statement, at any time as the Company shall not be
eligible to use a Form S-3 (or successor form) for such
registration statement;
(ii) in the case of a registration
requested pursuant to Section 3.1(a), after the Company has
effected five (5) registrations requested pursuant to such Section;
provided , however , that each Marketed Take-down
after the first Marketed Take-down requested by an Initiating
Holder under any Shelf Registration Statement shall be deemed to be
a requested registration by such Holder for purposes of this clause
(ii);
(iii) in the case of an underwritten
“take-down” (including a Marketed Take-down or a
non-marketed “take-down”) under any Shelf Registration
Statement, after the Company has effected three (3) underwritten
“take-downs” (including Marketed Take-downs or
non-marketed “take-downs”) under such Shelf
Registration Statement; provided , however , that in
the event the Initiating Holder has initiated three (3)
underwritten “take-downs” under any particular Shelf
Registration Statement, the Initiating Holder may elect to make
additional underwritten “take-downs” under such Shelf
Registration Statement (including Marketed Take-downs and
non-marketed “take-downs”) subject to each such
additional “take-down” being deemed to be a requested
registration by such Initiating Holder for purposes of, and subject
to the limits set forth in, Section 3.1(e)(ii);
(iv) if less than 100,000
Registrable Securities (as adjusted for any stock split, reverse
stock split, stock dividend (including any dividend or distribution
of securities convertible into Registrable Securities),
extraordinary cash dividend, reorganization, recapitalization,
reclassification, combination, exchange of stock or other similar
changes) are to be sold;
(v) if within five (5) days of
receipt of a written request from the Initiating Holders pursuant
to Section 3.1(a) or 3.1(b), the Company in good faith gives notice
to the Initiating Holders of the Company’s intention to make
a public offering within ninety (90) days in which case Section 3.2
shall govern; provided that if the Company does not file a
registration statement under the Securities Act relating to such
public offering within such ninety (90) day period (such 90 day
period being referred to herein as the “ Relevant
Period ”) the Company shall be prohibited from delivering
additional notices pursuant to this Section 3.1(e)(v) until the
181 st day following the last day of the
Relevant Period; or
(vi) if the Company shall furnish to
Holders requesting a registration statement pursuant to this
Section 3.1, a certificate signed by the Company’s Chief
Executive Officer stating that in the good faith judgment of the
Board, it would be seriously detrimental to the Company for such
registration statement to be effected at such time, in which event
the Company shall have the right to defer such filing for a period
of not more than sixty (60) days after receipt of the request of
the Initiating Holders; provided that the Company shall not
defer filings pursuant to this clause (vi) more than an aggregate
of one hundred twenty (120) days in any twelve (12) month
period.
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(f) (i) With respect to any
effective Shelf Registration Statement, subject to Section
3.1(f)(ii) below, in the event (A) of the issuance by the SEC or
any other federal or state governmental authority of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose; (B) of the
receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of
any of the Registrable Securities registered by such Shelf
Registration Statement for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; (C)
of any event or circumstance which, upon the advice of the
Company’s counsel, necessitates the making of any changes to
such Shelf Registration Statement or the prospectus which forms a
part thereof, or any document incorporated or deemed to be
incorporated therein by reference, so that such Shelf Registration
Statement, will not contain any untrue statement of a material fact
or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and such prospectus, will not contain any untrue statement of a
material fact or any omission to state a material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; or (D) the Company shall determine that there is a
material development or transaction affecting the Company that has
not yet been publicly disclosed, the disclosure of which would, in
the good faith judgment of the Board, materially and adversely
affect the Company, then the Company shall deliver a certificate in
writing to each Holder of Registrable Securities registered by such
Shelf Registration Statement (the “ Suspension Notice
”) to the effect of the foregoing and, upon receipt of such
Suspension Notice, such Holder will refrain from selling any
Registrable Securities pursuant to such Shelf Registration
Statement (a “ Suspension ”) until such
Holder’s receipt of copies of a supplemented or amended
prospectus prepared and filed by the Company, or until it is
advised in writing by the Company that the current prospectus may
be used, and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference
in any such prospectus. In the event of any Suspension, the Company
will use its reasonable best efforts to cause the use of the
prospectus so suspended to be resumed as soon as reasonably
practicable after the delivery of a Suspension Notice to each
Holder.
(ii) Notwithstanding the provisions
of Section 3.1(f)(i), no Holder shall be prohibited in any twelve
(12) month period from selling Registrable Securities under the
Registration Statement as a result of Suspensions (A) for more than
sixty (60) days on any occasion or (B) for more than an aggregate
of one hundred twenty (120) days during such period.
(g) The Company shall select the
registration statement form for any registration pursuant to
Section 3.1, but shall cooperate with the requests of the
Initiating Holders or managing underwriters selected by them as to
the inclusion therein of information not specifically required by
such form.
3.2. Piggyback Registrations
.
(a) The Company shall notify all
Holders of Registrable Securities in writing at least fifteen (15)
days prior to the filing of any registration statement under the
Securities Act for purposes of a public offering of securities of
the Company (including, but not limited to, registration statements
relating to secondary offerings of securities of the Company, but
excluding (i) registration statements relating to employee benefit
plans or with respect to
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corporate reorganizations or other
transactions under Rule 145 of the Securities Act; and (ii) any
registration statement filed pursuant to Section 3.1 (with respect
to which the Holders rights to participate in such registered
offering shall be governed by Section 3.1); and, subject to Section
3.13(a), will use its best efforts to afford each such Holder an
opportunity to include in such registration statement all or part
of such Registrable Securities held by such Holder. Each Holder
desiring to include in any such registration statement all or any
part of the Registrable Securities held by it shall, within fifteen
(15) days after the above-described notice from the Company, so
notify the Company in writing. Such notice shall state the intended
method of disposition of the Registrable Securities by such Holder.
If a Holder decides not to include all of its Registrable
Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right
to include any Registrable Securities in any subsequent
registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all
upon the terms and conditions set forth herein.
(b) If the registration statement
under which the Company gives notice under this Section 3.2 is for
an underwritten offering, the Company shall so advise the Holders
of Registrable Securities as part of the written notice provided to
the Holders pursuant to Section 3.2(a). In such event, the right of
any such Holder to be included in a registration pursuant to this
Section 3.2 shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their
Registrable Securities through such underwriting shall enter into
an underwriting agreement in customary form with the u
