EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SKILLED HEALTHCARE GROUP, INC.
[(ORIGINALLY INCORPORATED AS SHG HOLDING SOLUTIONS, INC.)]
Skilled Healthcare Group, Inc., a corporation organized and existing under
the laws of the State of Delaware (hereinafter referred to as the
"CORPORATION"), hereby certifies as follows:
1. The Corporation filed its original Certificate of Incorporation with the
Secretary of State of the State of Delaware (the "DELAWARE SECRETARY OF STATE")
on October 21, 2005 under the name "SHG Holding Solutions, Inc.," as
subsequently amended by that certain Restated Certificate of Incorporation,
filed on December 27, 2005 with the Delaware Secretary of State and as
subsequently amended by that certain Certificate of Amendment to Restated
Certificate of Incorporation filed on April 26, 2007 with the Delaware Secretary
of State (collectively, the "CERTIFICATE OF INCORPORATION").
2. This Amended and Restated Certificate of Incorporation of the
Corporation (the "AMENDED AND RESTATED CERTIFICATE OF INCORPORATION") has been
duly adopted by action by written consent of the stockholders pursuant to
Section 228 of the Delaware General Corporation Law and in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware by the directors and stockholders of the Corporation. Effective upon
filing with the Delaware Secretary of State, this Amended and Restated
Certificate of Incorporation restates, amends and supercedes the provisions of
the Certificate of Incorporation and all prior amendments and restatements of
the Certificate of Incorporation.
3. The Certificate of Incorporation of the Corporation shall be amended and
restated to read in its entirety as follows:
I.
The name of this corporation is Skilled Healthcare Group, Inc.
II.
The address of the registered office of the Corporation in the State of
Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, in
the City of Wilmington, County of New Castle, and the name of the registered
agent of the Corporation in the State of Delaware at such address is Corporation
Service Company.
III.
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware ("DGCL").
IV.
A. AUTHORIZED CAPITAL STOCK. The total number of shares of stock which the
Corporation has authority to issue is 230,000,000 shares, consisting of:
1) 25,000,000 shares of Preferred Stock; $0.001 par value per share
(the "PREFERRED STOCK");
2) 175,000,000 shares of Class A Common Stock, $0.001 par value per
share (the "CLASS A COMMON STOCK"); and
3) 30,000,000 shares of Class B Common Stock, $0.001 par value per
share (the "CLASS B COMMON STOCK," and together with the Class A
Common Stock, the "COMMON STOCK").
B. PREFERRED STOCK. Subject to the limitations and in the manner provided
by law, the Board of Directors of the Corporation (the "BOARD OF DIRECTORS") or
a duly-authorized committee of the Board of Directors, in accordance with the
laws of the State of Delaware, is hereby authorized to, from time to time,
provide by resolution for the issuance of shares of Preferred Stock in one or
more series and, by filing a certificate of designations pursuant to the
applicable law of the State of Delaware (hereinafter referred to as "PREFERRED
STOCK DESIGNATION"), to establish the number of shares to be included in each
such series, and to fix the designation, powers, preferences and rights of the
shares of each such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following: (i) the
designation of the series, which may be by distinguishing number, letter or
title; (ii) the number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding); provided that, in case the number of shares of any series
shall be so decreased, the shares constituting such decrease shall upon the
taking of any action required by applicable law resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series as well as the number of shares authorized for issuance in each
series; (iii) the amounts or rates at which dividends will be payable on, and
the preferences, if any, of shares of the series in respect of dividends, and
whether such dividends, if any, shall be cumulative or noncumulative; (iv) dates
at which dividends, if any, shall be payable; (v) the redemption rights and
price or prices, if any, for shares of the series; (vi) the terms and amount of
any sinking fund, if any, provided for the purchase or redemption of shares of
the series; (vii) the amounts payable on, and the preferences, if any, of shares
of the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation; (viii) whether the
shares of the series shall be convertible into, or exchangeable, or redeemable
for, shares of any other class or series, or any other security, of the
Corporation or any other Corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made; (ix) the voting
rights, if any, of the holders of shares of the series generally or upon
specified events; and (x) any other rights, powers, preferences of such shares
as are permitted by law.
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C. COMMON STOCK. Certain capitalized terms used in this Article IV, Section
C shall have the meaning given to such terms in Article IV, Section D. Except as
otherwise provided herein or by law, all shares of Common Stock (both shares of
Class A Common Stock and shares of Class B Common Stock), shall be identical in
all respects and shall entitle the holders thereof to the same powers,
privileges and rights, subject to the same qualifications, limitations and
restrictions. Without limiting the foregoing provisions of this paragraph,
whenever any dividend or distribution (including any distribution upon
liquidation, dissolution or winding up of the Corporation or upon the
reclassification of shares or a recapitalization of the Corporation) is made on
the shares of Class A Common Stock, a like dividend or distribution shall be
made on the shares of Class B Common Stock, and, whenever any dividend or
distribution (including any distribution upon liquidation, dissolution or
winding up of the Corporation or upon the reclassification of shares or a
recapitalization of the Corporation) is made on the shares of Class B Common
Stock, a like dividend or distribution shall be made on the shares of Class A
Common Stock; provided, however, that at any time when shares of Class B Common
Stock are outstanding no dividend or other distribution shall be payable in
shares of Class A Common Stock or Class B Common Stock or securities convertible
into, exchangeable for or exercisable to acquire shares of Class A Common Stock
or Class B Common Stock (including a distribution pursuant to a stock split or a
division of such class of stock or a recapitalization of the Corporation),
unless only shares of Class A Common Stock or securities convertible into,
exchangeable for or exercisable to acquire shares of Class A Common Stock shall
be distributed with respect to any outstanding shares of Class A Common Stock
and simultaneously only a like number per share of shares of Class B Common
Stock or securities convertible into, exchangeable for or exercisable to acquire
shares of Class B Common Stock and otherwise in all material respects having the
same powers, privileges and rights as the securities distributed with respect to
the shares of Class A Common Stock shall be distributed with respect to any
outstanding shares of Class B Common Stock. The Corporation shall not subdivide
or combine (by stock split, reverse stock split, recapitalization, merger,
consolidation or other transaction) its shares of Class A Common Stock or Class
B Common Stock, as the case may be, without in the same manner subdividing or
combining its shares of Class B Common Stock or Class A Common Stock,
respectively.
Section 1. Voting Rights.
Except as otherwise provided herein or by law, the holders of shares
of Common Stock shall have the power to vote on all matters on which
stockholders of the Corporation may vote (or to consent in lieu of a vote
at a meeting) and on all matters on which the holders of Common Stock shall
be entitled to vote (or consent in lieu of a vote at a meeting) the holders
of shares of Class A Common Stock and the holders of shares of Class B
Common Stock shall vote together as though holders of a single class of
capital stock (or, if any holders of any other class or series of capital
stock of the Corporation are entitled to vote together with the holders of
Common Stock of any class, as though a single class with the holders of
such other class or series as well as the holders of Common Stock) and
shall have on each such matter the voting powers provided by the following
provisions of this section.
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(a) Holders of Class A Common Stock shall be entitled to one vote for
each share of Class A Common Stock held on all matters on which
holders of Common Stock are entitled to vote.
(b) Holders of Class B Common Stock shall have ten votes for each
share of Class B Common Stock held on all matters on which holders of
Common Stock are entitled to vote, provided that from and after the
Transition Date, holders of Class B Common Stock shall have one vote
for each share of Class B Common Stock held.
(c) In addition to any other voting right or power to which the
holders of Class B Common Stock shall be entitled hereunder or by law,
holders of Class B Common Stock shall be entitled to vote as a
separate class, in addition to any other vote of stockholders that may
be required, on the approval or adoption of (i) any alteration, repeal
or amendment of the certificate of incorporation of the Corporation,
whether by merger, operation of law or otherwise, that would adversely
affect the powers, preferences or rights of the holders of Class B
Common Stock, and (ii) any merger or consolidation of the Corporation
with any other entity if, as a result, a share of Class B Common Stock
would be converted into or exchanged for, or receive, any
consideration that differs from that applicable to a share of Class A
Common Stock as a result of such merger or consolidation, other than a
difference limited to preserving the relative voting power of the
holders of Class A Common Stock and Class B Common Stock. In respect
of any matter as to which the holders of the Class B Common Stock
shall be entitled to a class vote in accordance with this section,
holders shall have one vote for each share of Class B Common Stock
held, and the affirmative vote of the holders of a majority of the
shares of Class B Common Stock then outstanding shall be required for
approval.
(d) In addition to any other voting right or power to which the
holders of Class A Common Stock shall be entitled hereunder or by law,
holders of Class A Common Stock shall be entitled to vote as a
separate class, in addition to any other vote of stockholders that may
be required, on the approval or adoption of (i) any alteration, repeal
or amendment of the certificate of incorporation of the Corporation,
whether by merger, operation of law or otherwise, that would adversely
affect the powers, preferences or rights of the holders of Class A
Common Stock, and (ii) any merger or consolidation of the Corporation
with any other entity if, as a result, a share of Class B Common Stock
would be converted into or exchanged for, or receive, any
consideration that differs from that applicable to a share of Class B
Common Stock as a result of such merger or consolidation, other than a
difference limited to preserving the relative voting power of the
holders of Class A Common Stock and Class B Common Stock. In respect
of any matter as to which the holders of the Class A Common Stock
shall be entitled to a class vote in accordance with this section,
holders shall have one vote for each share of Class A Common Stock
held, and the affirmative vote of the holders of a majority of the
shares of Class A Common Stock then outstanding shall be required for
approval.
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Section 2. Mandatory Conversion and Optional Conversion of Shares of
Class B Common Stock.
(a) Upon the Transfer of a share of Class B Common Stock to any Person
other than a member of the Class B Group, such share of Class B Common
Stock so Transferred shall automatically, and without any notice to or
action by the Corporation, the holder thereof or any other Person
(other than the effectuation of the Transfer), convert into one share
of Class A Common Stock. The Corporation shall not register or
otherwise give effect to a Transfer of shares of Class B Common Stock
referred to in the foregoing sentence without reflecting the
conversion of such shares into shares of Class A Common Stock and, as
soon as practicable after the Corporation has knowledge of any
Transfer of shares of Class B Common Stock as to which conversion of
such shares into shares of Class A Common Stock is required, shall
effectuate the conversion of such shares. For the purpose of
effectuating the conversion of shares of Class B Common Stock into
shares of Class A Common Stock in accordance with the provisions of
this paragraph, the provisions of paragraph (e) of this section shall
apply.
(b) Each holder of Class B Common Stock shall be entitled to convert
at any time, in the manner provided by paragraph (d) of this section,
all or any portion of such holder's Class B Common Stock into shares
of fully paid and non-assessable Class A Common Stock at the ratio of
one share of Class A Common Stock for each share of Class B Common
Stock so converted.
(c) The holders of a majority of the voting power of all the
outstanding shares of Class B Common Stock shall be entitled to cause
the conversion at any time in the manner provided by paragraph (d) of
this section, all, but not less than all, of the outstanding shares of
Class B Common Stock into shares of fully paid and non-assessable
Class A Common Stock at the ratio of one share of Class A Common Stock
for each share of Class B Common Stock so converted. In the event of
any such conversion, each share of Class B Common Stock which is then
outstanding shall automatically, and without any notice to or action
by the Corporation, the holder or any other Person, convert into one
share of Class A Common Stock. For the purpose of effectuating the
conversion of shares of Class B Common Stock into shares of Class A
Common Stock in accordance with the immediately preceding sentence,
the provisions of paragraph (e) of this section shall apply.
(d) The right to convert shares of Class B Common Stock into shares of
Class A Common Stock as provided by paragraph (b) of this section and
the first sentence of paragraph (c) of this section shall be exercised
by the surrender to the Corporation of the certificate or certificates
representing the shares to be converted at any time during normal
business hours at the principal executive offices of the Corporation
or at the office of the Corporation's transfer agent (the "Transfer
Agent"), accompanied by a written notice of the holder of such shares
stating that such holder desires to convert such shares, or a stated
number of the shares represented by such certificate or certificates,
into shares of Class A Common Stock, as shall be
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stated in such notice, and, if certificates representing any of the
shares to be issued upon such conversion are to be issued in a name
other than that of the holder of the share or shares converted,
accompanied by an instrument of transfer, in form satisfactory to the
Corporation and to theTransfer Agent for the Common Shares, duly
executed by such holder or such holder's duly authorized attorney, and
the holder shall at such time also make payment or provision for
payment of any taxes applicable to such Transfer if required by the
following provisions of this subsection. As promptly as practicable
following the surrender for conversion of a certificate representing
shares to be converted with the notice and in the manner provided in
this paragraph, and, in the event the conversion is effected in
connection with a Transfer, the payment of any amount required by the
provisions of this section to be paid by the holder in connection with
such Transfer, the Corporation shall deliver or cause to be delivered
at the office of the Transfer Agent a certificate or certificates
representing. or cause to be registered on its books, the number of
whole shares of Class A Common Stock issuable upon such conversion, in
such name or names as such holder may have directed. The issuance of
certificates for, or registration on the stock transfer books of the
Corporation of, shares upon such a conversion shall be made without
charge to the holders of the shares to be converted for any stamp or
other similar stock transfer or documentary tax assessed in respect of
such issuance; provided, however, that, if any such certificate or
registration is to be issued in a name other than that of the holder
of the share or shares to be converted, then the person or persons
requesting the issuance thereof shall pay to the Corporation the
amount of any tax that may be payable in respect of any Transfer
involved in such issuance or shall establish to the satisfaction of
the Corporation that such tax has been paid or is not payable. Any
such conversion of shares shall be considered to have been effected
immediately prior to the close of business on the date of the
surrender of the certificate or certificates representing the shares
to be converted accompanied by the required notice and payment, if
any. Upon the date any such conversion is deemed effected, all rights
of the holder of the converted shares as such holder shall cease
(except as to matters for which the record date was prior to such
conversion), and the person or persons in whose name or names the
registration of, or certificate or certificates representing, the
shares to be issued upon conversion of the shares surrendered for
conversion shall be treated for all purposes as having become the
record holder or holders of the shares of Class A Common Stock
issuable upon such conversion; provided, however, that,
notwithstanding the foregoing, if any such surrender and payment
occurs on any date when the stock transfer books of the Corporation
shall be closed, the person or persons in whose name or names the
registration of the, or certificate or certificates representing,
shares are to be so issued shall be deemed the record holder or
holders thereof for all purposes immediately prior to the close of
business on the next succeeding day on which the stock transfer books
are open.
(e) In the event of any conversion effected automatically without
notice pursuant to paragraph (a) or paragraph (c) of this section,
until the certificates representing shares which have been converted
shall have been surrendered to the Corporation, such certificates
shall represent the appropriate number of shares of Class A
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Common Stock into which the shares of Class B Common Stock represented
by such certificates shall have been converted or, if not all shares
have been so converted, the appropriate number of shares of Class A
Common Stock into which the shares of Class B Common Stock represented
by such certificates shall have been converted and the appropriate
number of shares of Class B Common Stock represented by such
certificates that have not been so converted. Upon surrender by any
holder of certificates representing shares which have been
automatically converted pursuant to paragraph (a) or paragraph (c) of
this section, the Corporation shall issue to such holder a new
certificate or certificates representing, or cause the Transfer Agent
to record on the Corporation's stock transfer books, the number of
shares of Class A Common Stock into which shares of Class B Common
Stock represented by the surrendered certificates shall have been
converted and, if not all shares of Class B Common Stock represented
by the surrendered certificates have been so converted, the
appropriate number of shares of Class B Common Stock that have not
been so converted; provided that, in the event conversion is effected
in connection with a Transfer, all required stamp and transfer taxes
required to be paid in connection with such Transfer shall have been
paid. Upon conversion of such shares of Class B Common Stock into
shares of Class A Common Stock, all rights of the holder of the
converted shares as such holder shall cease (except as to matters for
which the record date was prior to such conversion), and the holder of
such converted shares and/or such holder's transferee(s) shall be
treated for all purposes as having become the record holder or holders
of the shares of Class A Common Stock issuable upon such conversion.
Any such conversion of shares shall be considered to have been
effected immediately prior to the close of business on the date such
conversion has been automatically effected, or if such automatic
conversion is effected on any date when the stock transfer books of
the Corporation shall be closed, such automatic conversion shall be
considered to have been effected immediately prior to the close of
business on the next succeeding day on which the stock transfer books
are open.
(f) No adjustments in respect of dividends declared and payable on
Common Stock (of any class), or any other security into which shares
of Class B Common Stock or Class A Common Stock shall be convertible,
shall be made upon the conversion of shares of Class B Common Stock or
Class A Common Stock as provided in this section; provided, however,
that, if a share of Common Stock shall be converted subsequent to the
record date for the payment of a dividend or other distribution on the
shares or other security into which such share is convertible but
prior to such payment, then the registered holder of such share at the
close of business on such record date shall be entitled to receive the
dividend or other distribution payable on such share on such date
notwithstanding the conversion thereof or any default in payment of
the dividend or distribution due before the conversion.
(g) In the event of a reclassification of the Class A Common Stock or
the Class B Common Stock, or a recapitalization of the Corporation or
similar transaction, as a result of which the shares of Class A Common
Stock or Class B Common Stock are
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converted into or exchanged for another security, then a holder of
Class B Common Stock or Class A Common Stock, as the case may be,
shall be entitled to receive upon conversion of such holder's shares
where permitted in accordance with the foregoing provisions of this
section the amount per share of such other security that such holder
would have received if such holder had converted any or all of such
holder's shares of Class B Common Stock into Class A Common Stock, as
the case may be, immediately prior to the record date of such
reclassification, recapitalization or similar transaction.
(h) The Corporation shall at all times reserve and keep available out
of its authorized but unissued shares of Class A Common Stock (or any
other security of the Corporation into which the Class B Common Stock
becomes convertible), solely for the purpose of issuance upon
conversion of the outstanding shares of Class B Common Stock, such
number of shares of Class A Common Stock (or any other security of the
Corporation into which the Class B Common Stock becomes convertible)
that shall be issuable upon the conversion of all outstanding shares
of Class B Common Stock.
(i) Shares of Class B Common Stock that are converted into shares of
Class A Common Stock (or another security) as provided herein shall
continue as authorized but unissued shares of Class B Common Stock and
shall be available for reissue by the Corporation; provided, however,
that no shares of Class B Common Stock shall be re-issued at any time
when no shares of Class B Common Stock are outstanding.
Section 3. Dividends.
As and when dividends are declared or paid with respect to shares of
Common Stock, whether in cash, property or securities of the Corporation,
the holders of Common Stock shall be entitled to receive such dividends pro
rata at the same rate per share, except that dividends payable in shares of
Common Stock shall be subject to the first paragraph of Article IV, Section
C. The rights of the holders of Common Stock to receive dividends are
subject to the provisions of the shares of Class A Preferred, the Class B
Preferred and, if any, the shares of any other securities of the
Corporation that by their terms are senior to the Common Stock with respect
to dividends.
Section 4. Liquidation.
Subject to the provisions of the shares of Class A Preferred, the
Class B Preferred and, if any, the shares of any other securities of the
Corporation that by their terms are senior to the Common Stock with respect
to liquidation, the holders of the Common Stock shall be entitled to
participate pro rata at the same rate per share in all distributions made
to the holders of Common Stock in any liquidation, dissolution or winding
up of the Corporation.
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Section 5. Registration of Transfer.
Transfers of record of shares of stock of the Corporation shall be
made only upon its books by the holders thereof, in person or by attorney
duly authorized, and, in the case of stock represented by a certificate,
upon the surrender of a properly endorsed certificate or certificates for a
like number of shares. The Corporation shall keep at its principal office
(or such other place as the Corporation reasonably designates) a register
for the registration of shares of Common Stock. Upon the surrender of any
certificate representing shares of any class of Common Stock at such place,
the Corporation shall, at the request of the record holder of such
certificate, execute and deliver (at the Corporation's expense) a new
certificate or certificates in exchange therefor representing in the
aggregate the number of shares of such class represented by the surrendered
certificate and the Corporation shall forthwith cancel such surrendered
certificate. Each such new certificate shall be registered in such name and
shall represent such number of shares of Common Stock as is requested by
the holder of the surrendered certificate and shall be substantially
identical in form to the surrendered certificate. The issuance of new
certificates shall be made without charge to the holders of the surrendered
certificates for any issuance tax in respect thereof or other cost incurred
by the Corporation in connection with such issuance.
Section 6. Replacement.
Upon receipt of evidence reasonably satisfactory to the Corporation
(provided, that an affidavit of the registered holder will be satisfactory)
of the ownership and the loss, theft, destruction or mutilation of any
certificate evidencing one or more shares of Common Stock, and in the case
of any such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Corporation (provided that if the holder is
a financial institution, institutional investor or member of the Onex
Group, its own agreement will be satisfactory), or, in the case of any such
mutilation upon surrender of such certificate, the Corporation shall (at
its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of shares of Common Stock
represented by such lost, stolen, destroyed or mutilated certificate and
dated the date of such lost, stolen, destroyed or mutilated certificate.
Section 7. Notices.
All notices referred to herein shall be in writing, and shall be
delivered by registered or certificated mail, return receipt requested,
postage paid, and shall be deemed to have been given when so mailed (i) to
the Corporation at its principal executive offices and (ii) to any
stockholder at such holder's address as it appears in the stock records of
the Corporation (unless otherwise specified in a written notice to the
Corporation by such holder).
Section 8. Amendment and Waiver.
No amendment or waiver of any provision of this Part C shall be
effective without the prior consent of the holders of a majority of the
then outstanding shares of Common Stock voting as a single class.
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D. DEFINITIONS.
"AFFILIATE" means, with respect to any Person, (a) any director or
executive officer of such Person, (b) any spouse, parent, sibling,
descendant or trust for the exclusive benefit of such Person or his or her
spouse, parent, sibling or descendant (or the spouse, parent, sibling or
descendant of any director or executive officer of such Person), and (c)
any other Person that, directly or indirectly, controls or is controlled by
or is under common control with such Person. For the purpose of this
definition, (i) "control" (including with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used
with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, status as a general partner, or by contract or otherwise and
(ii) Onex and Onex Partners shall be deemed to control any Person (A)
controlled by Gerald W. Schwartz so long as Mr. Schwartz controls Onex or
(B) if Onex has sole or shared "voting power" or "investment power," as
those terms are defined in the rules of the Securities and Exchange
Commission, over the Class B Common Stock held by such Person.
"CLASS B GROUP" means (i) all members of the Onex Group, (ii) all
Management Investors and (iii) any other Person who obtained Class B Common
Stock upon the recapitalization of the Corporation's Common Stock into
Class B Common Stock (and their respective Affliliates).
"MANAGEMENT INVESTOR" means any member of the Board of Directors of
the Corporation and any individual employed by the Corporation or any
subsidiary of the Corporation, in each case, that received Class B Common
Stock upon the recapitalization of the Corporation's Common Stock into
Class B Common Stock and any Affiliate of such individual employee or
director to whom such individual employee or director Transfers Common
Stock.
"ONEX" means Onex Corporation, a corporation organized and existing
under the laws of the Province of Ontario, Canada and any successor to all
or substantially all of the assets and business thereof.
"ONEX GROUP" means Onex, Onex Partners and any controlled Affiliate of
Onex or Onex Partners, each of which shall be considered "a member of the
Onex Group" for purposes hereof.
"ONEX PARTNERS" means Onex Partners LP, a limited partnership
organized under the laws of the State of Delaware, and any successor to all
or substantially all the assets and business thereof.
"PERSON" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
"TRANSFER" means, with respect to shares of Common Stock, to sell,
assign, donate, contribute, place in trust (including a voting trust), or
otherwise voluntarily or
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involuntarily dispose of, directly or indirectly, such shares, but shall
not include the creation of a security interest in or pledge of such
shares.
"TRANSITION DATE" means the first time, if any, that the total number
of outstanding shares of Class B Common Stock is less than 10% of the total
number of shares of Common Stock outstanding.
V.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its Board of Directors and of its stockholders or
any class thereof, as the case may be, it is further provided that:
A. BOARD OF DIRECTORS.
1) POWERS; NUMBER OF DIRECTORS. The management of the business and the
conduct of the affairs of the Corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the whole Board of
Directors shall be fixed by the Board of Directors in the manner provided in the
bylaws of the Corporation.
2) ELECTION OF DIRECTORS. Subject to the rights of the holders of any
series of Preferred Stock to elect additional directors under specified
circumstances, the Board of Directors shall be divided into three classes,
designated Class I, Class II and Class III, with directors initially assigned to
each class by resolution adopted by a majority of the members of the Board of
Directors. At the first annual meeting of stockholders following the closing of
the Corporation's initial public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of Common Stock to the public (the "INITIAL PUBLIC OFFERING"), the term of
office of the Class I directors shall expire and new Class I directors shall be
elected for a full term of three years. At the second annual meeting of
stockholders following the Initial Public Offering, the term of office of the
Class II directors shall expire and new Class II directors shall be elected for
a full term of three years. At the third annual meeting of stockholders
following the Initial Public Offering, the term of office of the Class III
directors shall expire and new Class III directors shall be elected for a full
term of three years. At each succeeding annual meeting of stockholders,
directors shall be elected for a full term of three years to succeed the
directors of the class whose terms expire at such annual meeting.
If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain a number of directors
in each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. To the extent reasonably possible, consistent
with the foregoing, any newly created directorships shall be added to those
classes whose terms of office are to expire at the latest dates following such
allocation and newly eliminated directorships shall be subtracted from those
classes whose terms of office are to expire at the earliest dates following such
allocation,
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unless otherwise provided for from time to time by resolution adopted by a
majority of the members of the Incumbent Board then in office, although less
than a quorum.
A director shall hold office until the annual meeting for the
year in which his or her term expires and until his or her successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
3) REMOVAL OF DIRECTORS.
A. Prior to the Transition Date, subject to the rights of the
holders of any series of Preferred Stock, the Board of Directors, and each
individual director, may be removed, with or without cause, by the holders of a
majority of the voting power of the Corporation entitled to vote at an election
of directors. Subject to the rights of the holders of any series of Preferred
Stock, neither the Board of Directors nor any individual director may be removed
without cause.
B. Subject to any limitation imposed by law, any director may be
removed with cause by the holders of at least 66 2/3% of the voting power of the
Corporation entitled to vote at an election of directors.
4) VACANCIES. Subject to the rights of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal or other causes and any newly
created directorships resulting from any increase in the number of directors,
shall be filled by the vote of a majority of the members of the directors then
in office, even though less than a quorum of the Board of Directors, and not by
the stockholders. Subject to the rights of the holders of any series of
Preferred Stock, in the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled. Any director
elected in accordance with this section shall hold office for the remainder of
the full term of the director for which the vacancy was created or occurred and
until such director's successor shall have been elected and qualified.
B. ACTION BY STOCKHOLDERS.
1) Meetings of stockholders shall be held at any place, within or
outside the State of Delaware, designated by the Board of Directors. In the
absence of such designation, stockholders' meetings shall be held at the
registered office of the Company.
2) The annual meeting of stockholders shall be held on such date, and
at such time and place, either within or outside the State of Delaware, as may
be designated by resolution of the Board of Directors each year. At the annual
meeting of stockholders, directors shall be elected and any proper business may
be transacted.
3) Special meetings of the stockholders of the Corporation, for any
purpose or purposes, may be called at any time by a majority of the Board of
Directors, the Chairman of the Board of Directors or the Chief Executive Officer
of the Corporation. Special meetings of the stockholders of the Corporation may
not be called by any other person or persons.
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4) Following the Transition Date, no action shall be taken by the
stockholders of the Corporation except at a duly called annual or special
meeting of the stockholders of the Corporation.
5) Following the Transition Date, no action shall be taken by the
stockholders by written consent in lieu of a meeting.
6) Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
bylaws of the Corporation, provided that prior to the Transition Date, no such
requirement for advance notice of nominations or other business shall apply to a
holder of at least 10% of the outstanding Class B Common Stock.
7) The chairman of any meeting of stockholders, as determined by the
Board of Directors, shall determine the order of business and the procedure at
the meeting, including the manner of voting and the conduct of business.
C. BYLAWS
1) In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized to
make, adopt, alter, amend, change or repeal the bylaws of the Corporation by
resolutions adopted by the affirmative vote of a majority of the entire Board of
Directors, subject to any bylaw requiring the affirmative vote of a larger
percentage of the members of the Board of Directors.
2) Stockholders may not make, adopt, alter, amend, change or repeal
the bylaws of the Corporation except upon the affirmative vote of at least
66 2/3% of the votes entitled to be cast by the holders of all outstanding
shares then entitled to vote generally in the election of directors, voting
together as a single class.
VI.
The Corporation is to have perpetual existence.
VII.
A. The personal liability of the directors of the Corporation is hereby
eliminated to the fullest extent permitted by the DGCL, including, without
limitation, paragraph (7) of subsection (b) of Section 102 thereof, as the same
may be amended or supplemented.
B. If the DGCL is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
C. The Corporation shall have the power, to the fullest extent permitted by
Section 145 of the DGCL, as the same may be amended or supplemented, to
indemnify any person by reason of the fact that the person is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer,
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employee or agent of another corporation, partnership, joint venture, trust or
other enterprise from and against any and all of the expenses, liabilities or
other matters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
D. Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of this Corporation's Amended and Restated Certificate of
Incorporation inconsistent with this Article VII, shall eliminate or reduce the
effect of this Article VII in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article VII, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
VIII.
Until the Transition Date, the Corporation shall not be governed by Section
203 of the DGCL.
IX.
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon the stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, no amendment, alteration, change or repeal may be
made to Article V, Article VII or this Article IX without the affirmative vote
of the holders of at least 66 2/3% of the outstanding voting power of the
Corporation, voting together as a single class.
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IN WITNESS WHEREOF, the undersigned officers of the Corporation have
executed this Amended and Restated Certificate of Incorporation as of the 18th
day of May, 2007.
/s/ John E. King
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John E. King
Treasurer and Chief Financial Officer
/s/ Roland Rapp
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Roland Rapp
Secretary