Exhibit 3.1(a)
RESTATED CERTIFICATE OF INCORPORATION
OF
CB RICHARD ELLIS SERVICES, INC.
* * * *
FIRST: The name of the corporation is CB Richard Ellis Services, Inc.
SECOND: The registered office of the corporation in the State of Delaware
is located at 2711 Centerville Road, Suite 400, City of Wilmington, County of
New Castle, Delaware 19808. The name of the registered agent of the corporation
at such address is Corporation Service Company.
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 as the same exists or may hereafter be amended.
FOURTH:
A. The total number of shares of all classes of capital stock that
the corporation is authorized to issue is 108,000,000, of which (1) 8,000,000
shall be Preferred Stock ("Preferred Stock"), 6,250,000 of which shall be
designated Series A Convertible Participating Preferred Stock ("Series A
Preferred Stock") and (2) 100,000,000 shall be Common Stock ("Common Stock").
Both the Preferred Stock and Common Stock shall have a par value of $.01 per
share.
B. The Common Stock shall consist of a single class of 100,000,000
shares, each of which shall be identical. There shall be no cumulative voting.
C. The Preferred Stock shall consist of a single class of 8,000,000
shares and may be issued from time to time in one or more series. The board of
directors of the corporation (the "Board of Directors") is expressly authorized
to provide for the issue of all or any of the Preferred Stock in one or more
series, to fix the designation and number of shares thereof and to determine or
alter for each such series, such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of such stock and
as may be permitted by the General Corporation Law of the State of Delaware. The
Board of Directors is also expressly authorized to increase or decrease (but not
below the number of shares of such series then outstanding, plus the number of
shares of such series issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by the corporation)
the number of shares of any series. If the number of shares of any such series
shall be so decreased, the shares constituting such decrease shall resume the
status
that they had prior to the adoption of the resolution originally fixing the
number of shares of such series.
The relative rights, preferences, privileges, limitations and
restrictions granted to or imposed on the Series A Preferred Stock or the
holders thereof are as follows:
1. Dividends.
a. Preference. The holders of the Series A Preferred Stock
shall be entitled to receive a dividend, prior and in preference
to any declaration or payment of any dividend (payable other than
in Common Stock or other securities and rights convertible into
or entitling the holder thereof to receive, directly or
indirectly, additional shares of Common Stock of the
corporation), payable out of funds legally available therefor
when, as and if declared by the Board of Directors, at the rate
of sixteen percent (16%) per annum (compounded quarterly
calculated on the basis of a 360 day year of twelve 30-day
months) of the Original Purchase Price.
All such dividends shall be cumulative. To the extent the
dividend provided by this Section 1.a. is not paid, such
dividends shall cumulate and must be paid before any other
dividend may be paid by the corporation. Dividends that are
declared and paid in an amount less than the full amount of
dividends accumulated on the Series A Preferred Stock shall be
applied to the earliest dividend which has not theretofore been
paid. The "Original Purchase Price" for each share of Series A
Preferred Stock shall be deemed to be $16.00 per share of Series
A Preferred Stock (as adjusted for stock splits, stock dividends,
combinations or similar events with respect to such shares).
b. Participation. In addition to the preference set forth
in subsection a. above, the holders of Series A Preferred Stock
shall be entitled to participate on an as-converted to Common
Stock basis in any dividends paid to the holders of Common Stock.
2. Liquidation Preference.
In the event of any liquidation, dissolution or winding up of the
corporation, either voluntary or involuntary, distributions to the
stockholders of the corporation shall be made in the following manner:
a. Series A Preferred Stock Liquidation Preference. The
holders of Series A Preferred Stock shall be entitled to receive,
prior and in preference to any distribution of any of the assets
or surplus funds of the corporation to the holders of Common
Stock of the corporation, an amount per share of Series A
Preferred Stock equal to the Original Purchase Price plus any
accrued but unpaid
dividends per share, whether or not declared and including
compounding (as adjusted for stock splits, stock dividends,
combinations or similar events with respect to such shares) (the
"Series A Liquidation Preference"). If, upon such liquidation,
dissolution or winding up of the corporation, the assets and
funds distributed are insufficient to permit the payment of the
Series A Liquidation Preference, the entire assets and funds
legally available for distribution shall be distributed ratably
among the holders of the Series A Preferred Stock.
b. Remaining Assets. After payment or setting apart of
payment of the Series A Liquidation Preference, the holders of
the Series A Preferred Stock and the holders of the Common Stock
shall be entitled to receive the remaining assets of the
corporation pro rata based on the number of shares of Common
Stock held by each such holder (assuming full conversion of all
the Series A Preferred Stock).
c. Reorganization or Merger.
(1) For the purposes of this Section 2, a liquidation,
dissolution or winding up of the corporation shall be deemed
to include (x) the acquisition of the corporation by another
entity by means of any transaction or series of related
transactions (including, without limitation, any sale of
capital stock, reorganization, recapitalization, merger or
consolidation but excluding any merger effected exclusively
for the purpose of changing the domicile of the corporation)
unless the corporation's stockholders of record as
constituted immediately prior to such acquisition or sale
will, immediately after such acquisition or sale (by virtue
of securities issued as consideration for the corporation's
acquisition or sale or otherwise) hold at least 50% of the
voting power of the surviving or acquiring entity or (y) a
sale of all or substantially all of the assets of the
corporation. No stockholder of the corporation shall enter
into any transaction or series of related transactions
described above unless the terms of such transaction or
transactions provide that the consideration to be paid to
the stockholders of the corporation is to be allocated in
accordance with the preferences and priorities set forth in
this Section 2.
(2) In any of such events, if the consideration
received by the corporation is other than cash, its value
will be deemed its fair market value. Any securities shall
be valued as follows:
(A) For securities not subject to investment letter or
other similar restrictions on free marketability:
(i) if traded on a securities exchange or the
Nasdaq Stock Market, the value shall be deemed to
be the average of the closing prices of the
securities on such exchange or market over the
30-day period ending three (3) days prior to the
closing of such transaction;
(ii) if actively traded over-the-counter, the
value shall be deemed to be the average of the
closing bid prices over the 30-day period ending
three (3) days prior to the closing of such
transaction; and
(iii) if there is no active public market, the
value shall be the fair market value thereof, as
determined in good faith by the Board of
Directors.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free
marketability shall take into account an appropriate
discount (as determined in good faith by the Board of
Directors) from the market value as determined pursuant to
(2)(A) above so as to reflect the approximate fair market
value thereof.
3. Voting.
Except as otherwise required by law or contract, the holder of each
share of Common Stock issued and outstanding shall have one vote and the
holder of each share of Preferred Stock shall be entitled to the number of
votes equal to the number of shares of Common Stock into which such share
of Preferred Stock could be converted at the record date for determination
of the stockholders entitled to vote on such matters, or, if no such record
date is established, at the date such vote is taken or any written consent
of stockholders is solicited, such votes to be counted together with all
other shares of the corporation having general voting power and not
separately as a class. Fractional votes by the holders of Preferred Stock
shall not, however, be permitted and any fractional voting rights shall
(after aggregating all shares into which shares of Preferred Stock held by
each holder could be converted) be rounded to the nearest whole number.
4. Conversion.
The holders of the Series A Preferred Stock have conversion rights as
follows:
a. Right to Convert. Each share of Series A Preferred Stock
shall be convertible, at the option of the holder thereof, at any time
after the date of issuance of such share at the office of the
corporation or any transfer agent for the Series A Preferred Stock,
into such number of fully paid and nonassessable shares of Common
Stock as is determined by dividing the Original Purchase Price by the
Conversion Price, determined as hereinafter provided, in effect at the
time of the conversion (the "Conversion Rate"). The Conversion Price
for the Series A Preferred Stock shall initially be $16.00 per share.
Such initial Conversion Price shall be subject to adjustment as
hereinafter provided.
b. Mechanics of Conversion. Before any holder of Series A
Preferred Stock shall be entitled to convert the same into full shares
of Common Stock and to receive certificates therefor, such holder
shall surrender the certificate or certificates therefor, duly
endorsed, at the office of the corporation or of any transfer agent
for the Series A Preferred Stock, and shall give written notice to the
corporation at such office that such holder elects to convert the
same; provided, however, that the holder may notify the corporation or
its transfer agent that such certificates have been lost, stolen or
destroyed and, in lieu of the surrender of such certificate or
certificates, execute an agreement satisfactory to the corporation to
indemnify the corporation from any loss incurred by it in connection
with such certificates. The corporation shall, as soon as practicable
after such delivery, or such agreement and indemnification in the case
of a lost certificate, issue and deliver at such office to such holder
of Series A Preferred Stock, a certificate or certificates for the
number of shares of Common Stock to which the holder shall be entitled
as aforesaid and a check payable to the holder in the amount of any
cash amounts payable as the result of a conversion into fractional
shares of Common Stock. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such
surrender of the shares of Series A Preferred Stock to be converted,
and the person or persons entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes
as the record holder or holders of such shares of Common Stock on such
date.
c. Fractional Shares. In lieu of any fractional shares to which
the holder of Series A Preferred Stock would otherwise be entitled,
the corporation shall pay cash equal to such fraction
multiplied by the then effective Conversion Price. Whether or not
fractional shares are issuable upon such conversion shall be
determined on the basis of the total number of shares of Series A
Preferred Stock of each holder at the time converting into Common
Stock and the number of shares of Common Stock issuable upon such
aggregate conversion.
d. Adjustment of Conversion Price. The Conversion Price of
Series A Preferred Stock shall be subject to adjustment from time to
time as follows:
(1) If the number of shares of Common Stock outstanding at
any time after the date hereof is increased by a stock dividend
payable in shares of Common Stock or by a subdivision or split-up
of shares of Common Stock, then, on the date such payment is made
or such change is effective, the Conversion Price of Series A
Preferred Stock shall be appropriately decreased so that the
number of shares of Common Stock issuable on conversion of any
shares of Series A Preferred Stock shall be increased in
proportion to such increase of outstanding shares.
(2) If the number of shares of Common Stock outstanding at
any time after the date hereof is decreased by a combination of
the outstanding shares of Common Stock, then, on the effective
date of such combination, the Conversion Price of Series A
Preferred Stock shall be appropriately increased so that the
number of shares of Common Stock issuable on conversion of any
shares of Series A Preferred Stock shall be decreased in
proportion to such decrease in outstanding shares.
(3) In case, at any time after the date hereof, of any
capital reorganization, or any reclassification of the stock of
the corporation (other than as a result of a stock dividend or
subdivision, split-up or combination of shares), or the
consolidation or merger of the corporation with or into another
person (other than a consolidation or merger in which the
corporation is the continuing entity and which does not result in
any change in the Common Stock), the shares of Series A Preferred
Stock shall, after such reorganization, reclassification,
consolidation, merger, sale or other disposition, be convertible
into the kind and number of shares of stock or other securities
or property of the corporation or otherwise to which such holder
would have been entitled if immediately prior to such
reorganization, reclassification, consolidation, merger, sale or
other
disposition such holder had converted its shares of Series A
Preferred Stock into Common Stock. The provisions of this
clause (3) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers,
sales or other dispositions.
e. Minimal Adjustments. All calculations under this
Section 4 shall be made to the nearest cent or to the nearest one
hundredth (1/100) of a share, as the case may be. No adjustment
in the Conversion Price for Series A Preferred Stock need be made
if such adjustment would result in a change in the Conversion
Price of less than $0.01.
f. No Impairment. The corporation will not through any
reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or
performed hereunder by the corporation, but will at all times in
good faith assist in the carrying out of all the provisions
hereunder and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the
holders of Series A Preferred Stock set forth hereunder against
impairment. This provision shall not restrict the corporation's
right to amend its Certificate of Incorporation with the
requisite stockholder consent.
g. Reservation of Stock Issuable Upon Conversion. The
corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock solely for the
purpose of effecting the conversion of the shares of Series A
Preferred Stock such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of
all outstanding shares of Series A Preferred Stock; and if at any
time the number of authorized but unissued shares of Common Stock
shall not be sufficient to effect the conversion of all then
outstanding shares of Series A Preferred Stock, the corporation
will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be
sufficient for such purpose.
h. Reissuance of Converted Shares. No shares of Series A
Preferred Stock which have been converted into Common Stock after
the original issuance thereof shall ever again be reissued and
all such shares so converted shall upon such conversion cease to
be a part of the authorized shares of the corporation.
5. Redemption.
The Series A Preferred Stock is not redeemable.
FIFTH: A director of the corporation shall not be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended. Any repeal or
modification of the foregoing sentence shall not adversely affect any right or
protection of a director of the corporation existing hereunder with respect to
any act or omission occurring prior to such repeal or modification.
SIXTH:
A. The corporation shall indemnify and hold harmless, to the fullest
extent permitted by applicable law as it presently exists or may hereafter be
amended, any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding") by reason of the fact that he,
or a person for whom he 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, enterprise or nonprofit entity,
including service with respect to employee benefit plans (an "Indemnitee"),
against all liability and loss suffered and expenses (including attorneys' fees)
reasonably incurred by such person. The corporation shall not be required to
indemnify and hold harmless a person in connection with a Proceeding (or part
thereof) initiated by such person unless the Proceeding (or the part thereof
initiated by such person) was authorized by the Board of Directors.
B. The right to indemnification conferred by this Article SIXTH
shall be presumed to have been relied upon by the Indemnitee and shall be
enforceable as a contract right. The corporation may enter into contracts to
provide individual Indemnitees with specific rights of indemnification to the
fullest extent permitted by applicable law and may create trust funds, grant
security interests, obtain letters of credit or use other means to ensure the
payment of such amounts as may be necessary to effect the rights provided in
this Article SIXTH or in any such contract.
C. Except for any Proceeding described in the last sentence of
Section A of Article SIXTH, upon making a request for indemnification, the
Indemnitee shall be presumed to be entitled to indemnification under this
Article SIXTH and the corporation shall have the burden of proof to overcome
that presumption in reaching any contrary determination. Such indemnification
shall include the right to receive payment in advance of any reasonable expenses
incurred by the Indemnitee in connection with any Proceeding (other than a
Proceeding described in the last sentence of Section A of Article SIXTH)
consistent with the provisions of applicable law.
D. Any repeal or modification of the foregoing provisions of this
Article SIXTH shall not adversely affect any right or protection of any
Indemnitee existing at the time of such repeal or modification.
SEVENTH: The Board of Directors is authorized to adopt, amend or repeal the
By-laws of the corporation, without any action on the part of the stockholders,
solely by the affirmative vote of at least a majority of the directors of the
corporation then in office.
By: /s/ Walter V. Stafford
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Walter V. Stafford