Exhibit 3.3
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
CERTIFICATE OF INCORPORATION OF
FORTEGRA FINANCIAL CORPORATION
The present name of the corporation is Fortegra Financial Corporation (the “Corporation”). The Corporation was incorporated under the name “Fortegra Financial (Delaware) Corporation” by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on November 23, 2010, amended and restated pursuant to an Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on November 23, 2010. The name of the Corporation was changed to “Fortegra Financial Corporation” pursuant to a Certificate of Ownership and Merger filed with the Secretary of State of the State of Delaware on November 23, 2010. A Second Amended and Restated Charter was filed with the Secretary of State of the State of Delaware on November 30, 2010. In accordance with Sections 242 and 245 of the DGCL, the Second Amended and Restated Certificate of Incorporation of the Corporation, is hereby amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation is: Fortegra Financial Corporation.
SECOND: The address of the registered office of the Corporation in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County. The name of the registered agent of the Corporation in the State of Delaware at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL, as from time to time amended.
FOURTH: (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is 160,000,000 shares, consisting of (i) 150,000,000 shares of Common Stock, par value $0.01 per share (“Common Stock”) and (ii) 10,000,000 shares of one or more series of Preferred Stock, par value $0.01 per share (“Preferred Stock”), including (iii) 7,840 shares of 8.25% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”), (iv) 2,450 shares of Floating Rate Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock”) and (v) 2,000 shares of 8.25% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series C Preferred Stock”).
(b) Except as otherwise provided by law, the shares of stock of the Corporation, regardless of class, may be issued by the Corporation from time to time in such amounts, for such consideration and for such corporate purposes as the Board of Directors of the Corporation (the “Board of Directors”) may from time to time determine.
(c) Shares of Preferred Stock may be issued from time to time in one or more series of any number of shares as may be determined from time to time by the Board of Directors, provided that the aggregate number of shares issued and not cancelled of any and all such series shall not exceed the total number of shares of Preferred Stock authorized by this Certificate of Incorporation. Each series of Preferred Stock shall be distinctly designated. The voting powers,
if any, of each such series and the preferences and relative, participating, optional and other special rights of each such series and the qualifications, limitations and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and the Board of Directors is hereby expressly granted authority to fix, in the resolution or resolutions providing for the issue of a particular series of Preferred Stock, the voting powers, if any, of each such series and the designations, preferences and relative, participating, optional and other special rights of each such series and the qualifications, limitations and restrictions thereof to the full extent now or hereafter permitted by this Certificate of Incorporation and the laws of the State of Delaware. Shares of Preferred Stock, regardless of series, that are converted into other securities or other consideration or otherwise acquired by the Corporation shall be retired and cancelled, and the Corporation shall take all such actions as are necessary to cause such shares to have the status of authorized but unissued shares of Preferred Stock, without designation as to series, and the Company shall have the right to reissue such shares.
(d) Rights, Preferences and Restrictions of Series A Preferred Stock
1. Reserved.
2. Rank. The Series A Preferred Stock will, with respect to dividends and rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, rank senior to all classes or series Common Stock and to all classes or series of equity securities of the Corporation now or hereafter authorized, issued or outstanding, other than any class or series of equity securities of the Corporation expressly designated as ranking on a parity with or senior to the Series A Preferred Stock as to dividends or rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Corporation or both. For purposes of this Third Amended and Restated Certificate of Incorporation, the term “Parity Preferred Stock” shall be used to refer to any class or series of equity securities of the Corporation now or hereafter authorized, issued or outstanding expressly designated by the Corporation to rank on a parity with Series A Preferred Stock with respect to dividends or rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Corporation or both, as the context may require, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share shall be different from those of the Series A Preferred Stock and includes the Series B Preferred Stock and the Series C Preferred Stock. The term “equity securities” does not include debt securities, which will rank senior to the Series A Preferred Stock prior to the conversion.
3. Dividends.
3.1 Payment of Dividends. Subject to the rights of holders of Parity Preferred Stock as to the payment of dividends and holders of equity securities issued after the date hereof in accordance herewith ranking senior to the Series A Preferred Stock as to the payment of dividends, holders of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors of the Corporation, out of funds legally available for the payment of
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dividends, cumulative cash dividends at the rate per annum of 8.25% of the Liquidation Preference (as defined herein) per share of Series A Preferred Stock. Such dividends shall be cumulative, shall accrue from the original date of issuance and will be payable in cash (A) quarterly (such quarterly periods for purposes of payment and accrual will be the quarterly periods ending on the dates specified in this sentence) in arrears, on or before March 31, June 30, September 30 and December 31 of each year commencing on June 30, 2005 and, (B) in the event of a redemption, on the redemption date (each a “Preferred Stock Dividend Payment Date”). The amount of the dividend payable for any period will be computed on the basis of a 360-day year of twelve 30-day months and for any period shorter than a full quarterly period for which dividends are computed, the amount of the dividend payable will be computed on the basis of the ratio of the actual number of days elapsed in such period to ninety (90) days. If any date on which dividends are to be made on the Series A Preferred Stock is not a Business Day (as defined herein), then payment of the dividend to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. Dividends on the Series A Preferred Stock will be made to the holders of record of the Series A Preferred Stock on the first day of the month in which the Preferred Stock Dividend Payment Date occurs, or on such other record dates to be fixed by the Board of Directors of the Corporation, which record dates shall be not less than ten (10) days and not more than thirty (30) Business Days prior to the relevant Preferred Stock Dividend Payment Date (each a “Dividend Record Date”)
(a) The term “Business Day” shall mean each day, other than a Saturday, a Sunday, which is not a day on which banking institutions in New York, New York are authorized or required by law, regulation or executive order to close.
3.2 Limitation on Dividends. No dividend on the Series A Preferred Stock shall be declared or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting apart for payment shall be restricted or prohibited by law. Nothing in thisSection 3.2 shall be deemed to modify or in any manner limit the provisions ofSection 3.3 andSection 3.4.
3.3 Dividends Cumulative. Dividends on the Series A Preferred Stock will accrue whether or not the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such
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dividends and whether or not such dividends are authorized or declared. Accrued but unpaid dividends on the Series A Preferred Stock will accumulate as of the Preferred Stock Dividend Payment Date on which they first become payable. Dividends on account of arrears for any past dividend periods may be declared and paid at any time, without reference to a regular Preferred Stock Dividend Payment Date to holders of record of the Series A Preferred Stock on the record date fixed by the Board of Directors which date shall be not less than ten (10) days and not more than thirty (30) Business Days prior to the payment date. Accumulated and unpaid dividends will not bear interest.
3.4 Priority as to Dividends.
(a) So long as any Series A Preferred Stock is outstanding, no dividend of cash or other property shall be authorized, declared, paid or set apart for payment on or with respect to any class or series of Common Stock or any class or series of other stock of the Corporation ranking junior to the Series A Preferred Stock as to the payment of dividends (such Common Stock or other junior stock, collectively, “Junior Stock”), nor shall any cash or other property be set aside for or applied to the purchase, redemption or other acquisition for consideration of any Series A Preferred Stock, any Parity Preferred Stock with respect to dividends or any Junior Stock, unless, in each case, all dividends accumulated on all Series A Preferred Stock and all classes and series of outstanding Parity Preferred Stock with respect to dividends have been paid in full. The foregoing sentence will not prohibit (i) dividends payable solely in shares of Junior Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock into Junior Stock, (iii) purchases or other acquisitions of Junior Stock for purposes of any employee or director incentive or benefit plan of the Corporation or any subsidiary, and (iv) purchases or acquisitions of shares of Series A Preferred Stock pursuant to a purchase or exchange offer that is made on the same terms to all holders of Series A Preferred Stock.
(b) So long as dividends have not been paid in full (or a sum sufficient for such full payment is not irrevocably deposited in trust for payment) upon the Series A Preferred Stock, all dividends authorized and declared on the Series A Preferred Stock and all classes or series of outstanding Parity Preferred Stock with respect to dividends shall be authorized and declared so that the amount of dividends authorized and declared per share of Series A Preferred Stock and such other classes or series of Parity Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series A Preferred Stock and such other classes or series of Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such class or series of Parity Preferred Stock does not have cumulative dividend rights) bear to each other.
3.5 No Further Rights. Holders of Series A Preferred Stock shall not be entitled to any dividends, whether payable in cash, other property or otherwise, in excess of the full cumulative dividends described herein.
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4. Liquidation Preference.
4.1 Payment of Liquidating Distributions. Subject to the rights of holders of Parity Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation and subject to equity securities ranking senior to the Series A Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of Series A Preferred Stock shall be entitled to receive out of the assets of the Corporation legally available for distribution or the proceeds thereof, after payment or provision for debts and other liabilities of the Corporation, but before any payment or distributions shall be made to holders of Common Stock or any other class or series of shares of the Corporation that ranks junior to the Series A Preferred Stock as to rights upon liquidation, dissolution or winding-up of the Corporation, an amount equal to the sum of (i) a liquidation preference of $1,000 per share of Series A Preferred Stock (the “Liquidation Preference”), and (ii) an amount equal to any accumulated and unpaid dividends thereon, whether or not declared, to the date of payment. In the event that, upon such voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, all payments of liquidating distributions on the Series A Preferred Stock and such Parity Preferred Stock shall be paid so that the payments on the Series A Preferred Stock and such Parity Preferred Stock shall in all cases bear to each other the same ratio that the respective rights of the Series A Preferred Stock and such other Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such Parity Preferred Stock does not have cumulative dividend rights) upon liquidation, dissolution or winding-up of the Corporation bear to each other.
4.2 Notice. Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than thirty (30) and not more than sixty (60) days prior to the payment date stated therein, to each record holder of the Series A Preferred Stock at the respective addresses of such holders as the same shall appear on the share transfer records of the Corporation.
4.3 No Further Rights. After payment of the full amount of the liquidating distributions to which they are entitled; the holders of Series A Preferred Stock will have no right or claim to any of the remaining assets of the Corporation.
4.4 Consolidation, Merger or Certain Other Transactions. The voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the assets of the Corporation to, or the consolidation or merger or other business combination of the Corporation with or into, any corporation or other entity (or of any corporation
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or other entity with or into the Corporation) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Corporation.
4.5 Permissible Distributions. In determining whether a distribution (other than upon voluntary liquidation) by distribution, redemption or other acquisition of shares of stock of the Corporation or otherwise is permitted under the Act, no effect shall be given to amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of shares of stock of the Corporation whose preferential rights upon dissolution are superior to those receiving the distribution.
5. Redemption at Election of Holders on Change of Control.
5.1 Change of Control. If a Change of Control (as defined herein) occurs, any holder of Series A Preferred Stock may require that the Corporation redeem all or any portion of such holder’s Series A Preferred Stock, subject to the terms and conditions set forth herein, on the Change of Control Redemption Date (as defined herein) at a redemption price, payable in cash, equal to (i) the following percentage of the Liquidation Preference per share of Series A Preferred Stock (the “Change in Control Redemption Price”) if redeemed during the year indicated:
Change in Control | ||||
Year | Redemption Price | |||
2005 through 2010 | 103 | % | ||
2011 | 102 | % | ||
2012 | 101 | % | ||
2013 and after | 100 | % |
plus (ii) accumulated and unpaid dividends, whether or not declared, to the Change of Control Redemption Date.
(a) A “Change in Control” shall be deemed to have occurred at such time as any of the following events shall occur:
(i) Any Person (for purposes of thisSubsection 5.1(a) only, the term “Person” shall mean a “person” as defined in or for purposes of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”), or any successor provision to either of the foregoing, including any “group” acting for the purposes of acquiring, holding or disposing of securities within the meaning of Rule 13D-5(b)(1) under the Exchange Act), together with its Affiliates and Associates (as defined herein), has become the beneficial owner (as the term “beneficial owner” is defined in Rule 13d-3 under the Exchange Act, or any successor provision) of either (A) 50% or more of the shares of Common Stock of the Corporation then outstanding of (B) 50% or more
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of the voting power of the voting stock of the Corporation then outstanding and entitled to vote generally in the election of directors (“Voting Stock”); provided, however, that for purposes of thisSubsection 5.1(a), a Person shall not be deemed the beneficial owner of (1) any securities tendered pursuant to a tender offer or exchange offer made by or on behalf of such Person, or its Affiliates or Associates, until such tendered securities are accepted for purchase or exchange thereunder, or (2) any securities in respect of which beneficial ownership by such Person arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation that is made pursuant to, and accordance with, any applicable requirements of the Exchange Act.
(ii) There shall be consummated any sale, transfer, lease or conveyance of all or substantially all of the properties and assets of the Corporation to any other person or persons (other than an entity at least a majority of the combined voting power of the Voting Stock of which is owned directly or indirectly by the Corporation).
(iii) There shall be consummated any consolidation of the Corporation with or merger of the Corporation with or into any other person (whether or not affiliated with the Corporation) in which the Corporation is not the sole surviving or continuing corporation or pursuant to which the shares of Common Stock outstanding immediately prior to the consummation of such consolidation or merger are converted into cash, securities or other property, other than a consolidation or merger in which the holders of shares of Common Stock receive, directly or indirectly, (A) 51% or more of the common stock of the sole surviving or continuing corporation outstanding immediately following the consummation of such consolidation or merger and (B) securities representing 51% or more of the combined voting power of the Voting Stock of the sole surviving or continuing corporation outstanding immediately following the consummation of such consolidation or merger.
(b) “Affiliate” means any person consoling, controlled by or under common control with the person in question.
(c) “Associate” shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange Act, as in effect on the date hereof.
5.2 Notice by Corporation on Change of Control. Within fifteen (15) Business Days after the occurrence of a Change in Control, the Corporation shall mail a written notice of Change in Control by first-class mail, postage prepaid, to each holder of record of Series A Preferred Stock. The notice shall include or transmit a form of Change in Control Redemption Notice (as described below) to be completed by the holder and shall state: (i) the events causing the Change in Control and the date of such Change in Control; (ii) the date by which the Change in Control Redemption Notice pursuant to thisSection 5 must be given; (iii) the redemption date (the “Change in Control Redemption Date”), which shall be a date not later than sixty (60) Business Days after the Change in Control; (iv) the Change
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in Control Redemption Price; (v) that dividends on the Series A Preferred Stock to be redeemed will cease to accumulate on the Change in Control Redemption Date; (vi) that the Change in Control Redemption Price and any accumulated and unpaid dividends for any shares of Series A Preferred Stock as to which a Change in Control Redemption Notice has been duly given and not withdrawn will be paid promptly on the later of the Change in Control Redemption Date or the time of surrender of the certificate(s) for such shares; (vii) the procedures the holder must follow to exercise rights under thisSection 5 and a brief description of those rights; (viii) the place where the shares of Series A Preferred Stock are to be surrendered for payment of the Change in Control Redemption Price; and (ix) the procedures for withdrawing a Change in Control Redemption Notice.
5.3 Change in Control Redemption Notice by Holder. A holder may exercise its rights specified in thisSection 5 upon delivery of a written notice of redemption (a “Change in Control Redemption Notice”) to the Corporation at any time prior to the close of business on the Second Business Day prior to the Change in Control Redemption Date, stating: (i) the certificate number or numbers of the shares which the holder will deliver to be redeemed; (ii) the portion of the holder’s Series A Preferred Stock which the holder will deliver to be redeemed; (iii) the portion of the holder’s Series A Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iv) that such shares shall be redeemed on the Change in Control Redemption Date.
5.4 Withdrawal of Change in Control Redemption Notice. A Change in Control Redemption Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Change in Control Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Change in Control Redemption Notice (which must be $1,000 or an integral multiple thereof) and which have been or will be surrender for redemption.
5.5 Deposit of Change in Control Redemption Price. Prior to 12:00 noon, New York, New York time, on the Change in Control Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the Series A Preferred Stock being redeemed, funds sufficient to pay the aggregate Change in Control Redemption Price of all the Shares of Series A Preferred Stock as to which a Change in Control Redemption Notice has been delivered and not withdrawn, together with any accumulated and unpaid dividends thereon to the Change in Control Redemption Date, and shall give irrevocable instructions and authority to pay such amount on such shares, upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of the Change in Control.
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6. Redemption at Election of Survivor Representative on Death.
6.1 Redemption Rights of Survivor Representative. Any Survivor Representative (as defined below) may require once, but not from time to time, that the Corporation redeem, on the terms and conditions set forth herein, all or any portion of the Series A Preferred Stock in which a Deceased Beneficial Owner (as defined below) had a beneficial interest immediately before such Deceased Beneficial Owner’s death.
(a) “Survivor Representative” means the person with authority on behalf of the Deceased Beneficial Owner under the laws of the appropriate jurisdiction and includes, without limitation, the personal representative, executor, surviving joint tenant or surviving tenant by the entirety of the Deceased Beneficial Owner.
(b) “Deceased Beneficial Owner” of Series A Preferred Stock means any of the following holders of record of Series A Preferred Stock, upon the death of a person in question:
(i) A natural person;
(ii) A natural person who holds Series A Preferred Stock as a joint tenant or tenant by the entirety;
(iii) A natural person who holds Series A Preferred Stock as a tenant in common with such person’s spouse;
(iv) A natural person who holds Series A Preferred Stock as a tenant in common with a person other than a spouse, but in such case, only the pro rata portion of the Series A Preferred Stock in which the decedent had a beneficial interest immediately before his or her death will be eligible for redemption hereunder;
(v) A natural person who is the beneficiary of a trust that is a holder of record of Series A Preferred Stock, but only the portion of the Series A Preferred Stock attributable to such decedent’s beneficial interest in the trust will be eligible for redemption unless the trust interest is held as a joint tenant, as a tenant by the entirety, or as a tenant in common with the decedent’s spouse, in which case the Series A Preferred Stock attributable to the entire beneficial interest held by such tenancy will be eligible for redemption hereunder; and
(vi) Any other natural person who, during his or her lifetime, was entitled to at least 95% of the beneficial interest of the Series Preferred Stock held of record by an entity, in which case all the Series A Preferred Stock held by such entity will be eligible for redemption hereunder.
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For purposes hereof, beneficial interest means the right to receive the economic benefits with respect to Series A Preferred Stock in question.
6.2 Redemption Rights of Survivor Representative. Any Survivor Representative of a Deceased Beneficial Owner may require once, but not from time to time, that the Corporation redeem all or any portion of the Deceased Beneficial Owner’s beneficial interest in Series A Preferred Stock eligible for redemption hereunder on the first Business Day of January of any year that falls at least sixty (60) days after the date of death of the Deceased Beneficial Owner (each a “Redemption Date”), subject to the terms and conditions set forth herein, at a redemption price, payable in cash, equal to (i) the Liquidation Preference per share of Series A Preferred Stock redeemed, plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption; provided, however, that the Corporation shall not be required to redeem on any Redemption Date shares of Series A Preferred Stock and Series B Preferred Stock having an aggregate liquidation preference of more than 25% of the aggregate liquidation preference of the total number of shares of Series A Preferred Stock and Series B Preferred Stock outstanding on September 30, 2005 (the “25% Limit”, and if the Corporation elects to apply the 25% Limit, the shares to be redeemed on that Redemption Date shall be accepted in the order in which the Corporation received proper and complete redemption notices from the Survivor Representatives pursuant toSection 6.3 and pursuant to the corresponding provisions of the Series B Preferred Stock, to the extent such shares do not exceed the 25% Limit, and the remainder of such shares shall be deferred for redemption on the next Redemption Date(s), in the order in which so received (“First-Come, First-Served Basis”)
6.3 Procedure for Redemption at Option of Survivor Representative. If a Survivor Representative wishes to require the Corporation to redeem all or any portion of the Series A Preferred Stock of the Survivor Representative’s Deceased Beneficial Owner eligible for redemption pursuant to thisSection 6, the Survivor Representative shall deliver written notice of a redemption (a “Redemption on Death Notice”) to the Corporation at any time following the Deceased Beneficial Owner’s death, but not later than November 15 for a Redemption Date on the first Business Day of the following January, stating (i) the certificate number or numbers of the shares which the Survivor Representative wishes to deliver to be redeemed on the next Redemption Date; (ii) the portion of the holders Series A Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the next Redemption Date on which such shares are eligible for redemption. The Survivor Representative’s Redemption on Death Notice must be accompanied by appropriate evidence that (a) the Deceased Beneficial Owner has died, (b) the Survivor Representative has authority to act on behalf of the Deceased Beneficial Owner, and (c) if the Deceased Beneficial Owner was not the holder of record of the Series A Preferred Stock to be redeemed, that the Deceased Beneficial Owner had a beneficial interest in the such Series A Preferred Stock immediately prior to his or her death and the nature and amount of such beneficial interest, e.g., as a
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trust beneficiary entitled to 50% principal of the trust. The Corporation may defer the redemption of shares that are the subject of a proper Redemption on Death Notice received after November 15 of any year until the second Redemption Date thereafter, on a First-Come, First-Served Basis.
6.4 Notice of Acceptance by Corporation. If the Corporation receives a Redemption on a Death Notice delivered pursuant toSubsection 6.2, the Corporation shall send a notice no later than thirty (30) days after the date of receipt to the Survivor Representative who sent the Redemption on Death Notice stating: (i) whether or not such holder’s Redemption on Death Notice met the requirements ofSubsection 6.3; (ii) if the Redemption on Death Notice and all supporting information was duly delivered in proper form, the number of shares to be redeemed from the holder in question on the applicable Redemption Date; and (iii) the place where the shares are to be surrendered for payment of the redemption price. The Corporation may request such additional written information as it deems reasonably necessary to establish the eligibility of any particular shares of Series A Preferred Stock for redemption under thisSection 6, including a medallion signature guarantee of the Survivor Representative’s signature.
6.5 Withdrawal of Redemption on Death Notice. A Redemption on Death Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the Shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Redemption on Death Notice (which must be $1,000 or an integral multiple thereof), which have been accepted for redemption by the Corporation and which have been or will be delivered for redemption. Unless the withdrawal is a complete withdrawal, the Survivor Representative shall not be entitled to submit a Redemption on Death Notice for a subsequent Redemption Date.
6.6 Deposit of Redemption Price. Prior to 12:00 noon, New York, New York time, on the Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the shares being redeemed, funds sufficient to pay the aggregate redemption price of all the shares of Series A Preferred Stock as to which a Redemption on Death Notice has been delivered and accepted by the Corporation and not withdrawn by the holder, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
7. Redemption at Election of Holders Other Than on Change of Control.
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7.1 Redemption Rights of Holders. Any holder may require that the Corporation redeem all or any portion of such holders Series A Preferred Stock on the first Business Day of January of any year beginning January 2015 (each a “Redemption Date”), subject to the terms and conditions set forth herein, at a redemption price, payable in cash, equal to (i) the Liquidation Preference per share of Series A Preferred Stock redeemed, plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption; provided, however, that the Corporation shall not be required to redeem on any Redemption Date shares of Series A Preferred Stock and Series B Preferred Stock having an aggregate liquidation preference that exceeds the 25% Limit (Including shares of Deceased Beneficial Owners), and if the Corporation elects to apply the 25% Limit, the shares selected to be redeemed on that Redemption Date shall be the shares duly submitted for redemption by Survivor Representative, on a First-Come, First Served Basis, and any remainder submitted for redemption by persons other than Survivor Representatives shall be prorated based on the relative liquidation preferences of the total number of shares that are the subject of proper redemption notices for that Redemption Date pursuant toSubsection 7.2 and pursuant to the corresponding provisions of the Series B Preferred Stock.
7.2 Procedures for Redemption at Option of Holder Other than on Change of Control. If a holder of Series A Preferred Stock wishes to require the Corporation to redeem all or any portion of such holder’s shares pursuant to thisSection 7, the holder shall deliver written notice of redemption (a “Redemption Notice”) to the Corporation at any time during the month of November of any year beginning November 2014, stating (i) the certificate number or numbers of the shares which the holder wishes to deliver to the redeemed on the next Redemption Date; (ii) the portion of the holder’s Series A Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the Redemption Date.
7.3 Notice of Acceptance by Corporation. If the Corporation receives any Redemption Notices during the month of November delivered pursuant toSubsection 7.2, the Corporation shall send a notice no later than the fifteenth day of the following month to each holder who had submitted a Redemption Notice stating: (i) the aggregate number of shares of Series A Preferred Stock and Series B Preferred Stock to be redeemed on the next Redemption Date; (ii) whether or not such holder’s Redemption Notice met the requirements ofSubsection 7.2; (iii) if the Redemption Notice was duly delivered in proper form, the number of shares to be redeemed from the holder in question on the applicable Redemption Date; and (iv) the place where the shares are to be surrendered for payment of the redemption price. If the Corporation elects to prorate the shares it accepts for redemption because of the 25% Limit, a holder whose shares were so prorated must submit a new Redemption Notice for any subsequent Redemption Date on which the holder wishes to redeem shares pursuant to thisSection 7.
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7.4 Withdrawal of Redemption Notice. A Redemption Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the Shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Redemption Notice (which must be $1,000 or an integral multiple thereof), which have been accepted for redemption by the Corporation and which have been or will be delivered for redemption.
7.5 Deposit of Redemption Price. Prior to 12:00 noon, New York, New York time, on the Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the shares being redeemed, funds sufficient to pay the aggregate redemption price of all the shares of Series A Preferred Stock as to which a Redemption Notice has been delivered and accepted by the Corporation and not withdrawn by the holder, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
8. Optional Redemption by the Corporation.
8.1 Right of Optional Redemption. The Series A Preferred Stock may not be redeemed at the option of the Corporation prior to January 1, 2010. On or after such date, the Corporation shall have the right to redeem the Series A Preferred Stock, in whole or in part, at any time or from time to time, upon not less than thirty (30) nor more than sixty (60) days’ written notice, at a redemption price, payable in cash, equal to (i) the following percentage of the Liquidation Preference per share of Series A Preferred Stock redeemed (the “Call Price”) if redeemed during the year indicated:
Year | Redemption Price | |||
2010 | 103 | % | ||
2011 | 102 | % | ||
2012 | 101 | % | ||
2013 and after | 100 | % |
plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption. If fewer than all of the outstanding shares of Series A Preferred Stock are to be redeemed, the shares of Series A Preferred Stock to be redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares).
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8.2 Limitation on Optional Redemption by Corporation. The Corporation may not redeem fewer than all of the outstanding shares of Series A Preferred Stock pursuant to thisSection 8 unless all accumulated and unpaid dividends have been paid on all Series A Preferred Stock for all quarterly dividend periods terminating on or prior to the date of redemption;provided;however, that the foregoing shall not prevent the purchase or acquisition of shares of Series A Preferred Stock pursuant to purchase or exchange offer that is made on the same terms to all holders of Series A Preferred Stock.
8.3 Procedures for Optional Redemption by Corporation.
8.3.1 Notice of redemption will be mailed by the Corporation, by first class mail, postage prepaid, not less than thirty (30) nor more than sixty (60) days prior to the redemption date, addressed to the holders of record of the Series A Preferred Stock to be redeemed at their respective addresses as they appear on the transfer records of the Corporation. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any Series A Preferred Stock except as to the holders to whom such notice was defective or not given. in addition to any information required by law, each such notice shall state: (i) the redemption date; (ii) the Call Price; (iii) the number of shares of Series A Preferred Stock to be redeemed; (iv) the place where such shares of Series A Preferred Stock are to be surrendered for payment of the Call Price; (v) that dividends on the Series A Preferred Stock to be redeemed will cease to accumulate on such redemption date; and (vi) that payment of the Call Price and any accumulated and unpaid dividends will be made upon presentation and surrender of such Series A Preferred Stock at the place designated by the Corporation. If fewer than all of the shares of Series A Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series A Preferred Stock held by such holder to be redeemed.
8.4 Deposit of Call Price. Prior to 12:00 noon, New York, New York time, on the redemption date, the Corporation shall deposit, irrevocably in trust for the benefit of the Series A Preferred Stock being redeemed, funds sufficient to pay the aggregate Call Price of all the shares of Series A Preferred Stock selected for redemption, together with any accumulated and unpaid dividends thereon to the Redemption Date, and shall give irrevocable instructions and authority to pay such amount on such shares, upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of redemption.
9. Mandatory Redemption by the Corporation upon Maturity. The Corporation shall redeem any shares of Series A Preferred Stock that remain outstanding on December 31, 2034 (the “Final Redemption Date”) at a redemption price, payable in cash, equal to (i) the Liquidation Preference per share of Series A Preferred Stock, plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption. Notice of redemption will be
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mailed by the Corporation, by first class mail, postage prepaid, not less than 30 nor more than 60 days prior to the Final Redemption Date, addressed to the holders of record of the Series A Preferred Stock. Each such notice shall state: (i) the Final Redemption Date; (ii) the redemption price; (iii) the place where shares of Series A Preferred Stock are to be surrendered for payment of the redemption price; (iv) that dividends on the Series A Preferred Stock will cease to accumulate on the Final Redemption Date; and (v) that payment of the redemption price and any accumulated and unpaid dividends will be made upon presentation and surrender of the Series A Preferred Stock to the place designated by the Corporation.
9.1 Deposit of Redemption Price on Final Redemption Date. Prior to 12:00 noon, New York, New York time, on the Final Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the remaining Series A Preferred Stock, funds sufficient to pay the aggregate redemption price thereof, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of the Final Redemption Date.
10. Provisions Applicable to All or Certain Redemptions of Preferred Series A Stock.
10.1 Unlawful Redemption. Nothing herein shall be construed to require the Corporation to redeem shares of Series A Preferred Stock pursuant to any provision of this Third Amended and Restated Certificate of Incorporation if such redemption would violate the Act, and to the extent that there are not sufficient funds available for a lawful redemption, the shares to be redeemed shall be prorated among the holders thereof based on the relative liquidation preferences of the total number of shares that would otherwise be required to be redeemed, and the remainder of such shares shall be redeemed pro rata among such holders when and as funds become available out of which redemption payments may lawfully be made.
10.2 Timing. If any date fixed for redemption of Series A Preferred Stock pursuant toSections 5,6,7,8 or9 is not a Business Day, then payment of the redemption price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. On and after the date of redemption, dividends will case to accumulate on the Series A Preferred Stock or portions thereof called for redemption, unless the Corporation defaults in the payment of the redemption price. If payment of the redemption price, including any accumulated and unpaid dividends in respect of the Series A Preferred Stock being redeemed, is
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improperly withheld or refused and not paid by the Corporation, dividends on such Series A preferred Stock will continue to accumulate from the original redemption date to the date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the redemption price and any accumulated and unpaid dividends.
10.3 Partial Redemption. If fewer than all shares of Series A Preferred Stock evidenced by any certificate are being redeemed pursuant to this Third Amended and Restated Certificate of Incorporation, a new certificate shall be issued upon surrender of the certificate evidencing all such Series A Preferred Stock to evidence the unredeemed Series A Preferred Stock, without cost to the holder thereof.
10.4 Effect of Deposit. On the applicable redemption date, if the Corporation shall have deposited funds in trust pursuant toSubsections 5.5,6.6,7.5,8.4 or9.1, the shares being redeemed out of such funds shall be deemed no longer outstanding from and after the applicable redemption date and shall thereafter represent only the right to receive the applicable redemption price, together with any accumulated and unpaid dividends to the redemption date, without interest, upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
10.5 Status of Redeemed Stock. Any Series A Preferred Stock that shall at any time have been redeemed shall after such redemption, have the status of authorized but unissued Preferred Stock, without designation as to class or series until such shares are once more designated as part of a particular class or series by the Board of Directors.
10.6 Return of Funds Deposited in Trust. Subject to applicable escheat laws, if funds deposited by the Corporation in trust pursuant toSubsections 5.5,6.6,7.5,8.4 or9.1 remain unclaimed by the holders of shares so redeemed, such funds shall be repaid to the Corporation at the end of three years, and thereafter the holder of any such shares shall look only to the general funds of the Corporation for the payment, without interest, of the redemption price, together with accumulated and unpaid dividends to the applicable redemption date. To the extent the aggregate amount of cash deposited by the Corporation pursuant toSubsections 5.5 or7.5 exceeds the aggregate Change in Control Redemption Price or Redemption Price, as the case may be, of the Series A Preferred Stock to be redeemed, together with accumulated and unpaid dividends to the applicable redemption date, then promptly after the applicable redemption date, any such excess may be returned to the Corporation, on demand.
11. No Voting Rights. Holders of the Series A Preferred Stock will not have any voting rights, except as required by the Act.
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12. No Conversion Rights. The holders of Series A Preferred Stock shall not have any rights to convert such shares into shares of any other class or series of stock or into any other securities of, or interest in, the Corporation.
13. No Sinking Fund. No sinking fund shall be established for the retirement or redemption of Series A Preferred Stock.
14. No Preemptive Rights. No holders of Series A Preferred Stock shall, as such holder, have any preemptive rights to purchase or subscribe for additional shares of stock of the Corporation or any other security of the Corporation which it may issue or sell.
15. Holders. The Corporation shall be entitled to treat the holders of record of the Series A Preferred Stock for all purposes as the persons entitled to have and exercise all the rights of an owner of Series Preferred Stock, including but not limited to the right to receive dividends and to receive notices.
(e) Rights, Preferences and Restrictions of Series B Preferred Stock
1. Reserved.
2. Rank. The Series B Preferred Stock will, with respect to dividends and rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, rank senior to all classes or series of Common Stock and to all classes or series of equity securities of the Corporation now or hereafter authorized, issued or outstanding, other than any class or series of equity securities of the Corporation expressly designated as ranking on a parity with or senior to the Series B Preferred Stock as to dividends or rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Corporation or both.
3. Dividends.
3.1 Payment of Dividends. Subject to the rights of holders of Parity Preferred Stock as to the payment of dividends and holders of equity securities issued after the date hereof in accordance herewith ranking senior to the Series B Preferred Stock as to payment of dividends, holders of Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors of the Corporation, out of funds legally available for the payment of dividends, cumulative cash dividends at the rate per annum equal to 4.0% over 90 day LIBOR, as determined by the Corporation prior to the commencement of each calendar quarter (the “Dividend Rate”) times the Liquidation Preference per share of Series B Preferred Stock. The Dividend rate shall remain in effect for the entire calendar quarter until redetermined for the next successive calendar quarter. Such dividends shall be cumulative, shall accrue from the original date of issuance and will be payable in cash on the Preferred Stock Dividend Payment Date. The amount of the dividend payable for any period will be computed on the basis of a 360-day year of twelve 30-day months and for any period shorter
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than a full quarterly period for which dividends are computed, the amount of the dividend payable will be computed on the basis of the ratio of the actual number of days elapsed in such period to ninety (90) days. If any date on which dividends are to be made on the Series B Preferred Stock is not a Business Day, then payment of the dividend to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. Dividends on the Series B Preferred Stock will be made to the holders of record of the Series B Preferred Stock on the Dividend Record Date.
(a) “LIBOR” is the rate for U.S. dollar deposits with a maturity equal to the number of days specified above, as reported on Telerate page 3750 as of 11:00 a.m., London time, on the second London business day before the relevant calendar quarter begins (or if not so reported, then as determined by the Corporation from another recognized source of interbank quotation.).
3.2 Limitation on Dividends. No dividend on the Series B Preferred Stock shall be declared or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting apart for payment shall be restricted or prohibited by law. Nothing in thisSubsection 3.2 shall be deemed to modify or in any manner limit the provisions ofSubsections 3.3 or3.4.
3.3 Dividends Cumulative. Dividends on the Series B Preferred Stock will accrue whether or not the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Accrued but unpaid dividends on the Series B Preferred Stock will accumulate as of the Preferred Stock Dividend Date on which they first become payable. Dividends on account of arrears for any past dividend periods may be declared and paid at any time, without reference to a regular Preferred Stock Dividend Date to holders of record of the Series B Preferred Stock on the record date fixed by the Board of Directors which date shall be not less than 10 days and not more than 30 Business Days prior to the payment date. Accumulated and unpaid dividends will not bear interest.
3.4 Priority as to Dividends.
(a) So long as any Series B Preferred Stock is outstanding, no dividend of cash or other property shall be authorized, declared, paid or set apart
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for payment on or with respect to Junior Stock, nor shall any cash or other property be set aside for or applied to the purchase, redemption or other acquisition for consideration of any Series B Preferred Stock, any Parity Preferred Stock with respect to dividends or any Junior Stock, unless, in each case, all dividends accumulated on all Series B Preferred Stock and all classes and series of outstanding Parity Preferred Stock with respect to dividends have been paid in full. The foregoing sentence will not prohibit (i) dividends payable solely in shares of Junior Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock into Junior Stock, (iii) purchase or other acquisitions of Junior Stock for purposes of any employee or director incentive or benefit plan of the Corporation or any subsidiary, and (iv) purchases or acquisition of shares of Series B Preferred Stock pursuant to a purchase or exchange offer that is made on the same terms to all holders of Series B Preferred Stock.
(b) So long as dividends have not been paid in full (or a sum sufficient for such full payment is not irrevocably deposited in trust for payment) upon the Series B Preferred Stock, all dividends authorized and declared on the Series B Preferred Stock and all classes or series of outstanding Parity Preferred Stock with respect to dividends shall be authorized and declared so that the amount of dividends authorized and declared per share of Series B Preferred Stock and such other classes or series of Parity Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series B Preferred Stock and such other classes or series of Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such class or series of Parity Preferred Stock does not have cumulative dividend rights) bear to each other.
3.5 No Further Rights. Holders of Series B Preferred Stock shall not be entitled to any dividends, whether payable in cash, other property or otherwise, in excess of the full cumulative dividends described herein.
4. Liquidation Preference.
4.1 Payment of Liquidating Distributions. Subject to the rights of holders of Parity Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation and subject to equity securities ranking senior to the Series B Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, the holders of Series B Preferred Stock shall be entitled to receive out of the asses of the Corporation legally available for distribution or the proceeds thereof, after payment or provision for debts and other liabilities of the Corporation, but before any payment or distributions shall be made to holders of Common Stock or any other class or series of shares of the Corporation that ranks junior to the Series B Preferred Stock as to rights upon liquidation, dissolution or winding-up of the Corporation, an amount equal to the sum of (i) the Liquidation Preference and (ii) an amount equal to any accumulated and unpaid dividends thereon, whether or not declared, to the date of payment. In the event that, upon
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such voluntary or involuntary liquidation, dissolution or winding-up, there are insufficient assets to permit full payment of liquidating distributions to the holders of Series B Preferred Stock and any Parity Preferred Stock as to rights upon liquidation, dissolution or winding-up of the Corporation, all payments of liquidating distributions on the Series B Preferred Stock and such Parity Preferred Stock shall be made so that the payments on the Series B Preferred Stock and such Parity Preferred Stock shall in all cases bear to each other the same ratio that the respective rights of the Series B Preferred Stock and such other Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such Parity Preferred Stock does not have cumulative dividend rights) upon liquidation, dissolution or winding-up of the Corporation bear to each other.
4.2 Notice. Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, stating the payment date or dates when, and the place or places where, the amount distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than thirty (30) and not more than sixty (60) days prior to the payment date stated therein, to each record holder of the Series B Preferred Stock at the respective addresses of such holders as the same shall appear on the share transfer records of the Corporation.
4.3 No Further Rights. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series B Preferred Stock will have no right or claim to any of the remaining assets of the Corporation.
4.4 Consolidation, Merger or Certain Other Transactions. The voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially of the assets of the Corporation to, or the consolidation or merger or other business combination of the Corporation with or into, any corporation or other entity (or of any corporation or other entity with or into the Corporation) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Corporation.
4.5 Permissible Distributions. In determining whether a distribution (other than upon voluntary liquidation) by distribution, redemption or other acquisition of shares of stock of the Corporation or otherwise is permitted under the Act, no effect shall be given to amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of shares of stock of the Corporation whose preferential rights upon dissolution are superior to those receiving the distribution.
5. Redemption at Election of Holders on Change of Control.
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5.1 Change of Control. If a Change of Control occurs, any holders of Series B Preferred Stock may require that the Corporation redeem al or any portion of such holder’s Series B Preferred Stock, subject to the terms and conditions set forth herein, on the Change of Control Redemption Date at a redemption price, payable in cash, equal to (i) the Change in Control Redemption Price plus (ii) accumulated and unpaid dividends, whether or not declared, to the Change of Control Redemption Date.
5.2 Notice by Corporation on Change of Control. Within 15 Business Days after the occurrence of a Change in Control, the Corporation shall mail a written notice of Change in Control by first-class mail, postage prepaid, to each holder of record of Series B Preferred Stock. The notice shall include or transmit a form of Change in Control Redemption Notice to be completed by the holder and shall state: (i) the events causing the Change in Control and the date of such Change in Control; (ii) the date by which the Change in Control Redemption Notice pursuant to thisSection 5 must be given; (iii) the Change in Control Redemption Date, which shall be a date not later than sixty (60) Business Days after the Change in Control; (iv) the Change in Control Redemption Price; (v) that dividends on the Series B Preferred Stock to be redeemed will cease to accumulate on the Change in Control Redemption Date; (vi) that the Change in Control Redemption Price and any accumulated and unpaid dividends for any shares of Series B Preferred Stock as to which a Change in Control Redemption Notice has been duly given and not withdrawn will be paid promptly on the late of the Change in Control Redemption Date or the time of surrender of the certificate(s) for such shares; (vii) the procedures the holder must follow to exercise rights under thisSection 5 and a brief description of those rights; (viii) the place where the shares of Series B Preferred Stock are to be surrendered for payment of the Change in Control Redemption price; and (ix) the procedures for withdrawing a Change in Control Redemption Notice.
5.3 Change in Control Redemption Notice by Holder. A holder may exercise its rights specified in thisSection 5 upon delivery of a Change in Control Redemption Notice to the Corporation at any time prior to the close of business on the Second Business Day prior to the Change in Control Redemption Date, stating: (i) the certificate number or numbers of the shares which the holder will deliver to be redeemed; (ii) the portion of the holder’s Series B Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the Change in Control Redemption Date.
5.4 Withdrawal of Change in Control Redemption Notice. A Change in Control Redemption Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Change in Control Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the shares with respect to which such notice if withdrawal is being
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submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Change in Control Redemption Date (which must be $1,000 or an integral multiple thereof) and which have been or will be surrendered for redemption.
5.5 Deposit of Change in Control Redemption Price. Prior to 12:00 noon, New York, New York time, on the Change in Control Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the Series B Preferred Stock being redeemed, funds sufficient to pay the aggregate Change in Control Redemption Price of all the shares of Series B Preferred Stock as to which a Change in Control Redemption Notice has been delivered and not withdrawn, together with any accumulated and unpaid dividends thereon to the Change in Control Redemption Date, and shall give irrevocable instructions and authority to pay such amount on such shares, upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of the Change in Control.
6. Redemption at Election of Survivor Representative on Death.
6.1 Redemption Rights of Survivor Representative. Any Survivor Representative may require once, but not from time to time, that the Corporation redeem, on the terms and conditions set forth herein, all or any portion of the Series B Preferred Stock in which a Deceased Beneficial Owner had a beneficial interest immediately before such Deceased Beneficial Owner’s death.
6.2 Redemption Rights of Survivor Representative. Any Survivor Representative of a Deceased Beneficial Owner may require once, but not from time to time, that the Corporation redeem, all or any portion of the Deceased Beneficial Owner’s beneficial interest in Series B Preferred Stock eligible for redemption hereunder on a Redemption Date, subject to the terms and conditions set forth therein, at a redemption price, payable in cash, equal to (i) the Liquidation Preference per shares of Series B Preferred Stock redeemed, plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption;provided,however, that the Corporation shall not be required to redeem on any Redemption Date shares of Series B Preferred Stock and Series A Preferred Stock having an aggregate liquidation preference of more than the 25% Limit (and if the Corporation elects to apply the 25% Limit, the shares to be redeemed on that Redemption Date shall be accepted on a First-Come, First-Served Basis.
6.3 Procedure for Redemption at Option of Survivor Representative. If a Survivor Representative wishes to require the Corporation to redeem all of any portion of the Series B Preferred Stock of the Survivor’s Representative’s Deceased Beneficial Owner eligible for redemption pursuant to thisSection 6, the Survivor Representative shall deliver a Redemption on Death Notice to the Corporation at any time following the Deceased Beneficial Owner’s death, but not later than November 15 for a Redemption Date on the first Business Day of the
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following January, stating (i) the certificate number or numbers of the shares which the Survivor Representative wishes to deliver to be redeemed on the next Redemption Date; (ii) the portion of the holder’s Series B Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the next Redemption Date on which such shares are eligible for redemption. The Survivor Representative’s Redemption on Death Notice must be accompanies by appropriate evidence that (a) the Deceased Beneficial Owner has died, (b) the Survivor Representative has authority to act on behalf of the Deceased Beneficial Owner, and (c) if the Deceased Beneficial Owner was not the holder of record of the Series B Preferred Stock to be redeemed, that the Deceased Beneficial Owner had a beneficial interest, e.g., a s a trust beneficiary entitled to 50% of the principal of the trust. The Corporation may defer the redemption of shares that are the subject of a proper Redemption on Death Notice received after November 15 of any year until the second Redemption Date thereafter, on a First-Come, First-Served Basis.
6.4 Notice of Acceptance by Corporation. If the Corporation receives a Redemption on Death Notice delivered pursuant toSubsection 6.2, the Corporation shall send a notice no later than thirty (30) days after the date of receipt to the Survivor Representative who sent the Redemption on Death Notice stating: (i) whether or not such holder’s Redemption on Death Notice met the requirements ofSubsection 6.3; (ii) if the Redemption on Death Notice and all supporting information was duly delivered in proper form, the number of shares to be redeemed from the holder in question on the applicable Redemption Date; and (iii) the place where the shares are to be surrendered for payment of the redemption price. The Corporation may request such additional written information as it deems reasonably necessary to establish the eligibility of any particular shares of Series B Preferred Stock for redemption under thisSection 6, including a medallion signature guarantee of the Survivor Representative’s signature.
6.5 Withdrawal of Redemption on Death Notice. A Redemption on Death Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Redemption Date, specifying: (i) the certificate number or numbers of shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the Shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject tot the original Redemption on Death Notice (which must be $1,000 or an integral multiple thereof), which have been accepted for redemption by the Corporation and which have been or will be delivered for redemption. Unless the withdrawal if a complete withdrawal, the Survivor Representative shall not be entitled to submit a Redemption on Death Notice for a subsequent Redemption Date.
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6.6 Deposit of Redemption Price. Prior to 12:00 noon, New York, New York time, on the Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the shares being redeemed, funds sufficient to pay the aggregate redemption price of all the shares of Series B Preferred Stock as to which a Redemption on Death Notice has been delivered and accepted by the Corporation, and not withdrawn by the holder, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
7. Redemption at Election of Holders Other Than on Change in Control.
7.1 Redemption Rights of Holders. Any holder may require that the Corporation redeem all or any portion of such holder’s Series B Preferred Stock on a Redemption Date, subject to the terms and conditions set forth therein, at a redemption price, payable in cash, equal to (i) the Liquidation Preference per share of Series B Preferred Stock redeemed, plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption; provided, however, the Corporation shall not be required to redeem on any Redemption Date shares of Series B Preferred Stock and Series A Preferred Stock having an aggregate liquidation preference that exceeds the 25% Limit (including shares of Deceased Beneficial Owners), and if the Corporation elects to apply the 25% Limit, the shares selected to be redeemed on that Redemption Date shall be the shares duly submitted for redemption by Survivor Representatives, on a First-Come, First-Served Basis, and any remainder submitted for redemption by persons other than Survivor Representatives shall be prorated based on the relative preferences of the total number of shares that are the subject of proper redemption notices for that Redemption Date pursuant toSubsection 7.2 and pursuant to the corresponding provisions of the Series A Preferred Stock.
7.2 Procedure for Redemption at Option of Holder Other than on Change of Control. If a holder of Series B Preferred Stock wishes to require the Corporation to redeem all or any portion of such holder’s shares pursuant to thisSection 7, the holder shall deliver written notice of redemption (a “Redemption Notice”) to the Corporation at any time during the month of November of any year beginning November 2014, stating (i) the certificate number or numbers of the shares which the holder wishes to deliver to be redeemed on the next Redemption Date; (ii) the portion of the holder’s Series B Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the next Redemption Date.
7.3 Notice of Acceptance by Corporation. If the Corporation receives any Redemption Notices during the month of November delivered pursuant toSubsection 7.2, the Corporation shall send a notice no later than the fifteenth day of the following month to each holder who has submitted a Redemption Notice
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stating: (i) the aggregate number of shares of Series B Preferred Stock and Series A Preferred Stock to be redeemed on the next Redemption Date; (ii) whether or not such holder’s Redemption Notice met the requirements ofSubsection 7.2; (iii) if the Redemption Notice was duly delivered in proper form, the number of shares to be redeemed from the holder in question on the applicable Redemption Date; and (iv) the place where the shares are to be surrendered for payment of the redemption price. If the Corporation elects to prorate the shares it accepts for redemption because of the 25% Limit, a holder whose shares were so prorated must submit a new Redemption Notice for any subsequent Redemption Date on which the holder wishes to redeem shares pursuant to thisSection 7.
7.4 Withdrawal of Redemption Notice. A Redemption Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the Shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Redemption Notice (which must be $1,000 or an integral multiple thereof), which have been accepted for redemption by the Corporation and which have been or will be delivered for redemption.
7.5 Deposit of Redemption Price. Prior to 12:00 noon, New York, New York time, on the Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the shares being redeemed, funds sufficient to pay the aggregate redemption price of all the shares of Series B Preferred Stock as which a Redemption Notice has been delivered and accepted by the Corporation and not withdrawn by the holder, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
8. Optional Redemption by the Corporation.
8.1 Right of Optional Redemption. The Series B Preferred Stock may not be redeemed at the option of the Corporation prior to January 1, 2010. On or after such date, the Corporation shall have the right to redeem the Series B Preferred Stock, in whole or in part, at any time or from time to time, upon not less than thirty (30) nor more than sixty (60) days’ written notice, at a redemption price, payable in cash, equal to (i) the Call Price plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption. If fewer than all of the outstanding shares of Series B Preferred Stock are to be redeemed, the shares of Series B Preferred Stock to be redeemed shall be selectedpro rata(as nearly as practicable without creating fractional shares).
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8.2 Limitation on Optional Redemption by Corporation. The Corporation may not redeem fewer than all of the outstanding shares of Series B Preferred Stock pursuant to thisSection 8 unless all accumulated and unpaid dividends have been paid on all Series B Preferred Stock for all quarterly dividends periods terminating on or prior to the date of redemption;provided,however, that the foregoing shall not prevent the purchase or acquisition of shares of Series B Preferred Stock pursuant to a purchase or exchange offer that is made on the same terms to all holders of Series B Preferred Stock.
8.3 Procedures for Optional Redemption by Corporation. Notice of redemption will be mailed by the Corporation, by first class mail, postage prepaid, not less than thirty (30) nor more than sixty (60) days prior to the redemption date, addressed to the holders of record of the Series B Preferred Stock to be redeemed at their respective addresses as they appear on the transfer records of the Corporation. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any Series B Preferred Stock except as to the holder to whom such notice was defective or not given. In addition to any information required by law, each such notice shall state: (i) the redemption date; (ii) the Call Price; (iii) the number of shares of Series B Preferred Stock to be redeemed; (iv) the place where such shares of Series B Preferred Stock are to be surrendered for payment of the Call Price; (v) that dividends on the Series B Preferred Stock to be redeemed will cease to accumulate on such redemption date; and (vi) that payment of the Call Price and any accumulated and unpaid dividends will be made upon presentation and surrender of such Series B Preferred Stock at the place designated by the Corporation. If fewer than all of the shares of Series B Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series B Preferred Stock held by such holder to be redeemed.
8.4 Deposit of Call Price. Prior to 12 noon, New York, New York time, on the redemption date, the Corporation shall deposit, irrevocably in trust for the benefit of the Series B Preferred Stock being redeemed, funds sufficient to pay the aggregate Call Price of all the shares of Series B Preferred Stock for redemption, together with any accumulated and unpaid dividends thereon to the Redemption Date, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation in its notice of redemption.
9. Mandatory Redemption by the Corporation upon Maturity. The Corporation shall redeem any shares of Series B Preferred Stock that remain outstanding on the Final Redemption Date at a redemption price, payable in cash, equal to (i) the Liquidation Preference per shares of Series B Preferred Stock, plus (ii) accumulated and unpaid dividends, whether or not declared, to the date of redemption. Notice of redemption will be mailed by the Corporation, by first class, postage prepaid, not less than thirty (30) nor more than sixty (60) days prior
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to the Final Redemption Date, addressed to holders of record of the Series B Preferred Stock. Each such notice shall state: (i) the Final Redemption Date; (ii) the redemption price; (iii) the place where shares of Series B Preferred Stock are to be surrendered for payment of the redemption price; (iv) that dividends on the Series B Preferred Stock will cease to accumulate on the Final Redemption Date; and (v) that payment of the redemption price and any accumulated and unpaid dividends will be made upon presentation and surrender of the Series B Preferred Stock to the place designated by the Corporation.
9.1 Deposit of Redemption Price on Final Redemption Date. Prior to 12 noon, New York, New York time, on the Final Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the remaining Series B Preferred Stock, funds sufficient to pay the aggregate redemption price thereof, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of the final Redemption Date.
10. Provisions Applicable to All or Certain Redemptions of Series B Preferred Stock.
10.1 Unlawful Redemption. Nothing herein shall be construed to require the Corporation to redeem shares of Series B Preferred Stock pursuant to any provision of this Third Amended and Restated Certificate of Incorporation if such redemption would violate the Act, and to the extent that there are not sufficient funds available for lawful redemption, the shares to be redeemed shall be prorated among the holders thereof based on the relative liquidation preferences of the total number of shares that would otherwise be required to be redeemed, and the remainder of such shares shall be redeemed pro rate among such holders when and as funds become available out of which redemption payment may lawfully be made.
10.2 Timing. If any date fixed for redemption of Series B Preferred Stock pursuant toSections 5,6,7,8 or9 is not a Business Day, then payment of the redemption price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day fall in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. On and after the date of redemption, dividends will cease to accumulate on the Series B Preferred Stock or portions thereof called for redemption, unless the Corporation default in the payment of the redemption price. If payment of the redemption price, including any accumulated and unpaid dividends in respect of the Series B Preferred Stock being redeemed, is improperly withheld or refused and not paid by the Corporation, dividends on such Series B Preferred Stock will continue to accumulate from the original redemption date to the date of payment, in which case the actual payment date will be considered the date fixed for
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redemption for purposes of calculating the redemption price and any accumulated and unpaid dividends.
10.3 Partial Redemption. If fewer than all shares of Series B Preferred Stock evidenced by any certificate are being redeemed pursuant to this Third Amended and Restated Certificate of Incorporation, a new certificate shall be issued upon surrender of the certificate evidencing all such Series B Preferred Stock to evidence the unredeemed Series B Preferred Stock, without cost to the holder thereof.
10.4 Effect on Deposit. On the applicable redemption date, the Corporation shall have deposited funds in trust pursuant to pursuant toSubsections 5.5,6.6,7.5,8.4 or9.1, the shares being redeemed out of such funds shall be deemed no longer outstanding from and after the applicable redemption date and shall thereafter represent only the right to receive the applicable redemption price, together with any accumulated and unpaid dividends to the redemption date, without interest, upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
10.5 Status of Redeemed Stock. Any Series B Preferred Stock that shall at any time have been redeemed shall after such redemption, have the status of authorized but unissued Preferred Stock, without designation as to class or series until such shares are once more designated as part of a particular class or series by the Board of Directors.
10.6 Return of Funds Deposited in Trust. Subject to the applicable escheat laws, if funds deposited by the Corporation in trust pursuant toSubsections 5.5,6.6,7.5,8.4 or9.1 remain unclaimed by the holders of shares so redeemed, such funds shall be repaid to the Corporation at t he end of three years, and thereafter the holder of any such shares shall look only the general funds of the Corporation for the payment, without interest, on the redemption price, together with accumulated and unpaid dividends to the applicable redemption date. The to extent the aggregate amount of cash deposited by the Corporation pursuant toSubsections 5.5 or7.5 exceeds the aggregate Change in Control Redemption Price or Redemption Price, as the case may be, of the Series B Preferred Stock to be redeemed, together with accumulated and unpaid dividends to the applicable redemption date, then promptly after the applicable redemption date, any such excess may be returned to the Corporation, on demand.
11. No Voting Rights. Holders of the Series B Preferred Stock will not have any voting rights, except as required by the Act.
12. No Conversion Rights. The holders of Series B Preferred Stock shall not have any rights to convert such shares into shares of any other class or series of stock or into any other securities of, or interest in, the Corporation.
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13. No Sinking Fund. No sinking fund shall be established for the retirement or redemption of Series B Preferred Stock.
14. No Preemptive Rights. No holder of Series B Preferred Stock shall, as such holder, shave any preemptive rights to purchase or subscribe for additional shares of stock of the Corporation or any other security of the Corporation which it may issue or sell.
15. Holders. The Corporation shall be entitled to treat the holders of record of the Series B Preferred Stock for all purposes as the persons entitled to have and exercise all the rights of an owner of Series B Preferred Stock, including but not limited to the right to receive dividends and to receive notices.
(f) Rights, Preferences and Restrictions of Series C Preferred Stock
1. Reserved.
2. Rank. The Series C Preferred Stock will, with respect to dividends and rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, rank senior to all classes or series of Common Stock and to all classes or series of equity securities of the Corporation now or hereafter authorized, issued or outstanding, other than any class or series of equity securities of the Corporation expressly designated as ranking on a parity with or senior to the Series C Preferred Stock as to dividends or rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Corporation or both.
3. Dividends.
3.1 Payment of Dividends. Subject to the rights of holders of Parity Preferred Stock as to the payment of dividends and holders of equity securities issued after the date hereof in accordance herewith ranking senior to the Series C Preferred Stock as to payment of dividends, holders of Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors of the Corporation, out of funds legally available for the payment of dividends, cumulative cash dividends at the rate per annum 8.25% of the Liquidation Preference per share of Series C Preferred Stock. Such dividends shall be cumulative, shall accrue from July 1, 2006 for the first 1,400 shares issues and from the original date of issuance for the remaining 600 shares issued thereafter and will be payable in cash on the Preferred Stock Dividend Payment Date. The amount of the dividend payable for any period will be computed on the basis of a 360-day year of twelve 30-day months and for any period shorter than a full quarterly period for which dividends are computed, the amount of the dividend payable will be computed on the basis of the ratio of the actual number of days elapsed in such period to ninety (90) days. If any date on which dividends are to be made on the Series C Preferred Stock is not a Business Day, then payment of the dividend to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of
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any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. Dividends on the Series C Preferred Stock will be made to the holders of record of the Series C Preferred Stock on the Dividend Record Date.
(a) “LIBOR” is the rate for U.S. dollar deposits with a maturity equal to the number of days specified above, as reported on Telerate page 3750 as of 11:00 a.m., London time, on the second London business day before the relevant calendar quarter begins (or if not so reported, then as determined by the Corporation from another recognized source or interbank quotation).
3.2 Limitation on Dividends. No dividend on the Series C Preferred Stock shall be declared or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting apart for payment shall be restricted or prohibited by law. Nothing in thisSubsection 3.2 shall be deemed to modify or in any manner limit the provisions ofSubsections 3.3 or3.4.
3.3 Dividends Cumulative. Dividends. on the Series C Preferred Stock will accrue whether or not the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Accrued but unpaid dividends on the Series C Preferred Stock will accumulate as of the Preferred. Stock Dividend Payment Date on which they first become payable. Dividends on account of arrears for any past dividend periods may be declared and paid at any time, without reference to a regular Preferred Stock Dividend Payment Date to holders of record of the Series C Preferred Stock on the record date fixed by the Board of Directors which date shall be not less than ten (10) days and not more than thirty (30) Business Days prior to the payment date. Accumulated and unpaid dividends will not bear interest.
3.4 Priority as to Dividends.
(a) So long as any Series C Preferred Stock is outstanding, no dividend of cash or other property shall be authorized, declared, paid or set apart for payment on or with respect to Junior Stock, nor shall any cash or other property be set aside for or applied to the purchase, redemption or other acquisition for consideration of any Series C Preferred Stock, any Parity Preferred Stock with respect to dividends or any Junior Stock, unless, in each case, all dividends accumulated on all Series C Preferred Stock and all classes and series of outstanding Parity Preferred Stock with respect to dividends have been paid in
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full. The foregoing sentence will not prohibit (i) dividends payable solely in shares of Junior Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock into Junior Stock, (iii) purchases or other acquisitions of Junior Stock for purposes of any employee or director incentive or benefit plan of the Corporation or any subsidiary, and (iv) purchases or acquisitions of shares of Series C Preferred Stock pursuant to a purchase or exchange offer that is made on the same terms to all holders of Series C Preferred Stock.
(b) So long as dividends have not been paid in full (or a sum sufficient for such full payment is not irrevocably, deposited in trust for payment) upon the Series C Preferred Stock, all dividends authorized and declared on the Series C Preferred Stock and all classes or series of outstanding Parity Preferred Stock with respect to dividends shall he authorized and declared so that the amount of dividends authorized and declared per share of Series C Preferred Stock and such other classes or series of Parity Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series C Preferred Stock and such other classes or series of Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such class or series of Parity Preferred Stock does not have cumulative dividend rights) bear to each other.
3.5 No Further Rights. Holders of Series C Preferred Stock shall not be entitled to any dividends, whether payable in cash, other property or otherwise, in excess of the full cumulative dividends described herein.
4. Liquidation Preference.
4.1 Payment of Liquidating Distributions. Subject to the rights of holders of Parity Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation and subject to equity securities ranking senior to the Series C Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, the holders of Series C Preferred Stock shall be entitled to receive out of the assets of the Corporation legally available for distribution or the proceeds thereof, after payment or provision for debts and other liabilities of the Corporation, but before any payment or distributions shall be made to holders of Common Stock or any other class or series of shares of the Corporation that ranks junior to the Series C Preferred Stock as to rights upon liquidation, dissolution or winding-up of the Corporation, an amount equal to the sum of (i) the Liquidation Preference and (ii) an amount equal to any accumulated and unpaid dividends thereon, whether or not declared, to the date of payment. In the event that, upon such voluntary or involuntary liquidation, dissolution or winding-up, there are insufficient assets to permit full payment of liquidating distributions to the holders of Series C Preferred Stock and any Parity Preferred Stock as to rights upon liquidation, dissolution or winding-up of the Corporation, all payments of liquidating distributions on the Series C Preferred Stock and such Parity Preferred Stock-shall be made so that the payments on the Series C Preferred Stock and
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such Parity Preferred Stock shall in all cases bear to each other the same ratio that the respective rights of the Series C Preferred Stock and such other Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such Parity Preferred Stock does not have cumulative dividend rights) upon liquidation, dissolution or winding-up of the Corporation bear to each other.
4.2 Notice. Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than thirty (30) nor more than sixty (60) days prior to the payment date stated therein, to each record holder of the Series C Preferred Stock at the respective addresses of such holders as the same shall appear on the share transfer records of the Corporation.
4.3 No Further Rights. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series C Preferred Stock will have no right or claim to any of the remaining assets of the Corporation.
4.4 Consolidation, Merger or Certain Other Transactions. The voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the assets of the Corporation to, or the consolidation or merger or other business combination of the Corporation with or into, any corporation or other entity (or of any corporation or other entity with or into the Corporation) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Corporation.
4.5 Permissible Distributions. In determining whether a distribution (other than upon voluntary liquidation) by distribution, redemption or other acquisition of shares of stock of the Corporation or otherwise is permitted under the Act, no effect shall be given to amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of shares of stock of the Corporation whose preferential rights upon dissolution are superior to those receiving the distribution.
5. Redemption at Election of Holders on Change of Control.
5.1 Change of Control. If a Change of Control occurs, any holder of Series C Preferred Stock may require that the Corporation redeem all or any portion of such holder’s Series C Preferred Stock, subject to the terms and conditions set forth herein, on the Change of Control Redemption Date at a redemption price, payable in cash, equal to (i) the following percentage of the Liquidation Preference per share of Series C Preferred Stock (the “Series C Change In Control Redemption Price”) if redeemed during the year indicated:
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Change in Control | ||||
Year | Redemption Price | |||
2006 through 2011 | 103 | % | ||
2012 | 102 | % | ||
2013 | 101 | % | ||
2014 and after | 100 | % |
plus (ii) accumulated and unpaid dividends, whether or not declared, to the Change of Control Redemption Date.
5.2 Notice by Corporation on Change of Control. Within fifteen (15) Business Days after the occurrence of a Change in Control, the Corporation, shall mail a written notice of Change in Control by first-class mail, postage prepaid, to each holder of record of Series C Preferred Stock. The notice shall include or transmit a form of Change in Control Redemption Notice to be completed by the holder and shall state: (i) the events causing the Change in Control and the date of such Change in Control; (ii) the date by which the Change in Control Redemption Notice pursuant to thisSection 5 must be given; (iii) the Change in Control Redemption Date, which shall be a date not later than sixty (60) Business Days after the Change in Control; (iv) the Series C Change in Control Redemption Price; (v) that dividends on the Series C Preferred Stock to be redeemed will cease to accumulate on the Change in Control Redemption Date; (vi) that the Series C Change in Control Redemption Price and any accumulated and unpaid dividends for any shares of Series C Preferred Stock as to which a Change In Control Redemption Notice has been duly given and not withdrawn will be paid promptly on the later of the Change In Control Redemption Date or the time of surrender of the certificate(s) for such shares; (vii) the procedures the holder must follow to exercise rights under thisSection 5 and a brief description of those rights; (viii) the place where the shares of Series C Preferred Stock are to be surrendered for payment of the Series C Change in Control Redemption Price; and (ix) the procedures for withdrawing a Change in Control Redemption Notice.
5.3 Change in Control Redemption Notice by Holder. A holder may exercise its rights specified in thisSection 5 upon delivery of a Change in Control Redemption Notice to the Corporation at any time prior to the close of business on the Second Business Day prior to the Change in Control Redemption Date, stating: (i) the certificate number or numbers of the shares which the holder will deliver to be redeemed; (ii) the portion of the holder’s Series C Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the Change in Control Redemption Date.
5.4 Withdrawal of Change in Control Redemption Notice. A Change in Control Redemption Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business
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on the Business Day preceding the Change in Control Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Change in Control Redemption Notice (which must be $1,000 or an integral multiple thereof) and which have been or will be surrender for redemption.
5.5 Deposit of Change in Control Series C Change of Control Redemption Price. Prior to 12:00 noon, New York, New York time, on the Change in Control Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the Series C Preferred Stock being redeemed, funds sufficient to pay the aggregate Series C Change in Control Redemption Price of all the shares of Series C Preferred Stock as to which a Change in Control Redemption Notice has been delivered and not withdrawn, together with any accumulated and unpaid dividends thereon to the Change in Control Redemption Date, and shall give irrevocable instructions and authority to pay such amount on such shares, upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of the Change in Control.
6. Redemption at Election of Survivor Representative on Death.
6.1 Redemption Rights of Survivor Representative. Any Survivor Representative may require once, but not from time to time, that the Corporation redeem, on the terms and conditions set forth herein, all or any portion of the Series C Preferred Stock in which a Deceased Beneficial Owner had a beneficial interest immediately before such Deceased Beneficial Owner’s death
6.2 Redemption Rights of Survivor Representative. Any Survivor Representative of a Deceased Beneficial Owner may require once, but not from time to time, that the Corporation redeem all or any portion of the Deceased Beneficial Owner’s beneficial interest in Series C Preferred Stock eligible for redemption hereunder on a Redemption Date, subject to the terms and conditions set forth herein, at a redemption price, payable in cash, equal to (i) the Liquidation Preference per share of Series C Preferred Stock redeemed, plus (ii) accumulated and unpaid dividends, whether or nor declared, to the date of redemption;provided,however, that the Corporation shall not be required to redeem on any Redemption Date shares of Series C Preferred Stock and Series A Preferred Stock having an aggregate liquidation preference of more than the 25% Limit (and if the Corporation elects to apply the 25% Limit, the shares to be redeemed on that Redemption Date shall be accepted on a First-Come, First-Served Basis).
6.3 Procedure for Redemption at Option of Survivor Representative. If a Survivor Representative wishes to require the Corporation to redeem all or any portion of the Series C Preferred Stock of the Survivor’s Representative’s
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Deceased Beneficial Owner eligible for redemption pursuant to thisSection 6, the Survivor Representative shall deliver a Redemption on Death Notice to the Corporation at any time following the Deceased Beneficial Owner’s death, but not later than November 15 for a Redemption Date on the first Business Day of the following January, stating (i) the certificate number or numbers of the shares which the Survivor Representative wishes to deliver to be redeemed on the next Redemption Date; (ii) the portion of the holder’s Series C Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the next Redemption Date on which such shares are eligible for redemption. The Survivor Representative’s Redemption on Death Notice must be accompanied by appropriate evidence that (a) the Deceased Beneficial Owner has died, (b) the Survivor Representative has authority to act on behalf of the Deceased Beneficial Owner, and (c) if the Deceased Beneficial Owner was not the holder of record of the Series C Preferred Stock to be redeemed, that the Deceased Beneficial Owner had a beneficial interest in the such Series C Preferred Stock immediately prior to his or death and the nature and amount of such beneficial interest, e.g., as a trust beneficiary entitled to 50% of the principal of the trust. The Corporation may defer the redemption of shares that are the subject of a proper Redemption on Death Notice received after November 15 of any year until the second Redemption Date thereafter, on a First-Come, First-Served Basis.
6.4 Notice of Acceptance by Corporation. If the Corporation receives a Redemption on Death Notice delivered pursuant toSubsection 6.2, the Corporation shall send a notice no later than thirty (30) days after the date of receipt to the Survivor Representative who sent the Redemption on Death Notice stating: (i) whether or not such holder’s Redemption on Death Notice met the requirements ofSubsection 6.3; (ii) if the Redemption on Death Notice and all supporting information was duly delivered in proper form, the number of shares to be redeemed from the holder in question on the applicable Redemption Date; and (iii) the place where the shares are to be surrendered for payment of the redemption price. The Corporation may request such additional written information as it deems reasonably necessary to establish the eligibility of any particular shares of Series C Preferred Stock for redemption under thisSection 6, including a medallion signature guarantee of the Survivor Representative’s signature.
6.5 Withdrawal of Redemption on Death Notice. A Redemption on Death Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the Shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Redemption on Death Notice (which must be $1,000 or an integral
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multiple thereof), which have been accepted for redemption by the Corporation and which have been or will be delivered for redemption. Unless the withdrawal is a complete withdrawal, the Survivor Representative shall not be entitled to submit a Redemption on Death Notice for a subsequent Redemption Date.
6.6 Deposit of Redemption Price. Prior to 12:00 noon, New York, New York time, on the Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the shares being redeemed, funds sufficient to pay the aggregate redemption price of all the shares of Series C Preferred Stock as to which a Redemption on Death Notice has been delivered and accepted by the Corporation and not withdrawn by the holder, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
7. Redemption at Election of Holders Other Than on Change of Control.
7.1 Redemption Rights of Holders. Any holder may require that the Corporation redeem all or any portion of such holder’s Series C Preferred Stock on a Redemption Date, subject to the terms and conditions set forth herein, at a redemption price, payable in cash, equal to (i) the Liquidation Preference per share of Series C Preferred Stock redeemed, plus (ii) accumulated and unpaid dividends, whether or nor declared, to the date of redemption; provided, however, that the Corporation shall not be required to redeem on any Redemption Date shares of Series C Preferred Stock and Series A Preferred Stock having an aggregate liquidation preference that exceeds the 25% Limit (including shares of Deceased Beneficial Owners), and if the Corporation elects to apply the 25% Limit, the shares selected to be redeemed on that Redemption Date shall be the shares duly submitted for redemption by Survivor Representatives, on a First-Come, First-Served Basis, and any remainder submitted for redemption by persons other than Survivor Representatives shall be prorated based on the relative liquidation preferences of the total number of shares that an the subject of proper redemption notices for that Redemption Date pursuant toSubsection 7.2 and pursuant to the corresponding provisions of the Series A Preferred Stock.
7.2 Procedure for Redemption at Option of Holder Other than on Change of Control. If a holder of Series C Preferred Stock wishes to require the Corporation to redeem all or any portion of such holder’s shares pursuant to thisSection 7, the holder shall deliver written notice of redemption (a “Redemption Notice”) to the Corporation at any time during the month of November of any year beginning November 2014, stating (i) the certificate number or numbers of the shares which the holder wishes to deliver to be redeemed on the next Redemption Date; (ii) the portion of the holder’s Series C Preferred Stock which the holder will deliver to be redeemed, which portion must have an aggregate liquidation preference of $1,000 or an integral multiple thereof; and (iii) that such shares shall be redeemed on the next Redemption Date.
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7.3 Notice of Acceptance by Corporation. If the Corporation receives any Redemption Notices during the month of November delivered pursuant toSubsection 7.2, the Corporation shall send a notice no later than the fifteenth day of the following month to each holder who has submitted a Redemption Notice stating: (i) the aggregate number of shares of Series C Preferred Stock and Series A Preferred Stock to be redeemed on the next Redemption Date; (ii) whether or not such holder’s Redemption Notice met the requirements ofSubsection 7.2; (iii) if the Redemption Notice was duly delivered in proper form, the number of shares to be redeemed from the holder in question on the applicable Redemption Date; and (iv) the place where the shares are to be surrendered for payment of the redemption price. If the Corporation elects to prorate the shares it accepts for redemption because of the 25% Limit, a holder whose shares were so prorated must submit a new Redemption Notice for any subsequent Redemption Date on which the holder wishes to redeem shares pursuant to thisSection 7.
7.4 Withdrawal of Redemption Notice. A Redemption Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporation at any time prior to the close of business on the Business Day preceding the Redemption Date, specifying: (i) the certificate number or numbers of the shares in respect of which such notice of withdrawal is being submitted; (ii) the aggregate liquidation preference of the Shares with respect to which such notice of withdrawal is being submitted; and (iii) the aggregate liquidation preference, if any, of the shares which remain subject to the original Redemption Notice.(which must be $1,000 or an integral multiple thereof), which have been accepted for redemption by the Corporation and which have been or will be delivered for redemption.
7.5 Deposit of Redemption Price. Prior to 12:00 noon, New York, New York time, on the Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the shares being redeemed, funds sufficient to pay the aggregate redemption price of all the shares of Series C Preferred Stock as to which a Redemption Notice has been delivered and accepted by the Corporation and not withdrawn by the holder, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
8. Optional Redemption by the Corporation.
8.1 Right of Optional Redemption. The Series C Preferred Stock may not be redeemed at the option of the Corporation prior to January 1, 2011. On or after such date, the Corporation shall have the right to redeem the Series C Preferred Stock, in whole or in part, at any time or from time to time, upon not less than thirty (30) nor more than sixty (60) days’ written notice, at a redemption price, payable in cash, equal to (i) the following percentage of the Liquidation Preference per share of Series C Preferred Stock (the “Series C Call Price”) if redeemed during the year indicated:
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Change in Control | ||||
Year | Redemption Price | |||
2011 | 103 | % | ||
2012 | 102 | % | ||
2013 | 101 | % | ||
2014 and after | 100 | % |
plus (ii) accumulated and unpaid dividends, whether or not declared, to the Change of Control Redemption Date. If fewer than all of the outstanding shares of Series C Preferred Stock are to be redeemed, the shares of Series C Preferred Stock to be redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares).
8.2 Limitation on Optional Redemption by Corporation. The Corporation may not redeem fewer than all of the outstanding shares of Series C Preferred Stock pursuant to thisSection 8 unless all accumulated and unpaid dividends have been paid on all Series C Preferred Stock for all quarterly dividend periods terminating on or prior to the date of redemption;provided,however, that the foregoing shall not prevent the purchase or acquisition of shares of Series C Preferred Stock pursuant to a purchase or exchange offer that is made on the same terms to all holders of Series C Preferred Stock.
8.3 Procedures for Optional Redemption by Corporation. Notice of redemption will be mailed by the Corporation, by first class mail, postage prepaid, not less than 30 nor more than 60 days prior to the redemption date, addressed to the holders of record of the Series C Preferred Stock to be redeemed at their respective addresses as they appear on the transfer records of the Corporation. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any Series C Preferred Stock except as to the holder to whom such notice was defective or not given. In addition to any information required by law, each such notice shall state: (i) the redemption date; (ii) the Series C Call Price; (iii) the number of shares of Series C Preferred Stock to be redeemed; (iv) the place where such shares of Series C Preferred Stock are to be surrendered for payment of the Series C Call Price; (v) that dividends on the Series C Preferred Stock to be redeemed will cease to accumulate on such redemption date; and (vi) that payment of the Series C Call Price and any accumulated and unpaid dividends will be made upon presentation and surrender of such Series C Preferred Stock at the place designated by the Corporation. If fewer than all of the shares of Series C Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series C Preferred Stock held by such holder to be redeemed.
8.4 Deposit of Series C Call Price. Prior to 12:00 noon, New York, New York time, on the redemption date, the Corporation shall deposit, irrevocably in trust for the benefit of the Series C Preferred Stock being redeemed, funds sufficient to pay the aggregate Series C Call Price of all the
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shares of Series C Preferred Stock selected for redemption, together with any accumulated and unpaid dividends thereon to the Redemption Date, and shall give irrevocable instructions and authority to pay such amount on such shares, upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of redemption.
9. Mandatory Redemption by the Corporation upon Maturity. The Corporation shall redeem any shares of Series C Preferred Stock that remain outstanding on the Final Redemption Date at a redemption price, payable in cash, equal to (i) the Liquidation Preference per share of Series C Preferred Stock, plus (ii) accumulated and unpaid dividends, whether or nor declared, to the date of redemption. Notice of redemption will, be mailed by the Corporation by first class mail, postage prepaid, not less than thirty (30) nor more than sixty (60) days prior to the Final Redemption Date, addressed to the holders of record of the Series C Preferred Stock. Each such notice shall state: (i) the Final Redemption Date; (ii) the redemption price; (iii) the place where shares of Series C Preferred Stock are to be surrendered for payment of the redemption price; (iv) that dividends on the Series, C Preferred Stock will cease to accumulate on the Final Redemption Date; and(v) that payment of the redemption price and any accumulated and unpaid dividends will be made upon presentation and surrender of the Series C Preferred Stock to the place designated by the Corporation.
9.1 Deposit of Redemption Price on Final Redemption Date. Prior to 12:00 noon, New York, New York time on the Final Redemption Date, the Corporation shall deposit, irrevocably in trust for the benefit of the remaining Series C Preferred Stock, funds sufficient to pay the aggregate redemption price thereof, together with any accumulated and unpaid dividends thereon, and shall give irrevocable instructions and authority to pay such amount on such shares upon surrender of the certificates evidencing such shares by the holders thereof at the place designated by the Corporation in its notice of the Final Redemption Date.
10. Provisions Applicable to All or Certain Redemptions of Series C Preferred Stock.
10.1 Unlawful Redemption. Nothing herein shall be construed to require the Corporation to redeem shares of Series C Preferred Stock pursuant to any provision of this Third Amended and Restated Certificate of Incorporation if such redemption would violate the Act, and to the extent that there are not sufficient funds available for a lawful redemption, the shares to be redeemed shall be prorated among the holders thereof based on the relative liquidation preferences of the total number of shares that would otherwise be required to be redeemed, and the remainder of such shares shall be redeemed pro rata among such holders when and as funds become available out of which redemption payments may lawfully be made.
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10.2 Timing. If any date fixed for redemption of Series C Preferred Stock pursuant toSections 5, 6, 7, 8 or 9 is not a Business Day, then payment of the redemption price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. On and after the date of redemption, dividends will cease to accumulate on the Series C Preferred Stock or portions thereof called for redemption, unless the Corporation defaults in the payment of the redemption price. If payment of the redemption price, including any accumulated and unpaid dividends in respect of the Series C Preferred Stock being redeemed, is improperly withheld or refused and not paid by the Corporation, dividends on such Series C Preferred Stock will continue to accumulate from the original redemption date to the date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the redemption price and any accumulated and unpaid dividends.
10.3 Partial Redemption. If fewer than all shares of Series C Preferred Stock evidenced by any certificate are being redeemed pursuant to this Third Amended and Restated Certificate of Incorporation, a new certificate shall be issued upon surrender of the certificate evidencing all such Series C Preferred Stock to evidence the unredeemed Series C Preferred Stock, without cost to the holder thereof.
10.4 Effect of Deposit. On the applicable redemption date, if the Corporation shall have deposited funds in trust pursuant toSubsections 5.5, 6.6, 7.5, 8.4 or 9.1, the shares being redeemed out of such funds shall be deemed no longer outstanding from and after the applicable redemption date and shall thereafter represent only the right to receive the applicable redemption price, together with any accumulated and unpaid dividends to the redemption date, without interest, upon surrender of the certificates evidencing such shares by the holders thereof to the place designated by the Corporation.
10.5 Status of Redeemed Stock. Any Series C Preferred Stock that shall at any time have been redeemed shall after such redemption, have the status of authorized but unissued Preferred Stock, without designation as to class or series until such shares are once more designated as part of a particular class or Series C by the Board of Directors.
10.6 Return of Funds Deposited in Trust. Subject to applicable escheat laws, if funds deposited by the Corporation in trust pursuant toSubsections 5.5, 6.6, 7.5, 8.4 or 9.1 remain unclaimed by the holders of shares so redeemed, such funds shall be repaid to the Corporation at the end of three years, and thereafter the holder of any such shares shall look only to the general funds of the Corporation for the payment, without interest, of the redemption price, together with accumulated and unpaid dividends to the applicable redemption date. To the
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extent the aggregate amount of cash deposited by the Corporation pursuant toSubsections 5.5 or 7.5 exceeds the aggregate Change in Control Redemption Price or Redemption Price, as the case may be, of the Series C Preferred Stock to be redeemed, together with accumulated and unpaid dividends to the applicable redemption date, then promptly after the applicable redemption date, any such excess may be returned to the Corporation, on demand.
11. No Voting Rights. Holders of the Series C Preferred Stock will not have any voting rights, except as required by the Act.
12. No Conversion Rights. The holders of Series C Preferred Stock shall not have any rights to convert such shares into shares of any other class or series of stock or into any other securities of, or interest in, the Corporation.
13. No Sinking Fund. No sinking fund shall be established for the retirement or redemption of Series C Preferred Stock.
14. No Preemptive Rights. No holder of Series C Preferred Stock shall, as such holder, have any preemptive rights to purchase or subscribe for additional shares of stock of the Corporation or any other security of the Corporation which it may issue or sell.
15. Holders. The Corporation shall be entitled to treat the holders of record of the Series C Preferred Stock for all purposes as the persons entitled to have and exercise all the rights of an owner of Series Preferred Stock, including but not limited to the right to receive dividends and to receive notices.
(g) Subject to the provisions of applicable law or of the Bylaws of the Corporation with respect to the closing of the transfer books or the fixing of a record date for the determination of stockholders entitled to vote, and except as otherwise provided by law or by the resolution or resolutions providing for the issue of any series of Preferred Stock, the holders of outstanding shares of Common Stock shall exclusively possess the voting power for the election of directors and for all other purposes, each holder of record of shares of Common Stock being entitled to one vote for each share of Common Stock standing in such holder’s name on the books of the Corporation. Shares of capital stock of the Corporation shall not be entitled to cumulative voting.
(h) Notwithstanding any other provisions of this Certificate of Incorporation (and notwithstanding the fact that some lesser percentage may be specified by law or this Certificate of Incorporation), any director or the entire Board of Directors of the Corporation may be removed from office for cause or without cause by the affirmative vote of the holders of outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose, the notice for which states that the purpose or one of the purposes of the meeting is the removal of such director or the entire Board of Directors, as the case may be, and constituting at least a majority of such shares entitled to vote if such removal is for cause, or at least 75% of such shares entitled to vote if such removal is without cause. Notwithstanding the
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foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of the Corporation, the provisions of paragraph (h) of this Article shall not apply with respect to the director or directors elected by such holders of Preferred Stock. For purposes of this Article Fourth, “cause” shall mean, with respect to any director, (i) the willful failure by such director to perform, or the gross negligence of such director in performing, the duties of a director, (ii) the engaging by such director in willful or serious misconduct that is injurious to the Corporation or (iii) the conviction of such director of, or the entering by such director of a plea ofnolo contendereto, a crime that constitutes a felony.
FIFTH: In furtherance and not in limitation of the powers conferred by law, subject to any limitations contained elsewhere in this Certificate of Incorporation, Bylaws of the Corporation may be adopted, amended or repealed by a majority of the Board of Directors of the Corporation, but any Bylaws adopted by the Board of Directors may be amended or repealed by the stockholders entitled to vote thereon. Election of directors need not be conducted by written ballot.
SIXTH: (a) The number of directors of the Corporation shall be fixed from time to time exclusively by the Board of Directors pursuant to resolution adopted by a majority of the directors then in office; provided, however, that the number of directors shall not be less than three (3) nor more than fifteen (15).
(b) Any vacancies in the Board of Directors for any reason, and any directorships resulting from any increase in the number of directors, may be filled only by the Board of Directors (and not by the stockholders), acting by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director. Any directors so chosen shall hold office until the next election of the class for which such directors shall have been chosen and until their successors shall be elected and shall qualify. No decrease in the number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding the foregoing, whenever the holders of any one or more classes or series of Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors at an annual or special meeting of stockholders, the election, terms of office, filling of vacancies, removal of directors and other features of the directorships shall be governed by the terms of this Certificate of Incorporation or in any resolution or resolutions adopted by the Board of Directors providing for the issuance of any class or series of Preferred Stock.
(d) Advance notice of nominations for the election of directors, other than by the Board of Directors or a duly authorized committee thereof or any authorized officer of the Corporation to whom the Board of Directors or such committee shall have delegated such authority, and information concerning nominees, shall be given in the manner provided in the Bylaws of the Corporation.
SEVENTH: A director of the Corporation shall not be personally liable either to the Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the director’s duty of loyalty to the Corporation or its
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stockholders, (ii) for acts or omissions which are not in good faith or which involve intentional misconduct or knowing violation of law, (iii) for any matter in respect of which such director shall be liable under Section 174 of the DGCL or any amendment thereto or successor provision thereto, or (iv) for any transaction from which the director shall have derived an improper personal benefit. Neither amendment nor repeal of this Article SEVENTH nor the adoption of any provision of the Certificate of Incorporation of the Corporation inconsistent with this Article SEVENTH shall eliminate or reduce the effect of this paragraph in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article SEVENTH, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. If the DGCL is amended to eliminate or further limit the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the DGCL.
EIGHTH. Any action required or permitted to be taken by the stockholders of the Corporation may only be effected at a duly called annual or special meeting of the stockholders of the Corporation, and may not be effected by the stockholders in writing in lieu of such a meeting, unless such action by written consent of stockholders is unanimously recommended by the directors of the Corporation then in office.
NINTH. The Corporation shall not be governed by Section 203 of the DGCL (“Section 203”), and the restrictions contained in Section 203 shall not apply to the Corporation.
TENTH. To the fullest extent permitted by Section 122(17) of the DGCL and except as may be otherwise expressly agreed in writing by the Corporation and Summit Partners and its affiliates (collectively, “Summit Partners”), the Corporation, on behalf of itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, business opportunities, which are from time to time presented to Summit Partners or any of its officers, directors, agents, stockholders, members, partners, affiliates and subsidiaries (other than the Corporation and its subsidiaries), even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and no such person shall be liable to the Corporation or any of its subsidiaries for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries unless, in the case of any such person who is a director or officer of the Corporation, such business opportunity is expressly offered to such director or officer in writing solely in his or her capacity as a director or officer of the Corporation. Any person purchasing or otherwise acquiring any interest in any shares of stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article TENTH. Neither the alteration, amendment or repeal of this Article TENTH, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article TENTH, shall eliminate or reduce the effect of this Article TENTH in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article TENTH, would accrue or arise, prior to such alteration, amendment, repeal or adoption.
ELEVENTH. For the avoidance of doubt, for all purposes where the original issuance date of capital stock is taken into consideration under this Third Amended and Restated Certificate of Incorporation, the original date of issuance of any share of capital stock of the Corporation issued in connection with the merger, effected on or about November 23, 2010, of the Corporation with Fortegra Financial Corporation, a Georgia corporation (the “Predecessor”) shall be deemed to be the original date of issuance of the share of capital stock of the Predecessor with respect to which the share of capital stock of the Corporation was issued, and any dividends or other payments made on such shares of capital stock of the Predecessor shall be deemed to have been paid on the corresponding shares of capital stock of the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Third Amended and Restated Certificate, hereby declaring and certifying that this is its act and deed and the facts herein stated are true, and accordingly have hereunto set its hand this [ ] day of [ ], 2010.
FORTEGRA FINANCIAL CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
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