EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
MEDALLION FINANCIAL CORP.
MEDALLION FINANCIAL CORP. (the "Corporation"), a corporation organized and
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existing under and by virtue of the Delaware General Corporation Law, does
hereby certify that the Board of Directors of the Corporation, by a resolution
adopted at a meeting of the Board of Directors of the Corporation on May 22,
1996, and by a written consent of the stockholders of the Corporation dated May
22, 1996, approved and adopted, pursuant to Section 242 of the Delaware General
Corporation Law, this Restated Certificate of Incorporation, which restates,
integrates and amends the Certificate of Incorporation in its entirety pursuant
to Section 245 of the Delaware General Corporation Law. The Certificate of
Incorporation of the Corporation was originally filed with the Secretary of
State of Delaware on October 20, 1995. The full text of the Restated
Certificate of Incorporation is set forth below:
FIRST: The name of the Corporation is Medallion Financial Corp.
SECOND: The registered office of the Corporation in the State of Delaware
is located at 1013 Centre Road, City of Wilmington, County of Newcastle. The
name of its registered agent at such address is The Prentice-Hall Corporation
System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The aggregate number of shares of all classes of stock which the
Corporation is authorized to issue is sixteen million (16,000,000) shares of
which one million (1,000,000) shall be shares of Preferred Stock, par value $.01
per share, (the "Preferred Stock") and fifteen million (15,000,000) shall be
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shares of Common Stock, par value $.01 per share (the "Common Stock").
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Any action required or permitted to be taken by the holders of any class or
series of stock of the Corporation may be taken by written consent or consents
but only if such consent or consents are signed by all holders of the class or
series of stock entitled to vote on such action.
Section 1. Common Stock.
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The powers, preferences, rights, qualifications, limitations and
restrictions relating to the Common Stock are as follows:
a. The Common Stock is junior to the Preferred Stock and is subject to all
the powers, rights, privileges, preferences and priorities of the Preferred
Stock designated herein or in any resolution or resolutions adopted by the Board
of Directors pursuant to authority expressly vested in it by the provisions of
Section 2 of this Article FOURTH.
b. The Common Stock shall have voting rights for the election of directors
and for all other purposes (subject to the powers, rights, privileges,
preferences and priorities of the Preferred Stock as provided above), each
holder of Common Stock being entitled to one vote for each share thereof held by
such holder, except as otherwise required by law.
Section 2. Preferred Stock.
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The Board of Directors is expressly authorized to provide for the issuance
of all or any part of the shares of the Preferred Stock in one or more classes
or series, and to fix for each such class or series such voting powers, full or
limited or fractional, or no voting powers, and such distinctive designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors in
its sole discretion providing for the issuance of such class or series and as
may be permitted by the Delaware General Corporation Law including, without
limitation, (i) whether such shares shall be redeemable, and, if so, the terms
and conditions of such redemption, whether for cash, property or rights,
including securities of any other corporation, and whether at the option of
either the Corporation or the holder or both, including the date or dates or the
event or events upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates; (ii) whether such shares shall be
entitled to receive dividends (which may be cumulative or noncumulative) at such
rates, on such conditions, and at such times, and payable in preference to, or
in such relation to, the dividends payable on any other class or classes or any
other series; (iii) the rights of such shares in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of such shares; (iv) whether
such shares shall be convertible into, or exchangeable for, shares of any other
class or classes of stock, or of any other series of the same or any other class
or classes of stock, whether at the option of either the Corporation or the
holder or both, and, if so, the terms and conditions of such conversion,
including provisions for adjustment of the conversion rate in such events as the
Board of Directors shall determine; (v) whether the class or series shall have a
sinking fund for the redemption or purchase of such shares, and, if so, the
terms and amount of such sinking fund; or (vi) provisions as to any other
voting, optional, and/or special or relative rights, preferences, limitations,
or restrictions; and (vii) the number of shares and designation of such class or
series.
Section 3. Shares Entitled to More or Less Than One Vote.
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If any class or series of the Corporation's capital stock shall be entitled
to more or less than one vote per share, on any matter, every reference in this
Restated Certificate of Incorporation or in any resolution or resolutions
adopted by the Board of Directors pursuant to authority expressly vested in it
by the provisions of Section 2 of this Article FOURTH
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with respect to the Preferred Stock or in any relevant provision of law or in
any rule or regulation, to a majority or other proportion of stock shall be
deemed to refer to such majority or other proportion of the votes of such stock.
FIFTH: In furtherance of, and not in limitation of, the powers conferred
by statute, the Board of Directors is expressly authorized and empowered
a. to manage, or direct the management of, the business and affairs of the
Corporation and to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation subject, nevertheless, to the
provisions of the Delaware General Corporation Law, this Restated Certificate of
Incorporation and the By-Laws of the Corporation, and
b. from time to time to determine to what extent, and at what times and
places, and under what conditions and regulations, the accounts and books of the
Corporation, or any of them, shall be open to inspection by stockholders, and no
stockholder shall have any right to inspect any account, book or document of the
Corporation except as conferred by applicable law.
The Corporation may in its By-Laws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
SIXTH: Subject to the rights of the holders of any class or series of
stock having a preference expressly vested in it by the provisions of Section 2
of Article FOURTH with respect to the Preferred Stock:
a. any action required or permitted to be taken by the stockholders of the
Corporation must be effected only at a duly called annual or special meeting of
stockholders of the Corporation and may not, after the effective date of this
Restated Certificate of Incorporation, be effected by any consent in writing of
such stockholders;
b. special meetings of the stockholders of the Corporation may be called
only (i) by the Chairman of the Board of Directors, (ii) pursuant to a
resolution approved by a majority of the Whole Board (as hereinafter defined),
or (iii) pursuant to a written request of the holders of not less than twenty
percent (20%) of the voting power of the Voting Stock; and
c. the business permitted to be conducted at any special meeting of the
stockholders is limited to the business brought before the meeting (i) by the
Chairman of the Board of Directors, or (ii) at the request of a majority of the
Whole Board, or (iii) as specified in the written request of the holders of not
less than twenty percent (20%) of the voting power of the Voting Stock.
Advance notice of the business to be brought by stockholders before an
annual meeting shall be given by such stockholders in the manner provided in the
By-Laws of the Corporation.
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SEVENTH: Section 1. Number, Election and Terms of Directors.
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Subject to the rights of the holders of any class or series of stock having
a preference expressly vested in it by the provisions of Section 2 of Article
FOURTH with respect to the Preferred Stock, the number of Directors of the
Corporation shall be fixed by the By-Laws of the Corporation and may be
increased or decreased from time to time in such a manner as may be prescribed
by the By-Laws, but in no case shall the number be less than three nor more than
fifteen.
The Directors shall be divided into three classes, as nearly equal in
number as possible. One class of Directors ("Class I") has been initially
elected for a term expiring at the annual meeting of stockholders to be held in
1997, another class ("Class II") has been initially elected for a term expiring
at the annual meeting of stockholders to be held in 1998, and another class
("Class III") has been initially elected for a term expiring at the annual
meeting of stockholders to be held in 1999 with members of each class to hold
office until their successors are elected and qualified. At each succeeding
annual meeting of the stockholders of the Corporation, the successors of the
class of Directors whose term expires at that meeting shall be elected by
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
Section 2. Stockholder Nomination of Director Candidates.
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Advance notice of stockholder nominations for the election of Directors
shall be given by such stockholders in the manner provided in the By-Laws of the
Corporation.
Section 3. Newly Created Directorships and Vacancies.
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Subject to the rights of the holders of any class or series of stock having
a preference expressly vested in it by the provisions of Section 2 of Article
FOURTH with respect to the Preferred Stock, newly created directorships
resulting from any increase in the number of directors and any vacancy on the
Board of Directors resulting from death, resignation, disqualification, removal
or other cause shall be filled solely by the affirmative vote of a majority of
the remaining Directors then in office, even though less than a quorum of the
Board of Directors, or by a sole remaining Director. Any Director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been elected and qualified. No decrease in the number of Directors constituting
the Board of Directors shall shorten the term of an incumbent Director.
Section 4. Removal of Directors.
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Subject to the rights of the holders of any class or series of stock having
a preference expressly vested in it by the provisions of Section 2 of Article
FOURTH with respect to the Preferred Stock, any Director may be removed from
office only by the stockholders in the manner provided in this Section 4 of
Article SEVENTH. At any annual meeting of the stockholders of the Corporation
or at any special meeting of the stockholders of the
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Corporation, the notice of which shall state that the removal of a Director or
Directors is among the purposes of the meeting, the affirmative vote of the
holders of at least seventy-five percent (75%) of the voting power of the Voting
Stock, voting together as a single class, may remove such Director or Directors.
In any vote required by or provided for in this Article SEVENTH, each share of
Voting Stock shall have the number of votes granted to it generally in the
election of Directors.
EIGHTH: A director shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that the elimination or limitation of liability
is not permitted under the Delaware General Corporation Law as in effect when
such liability is determined. No amendment or repeal of this provision shall
deprive a director of the benefits hereof with respect to any act or omission
occurring prior to such amendment or repeal.
NINTH: The Board of Directors of the Corporation, in determining whether
the interests of the Corporation, its subsidiaries and its stockholders will be
served by any offer of another person to (i) make a tender or exchange offer for
any equity security of the Corporation or any subsidiary of the Corporation,
(ii) merge or consolidate the Corporation or any of its subsidiaries with or
into another corporation, or (iii) purchase or otherwise acquire all or
substantially all of the properties and assets of the Corporation or any of its
subsidiaries, may take into account factors in addition to potential economic
benefits to stockholders. Such factors may include, without limitation, (a)
comparison of the proposed consideration to be received by stockholders, in
relation to the then current market price of the capital stock, to the estimated
current value of the Corporation or any of its subsidiaries in a freely
negotiated transaction, and to the estimated future value of the Corporation or
any of its subsidiaries as an independent entity; (b) the impact of such a
transaction on the customers and employees of the Corporation or any of its
subsidiaries, and its effect on the communities in which the Corporation or any
of its subsidiaries operate; and (c) the ability of the Corporation or any of
its subsidiaries to fulfill its objectives and obligations under applicable
statutes and regulations.
The term "offer" as used in this Article NINTH includes every offer to buy
or acquire, solicitation of an offer to sell, tender offer for, or request or
invitation for tender of, a security or interest in a security for value.
TENTH: The Corporation may not purchase any shares of its stock from any
person, entity or group that beneficially owns five percent (5%) or more of the
voting power of the Voting Stock at a price exceeding the average closing price
for the twenty trading business days prior to the purchase date, unless a
majority of the Corporation's Disinterested Stockholders (as hereinafter
defined) approves the transaction. The restrictions on purchases by the
Corporation set forth in this Article TENTH do not apply (i) to any offer to
purchase shares of any class of the Corporation's stock which is made on the
same terms and conditions to all holders of that class of stock, or (ii) to any
purchase of stock owned by such a 5% stockholder occurring more than two years
after such stockholder's last acquisition of the Corporation's stock, or (iii)
to any purchase of the Corporation's stock in accordance with the terms of any
stock option or employee benefit plan, or (iv) to any purchase at prevailing
market prices pursuant to a stock purchase program.
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For purposes of this Article TENTH, the term "Disinterested Stockholders"
means those holders each of whom owns less than five percent (5%) of the voting
power of the Voting Stock.
ELEVENTH: Any vote or votes authorizing liquidation of the Corporation or
proceedings for its dissolution may provide, subject to the rights of creditors
and the rights expressly provided for particular classes or series of stock, for
the distribution pro rata among the stockholders of the Corporation of the
assets of the Corporation, wholly or in part in kind, whether such assets be in
cash or other property, and may authorize the Board of Directors of the
Corporation to determine the valuation of the different assets of the
Corporation for the purpose of such liquidation and may divide or authorize the
Board of Directors to divide such assets or any part thereof among the
stockholders of the Corporation, in such manner that every stockholder will
receive a proportionate amount in value (determined as aforesaid) of cash or
property of the Corporation upon such liquidation or dissolution even though
each stockholder may not receive a strictly proportionate part of each such
asset.
TWELFTH: Business Combinations.
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Section 1. Higher Vote for Business Combinations.
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In addition to any affirmative vote required by law or by this Restated
Certificate of Incorporation, unless a Business Combination (as defined below)
shall have been approved by the affirmative vote of not less than a majority of
the Whole Board, any Business Combination shall require the affirmative vote of
the holders of record of outstanding shares representing at least seventy-five
percent (75%) of the voting power of the Voting Stock, voting together as a
single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or otherwise.
Section 2. No Effect on Fiduciary Obligations.
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Nothing contained in this provision shall be construed to relieve the
members of the Board of Directors from any fiduciary obligations imposed by law.
Section 3. Definition.
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For purposes of this Article TWELFTH "Business Combination" means:
a. any merger or consolidation of the Corporation or any subsidiary; or
b. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) of all or more than
ten percent (10%) of the total assets of the Corporation or any subsidiary, as
of the end of such corporation's recent fiscal year ending prior to the time the
determination is made; or
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c. the issuance or transfer by the Corporation or any subsidiary (in one
transaction or a series of transactions) of any securities of the Corporation or
any subsidiary; or
d. the adoption of any plan or proposal for the liquidation or dissolution
of the Corporation, or any spin-off or split-up of any kind of the Corporation
or any subsidiary; or
e. any reclassification of securities (including any reverse stock split),
or recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any subsidiary or any other transaction which has the effect,
directly or indirectly; of increasing the percentage of the outstanding shares
of (i) any class of equity securities of the Corporation or any subsidiary, or
(ii) any class of securities of the Corporation or any subsidiary convertible
into equity securities of the Corporation or any subsidiary; or
f. any agreement, contract or other arrangement providing for any one or
more of the actions specified in clauses (a) through (e) of Section 3 of this
Article TWELFTH.
Section 4. Section 203 of the Delaware General Corporation Law.
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Nothing in this Article TWELFTH or elsewhere in this Restated Certificate
of Incorporation shall be construed as a waiver of any rights of the Corporation
to the provisions of Section 203 of the Delaware General Corporation Law dealing
with business combinations with interested stockholders; and the Corporation
hereby claims the full benefit of all such provisions or any other similar
provisions heretofore or hereafter enacted as part of the Delaware General
Corporation Law to the fullest extent in addition to the provisions of this
Article TWELFTH.
THIRTEENTH: The By-Laws of the Corporation may be amended, altered,
changed or repealed, and a provision or provisions inconsistent with the
provisions of the By-Laws as they exist from time to time may be adopted, only
by the majority vote of the Whole Board or by the affirmative vote of the
holders of at least seventy-five percent (75%) of the Voting Stock, voting
together as a single class.
FOURTEENTH: The provisions of Section 2 of Article FOURTH and the
provisions of Articles FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, TWELFTH,
THIRTEENTH, and this Article FOURTEENTH shall not be amended, altered, changed
or repealed, and no provision inconsistent with any of them shall be adopted,
except by the affirmative vote of the holders of at least seventy-five percent
(75%) of the voting power of the Voting Stock, voting together as a single
class. The Corporation reserves the right to amend, alter, change, or repeal
any other provision contained in this Restated Certificate of Incorporation in
the manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders are granted subject to this reservation.
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For the purposes of this Restated Certificate of Incorporation, "Voting
Stock" shall mean the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors.
For the purposes of this Restated Certificate of Incorporation, "Whole
Board" shall mean the total number of Directors which the Corporation would have
if there were no vacancies.
This Restated Certificate of Incorporation was duly adopted in accordance
with the applicable provisions of Sections 242, 245 and 228 of the Delaware
General Corporation Law.
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IN WITNESS WHEREOF, Medallion Financial Corp. has caused this Certificate
to be signed by Andrew Murstein, its President this 23rd day of May, 1996.
MEDALLION FINANCIAL CORP.
By: /s/ Andrew Murstein
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Name: Andrew Murstein
Title: President
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