As filed with the Securities and Exchange Commission on July 9, 2001
Registration No. 333-59440
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CBRE Holding, Inc.
(Exact name of Registrant as specified in its charter)
----------------
Delaware 6500 94-3391143
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or
Organization) Classification Code Number) Identification Number)
909 Montgomery Street, Suite 400
San Francisco, CA 94133
(415) 434-1111
(Address, including zip code, and telephone number including area code, of
Registrant's principal executive offices)
----------------
Claus Moller, President
CBRE Holding, Inc.
909 Montgomery Street, Suite 400
San Francisco, CA 94133
(415) 434-1111
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
Walter Stafford, Esq. Murray Indick, Esq. Richard Capelouto, Esq.
CB Richard Ellis Services, Inc. BLUM Capital Partners, L.P. Simpson Thacher & Bartlett
200North Sepulveda Boulevard, Suite 300 909 Montgomery Street 3330 Hillview Avenue
El Segundo, California 90245 San Francisco, California 94133 Palo Alto, California 94304
(310) 563-8600 (415) 434-1111 (650) 251-5000
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in connection with
the offering described in this registration statement, all of which will be
paid by CBRE Holding, Inc. All amounts are estimates other than the
registration fee.
SEC registration fee............................................. $ 20,235
Accounting fees and expenses..................................... 500,000
Legal fees and expenses.......................................... 1,000,000
Printing and engraving expenses.................................. 500,000
Transfer agent fees and expenses................................. 10,000
Blue sky fees and expenses....................................... 7,000
Miscellaneous fees and expenses.................................. 62,765
----------
Total.......................................................... $2,100,000
==========
Item 14. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law, or the DGCL, as
amended, allows a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for monetary damages
for a breach of fiduciary duty as a director, except where the director
breached his duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that we may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of CBRE Holding) by reason of the fact that the
person is or was a director, officer, agent or employee of CBRE Holding or is
or was serving at our request as a director, officer, agent, or employee of
another corporation, partnership, joint venture, trust or other enterprise
against expenses, including attorneys' fees, judgment, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
the action, suit or proceeding. The power to indemnify applies (a) if the
person is successful on the merits or otherwise in defense of any action, suit
or proceeding or (b) if the person acted in good faith and in a manner he
reasonably believed to be in the best interest, or not opposed to the best
interest, of CBRE Holding, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
power to indemnify applies to actions brought by or in the right of
CBRE Holding as well, but only to the extent of defense expenses (including
attorneys' fees but excluding amounts paid in settlement) actually and
reasonably incurred and not to any satisfaction of judgment or settlement of
the claim itself, and with the further limitation that in these actions no
indemnification shall be made in the event of any adjudication of negligence or
misconduct in the performance of his duties to CBRE Holding, unless the court
believes that in light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for these actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to
these actions to be entered in the books containing the minutes of the meetings
of the board of directors at the time the action occurred or immediately after
the absent director receives notice of the unlawful acts.
II-1
Our restated certificate of incorporation includes a provision that limits
the personal liability of our directors for monetary damages for breach of
fiduciary duty as a director, except to the extent such limitation is not
permitted under the Delaware General Corporation Law.
Our restated certificate of incorporation provides that:
. we must indemnify our directors and officers to the fullest extent
permitted by Delaware law;
. we must indemnify our other employees and agents to the same extent that
we indemnified our directors and officers unless otherwise determined by
our board of directors; and
. we must advance expenses, as incurred, to our directors and executive
officers in connection with a legal proceeding to the fullest extent
permitted by Delaware Law.
The indemnification provisions contained in our certificate of incorporation
and bylaws are not exclusive of any other rights to which a person may be
entitled by law, agreement, vote of stockholders or disinterested directors or
otherwise. In addition, we maintain insurance on behalf of our directors and
executive officers insuring them against any liability asserted against them in
their capacities as directors or officers or arising out of this status.
Item 15. Recent Sales of Unregistered Securities.
Since inception, we have issued or will issue unregistered securities
without registration under the Securities Act of 1933, as amended as follows:
On February 22, 2001, we sold and issued 10 shares of our Class B common
stock to RCBA Strategic Partners, L.P. for an aggregate cash consideration of
$160.00. RCBA Strategic Partners will sign the securityholders' agreement
described in the prospectus that is included in this registration statement,
and these shares will become subject to the terms of such agreement, only upon
completion of the merger.
On June 7, 2001, we sold and issued 241,875 shares of our Class B common
stock to RCBA Strategic Partners, L.P. for an aggregate cash consideration of
$3,870,000. These shares were purchased in connection with the closing of the
sale of 11 1/4% senior subordinated notes by BLUM CB Corp. The proceeds from
the sale of those shares to RCBA Strategic were contributed to BLUM CB Corp.,
which deposited the proceeds in an escrow account for release when the merger
between BLUM CB Corp. and CB Richard Ellis Services is completed.
Immediately prior to the merger, the members of the buying group will
contribute 8,052,087 shares of CB Richard Ellis Services' common stock to us.
Each of the shares of CB Richard Ellis Services' common stock that the members
of the buying group contribute to us will be cancelled as a result of the
merger. As a result of the contributions of CB Richard Ellis Services' common
stock, we will issue an aggregate of 8,052,087 shares of our Class B common
stock to the members of the buying group.
Also pursuant to the contribution and voting agreement, immediately prior to
the merger, the BLUM Funds have agreed to purchase for cash a minimum of
2,553,879 shares of our Class B common stock at $16.00 per share. In addition,
the BLUM Funds have agreed to purchase for cash an additional number of shares
of our Class B common stock for $16.00 per share equal to (1) 3,236,639 shares
minus (2) the number of shares of our Class A common stock and stock fund units
subscribed for in the offering made by this prospectus plus (3) the aggregate
amount of full-recourse notes delivered by designated managers in the offerings
divided by $16.00. The number of shares purchased by the BLUM Funds will be
reduced by 241,885 shares, as a result of the prior purchases on February 22,
2001 and June 7, 2001 by RCBA Strategic as described above. After the offerings
are completed depending on the amount to which the offerings are fully
subscribed, the shares of our Class A and Class B common stock owned by the
buying group will be equal to between approximately 80% and 96% of our
outstanding Class A and Class B common stock, taken together.
II-2
Upon consummation of the merger, the warrants to acquire 364,884 shares of
CB Richard Ellis Services common stock owned by FSEP Equity Partners III, L.P.
and FSEP International will be cancelled and we will issue new warrants to each
of them to purchase up to an aggregate number of shares of our Class B common
stock equal to the number that represents the same percentage of the total
outstanding shares of our common stock immediately after consummation of the
merger as the warrants to acquire 364,884 shares of CB Richard Ellis Services
common stock entitled Freeman Spogli to acquire immediately prior to the
consummation of the merger. At any time on or after August 26, 2007, Freeman
Spogli may exercise some or all of these warrants. In addition, upon a
qualifying underwritten initial public offering, a change of control or merger,
in each case as defined in the warrant agreement, these warrants will convert
automatically.
The sales of the above securities will be deemed to be exempt from
registration in reliance on Section 4(2) of the Securities Act and/or
Regulation D promulgated under the Securities Act. These sales will be made
without general solicitation or advertising. The recipients in each such
transaction will represent their intentions to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends will be affixed to the share
certificates and warrants issued in such transactions. All recipients will have
adequate access, through their relationship with us, to information about us.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
Exhibit Description
------- -----------
2.1* Amended and Restated Agreement and Plan of Merger dated as of May 31,
2001 by and among CB Richard Ellis Services, Inc., CBRE Holding, Inc.
(the "Company" and formerly BLUM CB Holding Corp.), and BLUM CB Corp.
3.1(a)* Certificate of Incorporation of the Company
3.1(b)* Amendment to the Certificate of Incorporation of the Company, dated
as of March 26, 2001
3.1(c)* Amendment to the Certificate of Incorporation of the Company, dated
as of June 1, 2001
3.2* Restated Certificate of Incorporation of the Company
3.3* Bylaws of the Company
3.4* Restated Bylaws of the Company
4.1* Specimen Class A Common Stock Certificate
4.2(a)* Amended and Restated Contribution and Voting Agreement dated as of
May 31, 2001 by and among the Company, BLUM CB Corp., RCBA Strategic
Partners, L.P., FS Equity Partners III, L.P., FS Equity Partners
International, L.P., The Koll Holding Company, Donald Koll, Frederic
V. Malek, Raymond E. Wirta and Brett White
4.2(b)* Form of Securityholders' Agreement (Exhibit A to the Contribution and
Voting Agreement set forth in Exhibit 4.2(a) hereto)
4.2(c)* Form of Warrant Agreement (Exhibit B to the Contribution and Voting
Agreement set forth in Exhibit 4.2(a) hereto)
4.3* Form of Designated Manager Subscription Agreement
4.4* Form of Employee Subscription Agreement
4.5* Purchase Agreement between the Company and Credit Suisse First Boston
Corporation dated as of June 29, 2001
4.6* Form of Pledge Agreement
4.7* Indenture between CB Commercial Real Estate Services Group, Inc. and
State Street Bank and Trust Company of California, N.A., as Trustee,
dated as of May 26, 1998 for 8 7/8% Senior Subordinated Notes due
2008
II-3
Exhibit Description
------- -----------
4.8* First Supplemental Indenture between CB Richard Ellis Services, Inc.
and State Street Bank and Trust Company of California, N.A., as
Trustee, dated as of May 26, 1998 for 8 7/8% Senior Subordinated
Notes due 2008
4.9* Purchase Agreement, dated as of May 31, 2001, among the Company,
BLUM CB Corp. and Credit Suisse First Boston Corporation
4.10* Indenture, dated as of June 7, 2001, among the Company, BLUM CB
Corp. and State Street Bank and Trust Company of California, N.A.,
as Trustee, for 11 1/4% Senior Subordinated Notes due 2011
4.11* Registration Rights Agreement, dated as of May 31, 2001, among the
Company, BLUM CB Corp. and Credit Suisse First Boston Corporation
5.1* Form of Opinion of Simpson Thacher & Bartlett
5.2* Form of Opinion of O'Melveny & Myers LLP
10.1* CBRE Holding, Inc. 2001 Stock Incentive Plan
10.2* Form of Full-Recourse Note
10.3* Form of Stock Option Agreement
10.4 CB Richard Ellis Deferred Compensation Plan
10.5 CB Richard Ellis Deferred Compensation Plan Election Form
10.6 CB Richard Ellis Amended and Restated 401(k) Plan
10.7 CB Richard Ellis 401(k) Plan Instruction Form
10.8 Form of Employment Agreement
10.9 Intentionally Omitted
10.10* Employment Agreement dated as of May 23, 1997 between the Company
and James J. Didion
10.11(a)* CSFB Commitment Letter, dated as of February 23, 2001 by and between
Credit Suisse First Boston Corporation and the Company
10.11(b)* Amendment to the CSFB Commitment Letter dated as of May 31, 2001 by
and between Credit Suisse First Boston Corporation and the Company
10.12(a)* DLJ Commitment Letter, dated as of February 23, 2001 by and between
DLJ Investment Funding, Inc. and the Company
10.12(b)* Amendment to the DLJ Commitment Letter dated as of May 31, 2001 by
and between DLJ Investment Funding, Inc. and the Company
10.12(c)* Amendment to the DLJ Commitment Letter dated as of June 29, 2001 by
and between DLJ Investment Funding, Inc. and the Company
10.13 Form of Anti-Dilution Agreement between Credit Suisse First Boston
Corporation and the Company
12.1* Computation of Ratio of Earnings to Fixed Charges and Preferred
Dividends
21.1* Subsidiaries of the Company
23.1 Consent of Arthur Andersen LLP
23.2* Consent of Simpson Thacher & Bartlett (included in Exhibit 5.1)
23.3* Consent of O'Melveny & Myers LLP (included in Exhibit 5.2)
- --------
* Previously filed.
** To be filed by amendment.
(b) Schedules
i) Schedule II--Valuation and Qualifying Accounts
ii) Report of Independent Accountants on Financial Statement Schedule
II-4
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 14, or otherwise, the
registrant has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable. In the event that a claim for
indemnification by the registrant against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by itself is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No.3 to this Registration Statement on Form S-1
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of San Francisco, State of California, on July 9, 2001.
CBRE Holding, Inc.
/s/ Claus Moller
By: _________________________________
Claus Moller
President and Sole Director
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No.3 to this Registration Statement has been signed on July 9, 2001 by the
following persons in the capacities indicated.
Name Title
---- -----
/s/ Claus Moller President and Sole Director
___________________________________________ (Principal Executive Officer)
Claus Moller
/s/ Christian Puscasiu Treasurer (Principal Financial
___________________________________________ Officer)
Christian Puscasiu
II-6
EXHIBIT INDEX
Exhibit Description
------- -----------
10.4 CB Richard Ellis Deferred Compensation Plan
10.5 CB Richard Ellis Deferred Compensation Plan Election Form
10.6 CB Richard Ellis Amended and Restated 401(k) Plan
10.7 CB Richard Ellis 401(k) Plan Instruction Form
10.8 Form of Employment Agreement
10.13 Form of Anti-Dilution Agreement between Credit Suise First Boston
Corporation and the Company.
23.1 Consent of Arthur Andersen LLP