EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FRANKLIN CAPITAL CORPORATION
Franklin Capital Corporation (the "CORPORATION"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL"), does hereby certify as follows:
FIRST: The name of the Corporation is Franklin Capital Corporation.
SECOND: The Corporation's original Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on March 31, 1987,
under the name The Franklin Holding Corporation (Delaware).
THIRD: The Amended and Restated Certificate of Incorporation of this
Corporation, in the form attached hereto as EXHIBIT A, has been duly adopted by
the Board of Directors and stockholders in accordance with the provisions of
Sections 228, 242 and 245 of the DGCL.
FOURTH: The Amended and Restated Certificate of Incorporation so
adopted reads in full as set forth in EXHIBIT A attached hereto and is hereby
incorporated by reference.
IN WITNESS WHEREOF, Franklin Capital Corporation has caused this
Amended and Restated Certificate of Incorporation to be signed by its Chairman
and Chief Executive Officer this 25th day of October, 2004.
FRANKLIN CAPITAL CORPORATION
By: /s/ Milton "Todd" Ault III
------------------------------------
MILTON "TODD" AULT III
Chairman and Chief Executive Officer
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FRANKLIN CAPITAL CORPORATION
I.
The name of this Corporation is Franklin Capital Corporation.
II.
The address of its registered office in the State of Delaware is 1209
Orange Street in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
III.
The purpose of this Corporation is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
IV.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "COMMON STOCK" and "PREFERRED STOCK". The total number
of shares which the Corporation is authorized to issue is 60,000,000 shares, of
which (i) 50,000,000 shares shall be Common Stock, each having a par value of
$1.00, and (ii) 10,000,000 shares shall be Preferred Stock, each having a par
value of $1.00.
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby expressly authorized to: (i) provide
for the issuance of all or any of the remaining shares of the Preferred Stock in
one or more series; (ii) fix or alter from time to time the designation, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations or restrictions of any wholly unissued series of Preferred Stock;
(iii) establish from time to time the number of shares constituting any such
series or any of them; and (iv) increase or decrease the number of shares of any
series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be decreased in accordance with the foregoing sentence, the
shares constituting such decrease shall resume the status that they had prior to
the adoption of the resolution originally fixing the number of shares of such
series.
C. Each outstanding share of Common Stock shall entitle the holder thereof
to one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; PROVIDED, HOWEVER, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of Preferred Stock if the
holders of such affected
1.
series of Preferred Stock are entitled, either separately or together as a class
with the holders of one or more other series of Preferred Stock, to vote thereon
by law or pursuant to this Certificate of Incorporation (including any
certificate of designation filed with respect to any series of Preferred Stock).
D. SERIES A PREFERRED STOCK. Of the authorized number of shares of
Preferred Stock, 500,000 shares shall be designated as "Series A Convertible
Preferred Stock" (the "SERIES A PREFERRED STOCK") with the following voting
powers, preferences and relative participating, optional and other special
rights and qualifications, limitations and restrictions:
1. RANKING. The Series A Preferred Stock shall, with respect to
distributions upon the liquidation, winding-up and dissolution of the
Corporation, rank: (i) senior to all classes of Common Stock of the Corporation
and to each other class of capital stock or series of Preferred Stock other than
the Series A Preferred Stock issued by the Corporation after the first date upon
which shares of Series A Preferred Stock were originally issued by the
Corporation (the "INITIAL CLOSING DATE"), the terms of which do not expressly
provide that it ranks senior to or on a parity with the Series A Preferred Stock
as to dividend distributions and distributions upon the liquidation, winding-up
and dissolution of the Corporation (collectively referred to with the Common
Stock of the Corporation as "JUNIOR SECURITIES"); (ii) on a parity with any
additional shares of Series A Preferred Stock issued by the Corporation after
the Initial Closing Date and any other class of capital stock or any additional
series of preferred stock issued by the Corporation established after the
Initial Closing Date by the Board of Directors, the terms of which expressly
provide that such class or series will rank on a parity with the Series A
Preferred Stock as to dividend distributions and distributions upon the
liquidation, winding-up and dissolution of the Corporation (collectively
referred to as "PARITY SECURITIES"); and (iii) junior to each class of capital
stock or series of Preferred Stock other than the Series A Preferred Stock
issued by the Corporation after the Initial Closing Date by the Board of
Directors, the terms of which expressly provide that such class or series will
rank senior to the Series A Preferred Stock as to dividend distributions and
distributions upon the liquidation, winding-up and dissolution of the
Corporation (collectively referred to as "SENIOR SECURITIES"). Notwithstanding
the foregoing, a security shall not be deemed to be a "Senior Security" solely
because such security has a stated dividend or interest coupon.
2. DIVIDENDS.
A. So long as any shares of Series A Preferred Stock shall be
outstanding, the holders of such Series A Preferred Stock shall be entitled to
receive out of any funds legally available therefor, when, as and if declared by
the Board of Directors of the Corporation, preferential dividends in cash at a
rate of 7% per annum on the Liquidation Preference (as defined below) hereunder,
payable quarterly on the first day other than a Saturday, a Sunday, or any day
on which banking institutions in New York, New York are required or authorized
by law or other governmental action to be closed (a "BUSINESS DAY") of each
calendar quarter on a pro rata basis with any Parity Securities. Such dividends
shall be cumulative and begin to accrue from the date of issuance of such
shares, whether or not declared and whether or not there shall be net profits or
net assets of the Corporation legally available for the payment of those
dividends.
B. So long as any shares of Series A Preferred Stock shall be
outstanding, no dividend whatsoever (except a dividend payable in Common Stock)
shall be paid or declared and no distribution shall be made, on account of any
Junior Securities of the Corporation and no Junior Securities shall be purchased
unless (i) all dividends in respect of the Series A Preferred Stock for all past
and current dividend periods have been paid and all amounts in respect of the
redemption of the Series A Preferred Stock required to be paid herein have been
paid in full and (ii) such Junior Securities have an "asset coverage" (as such
term is used under the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT")) of at least 200% after deducting the amount of such
dividend, distribution or purchase price, as the case may be.
3. CONVERSION RIGHTS.
A. OPTIONAL CONVERSION OF SERIES A PREFERRED STOCK INTO COMMON
STOCK. A holder of shares of Series A Preferred Stock may, at any time prior to
the tenth anniversary of the Initial Closing Date, convert such shares into
Common Stock, unless previously redeemed, at the option of the holder thereof.
The Series A Preferred Stock will cease to be convertible after the tenth
anniversary of the Initial Closing Date. For the purposes of conversion, each
share of Series A Preferred Stock shall be valued at the Liquidation Preference,
which shall be divided by the greater of $20 or a rate equal to 15% above the
average closing price for the ten consecutive days on which the American Stock
Exchange or other applicable stock exchange or market is open for business
(each, a "TRADING DAY") prior to the Initial Closing Date (the "CONVERSION
RATE") to determine the number of shares of Common Stock issuable upon
conversion. Immediately following such conversion, the rights of the holders of
converted Series A Preferred Stock shall cease and the persons entitled to
receive the Common Stock upon the conversion of Series A Preferred Stock shall
be treated for all purposes as having become the owners of such Common Stock.
B. MECHANICS; TRANSFER TAX; CONVERSION RATE.
(I) To convert the Series A Preferred Stock, a holder
must (A) surrender the certificate or certificates evidencing the shares of
Series A Preferred Stock to be converted, duly endorsed in a form satisfactory
to the Corporation, at the office of the Corporation or the transfer agent, if
any, for the Series A Preferred Stock (the "TRANSFER AGENT"), (B) notify the
Corporation at such office that holder elects to convert the Series A Preferred
Stock and the number of shares holder wishes to convert, (C) state in writing
the name or names in which holder wishes the certificate or certificates for
shares of Common Stock to be issued, and (D) pay any transfer or similar tax if
required by subparagraph (iii) below. In the event that holder fails to notify
the Corporation of the number of shares of Series A Preferred Stock which holder
wishes to convert, holder shall be deemed to have elected to convert all shares
represented by the certificate or certificates surrendered for conversion. The
date on which any such holder satisfies all those requirements is the
"CONVERSION DATE". As soon as practicable thereafter, the Corporation shall
deliver a certificate for the number of full shares of Common Stock issuable
upon the conversion, and a new certificate representing the unconverted portion,
if any, of the shares of Series A Preferred Stock represented by the certificate
or certificates surrendered for conversion. The person in whose name the Common
Stock certificate is registered shall be treated as the stockholder of record on
and after the Conversion Date.
(II) The Corporation shall not issue any fractional
shares of Common Stock upon conversion of the Series A Preferred Stock. Instead
the Corporation shall pay a cash adjustment based upon the closing price of the
Common Stock on the principal securities exchange on which the Common Stock is
then listed on the Business Day prior to the Conversion Date.
(III) If a holder converts shares of Series A Preferred
Stock, the Corporation shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the holder shall pay any such tax that is due because the shares are
issued in a name other than the holder's name.
(IV) The Corporation has reserved and shall continue to
reserve out of its authorized but unissued Common Stock, or its Common Stock
held in treasury, enough shares of Common Stock to permit the conversion, in
full, of the Series A Preferred Stock to Common Stock. All shares of Common
Stock that may be issued upon conversion of the Series A Preferred Stock shall
be fully paid and nonassessable. The Corporation shall endeavor to comply with
all securities laws regulating the offer and delivery of shares of Common Stock
upon conversion of the Series A Preferred Stock and shall endeavor to list such
shares of Common Stock on each national securities exchange or automated
quotation system on which the Common Stock is then listed.
(V) In case the outstanding shares of Common Stock shall
be subdivided into a greater number of shares of Common Stock, the Conversion
Rate shall be reduced, and, conversely, in case the outstanding shares of Common
Stock shall be combined into a smaller number of shares of Common Stock, the
Conversion Rate shall be increased by the product of the Conversion Rate and a
fraction the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination, as the case
may be, and the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such subdivision or combination, as the case
may be. Such reduction or increase, as the case may be, shall become effective
immediately after the opening of business on the Business Day following the day
upon which such subdivision or combination becomes effective.
(VI) If the Corporation at any time while the Series A
Preferred Stock, or any portion thereof, remains outstanding, shall change any
of the securities as to which conversion rights under this Amended and Restated
Certificate of Incorporation exist into the same or a different number of
securities of any other class or classes, the Series A Preferred Stock shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the conversion rights under this Amended and
Restated Certificate of Incorporation immediately prior to such reclassification
or other change and the Conversion Rate of the Series A Preferred Stock shall be
appropriately adjusted.
(VII) Shares issuable on conversion of shares of Series
A Preferred Stock shall include only shares of the class designated as Common
Stock of the Corporation on the Initial Closing Date or shares of any class or
classes resulting from any reclassification thereof and which have no
preferences in respect of dividends or amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation and which are not subject to redemption by the
Corporation; provided that, if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
(VIII) No adjustment in the Conversion Rate shall reduce
the Conversion Rate below the then par value of the Common Stock.
(IX) Whenever the Conversion Rate is adjusted, the
Corporation shall promptly mail to holders of Series A Preferred Stock, first
class, postage prepaid, a notice of the adjustment. The Corporation shall file
with the Transfer Agent for the Series A Preferred Stock, if any, a certificate
from the Corporation's chief financial officer briefly stating the facts
requiring the adjustment and the manner of computing it. In the event of any
dispute thereon, the opinion of the Corporation's independent public
accountants, if accepted by the Board of Directors of the Corporation, shall be
conclusive and binding on the holders of the Series A Preferred Stock absent
manifest error.
(X) The Corporation from time to time may reduce the
Conversion Rate if it considers such reductions to be advisable in order that
any event treated for federal income tax purposes as a dividend of stock or
stock rights will not be taxable to the holders of Common Stock by any amount.
(XI) If:
(A) the Corporation takes any action which would
require an adjustment in the Conversion Rate pursuant to paragraph 3(b)(v) or
3(b)(vi) above;
(B) the Corporation consolidates or merges with,
or transfers all or substantially all of its assets to, another corporation
(other than a wholly owned subsidiary of the Corporation), and stockholders of
the Corporation must approve the transaction; or
(C) there is a dissolution or liquidation of the
Corporation;
the Corporation shall mail to the holders of the Series A Preferred
Stock, first class, postage prepaid, a notice stating the proposed record or
effective date, as the case may be. The Corporation shall mail the notice at
least 10 days before such date. However, failure to mail the notice or any
defect in it shall not affect the validity of any transaction referred to in
subparagraph (a), (b) or (c) of this paragraph 3(b)(xi).
(XII) In the case of any consolidation of the
Corporation or the merger of the Corporation with or into any other entity or
the sale or transfer of all or substantially all the assets of the Corporation
pursuant to which the Common Stock is converted into other securities, cash or
assets, then, upon consummation of such transaction, each share of Series A
Preferred Stock shall automatically become convertible into the kind and amount
of
securities, cash or other assets receivable upon the consolidation, merger, sale
or transfer by a holder of the number of shares of Common Stock into which such
share of Series A Preferred Stock might have been converted immediately prior to
such consolidation, merger, transfer or sale (assuming such holder of Common
Stock failed to exercise any rights of election and received per share the kind
and amount of consideration receivable per share by a plurality of non electing
shares). Appropriate adjustment (as determined by the Board of Directors of the
Corporation) shall be made in the application of the provisions herein set forth
with respect to the rights and interests thereafter of the holders of Series A
Preferred Stock, to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustment of the Conversion
Rate) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other securities or property thereafter
deliverable upon the conversion of Series A Preferred Stock. If this paragraph
3(b)(xii) applies, paragraph 3(b)(v) and 3(b)(vi) do not apply.
(XIII) In any case in which this paragraph 3 shall
require that an adjustment as a result of any event becomes effective from and
after a record date, the Corporation may elect to defer until after the
occurrence of such event the issuance to the holder of any shares of Series A
Preferred Stock converted after such record date and before the occurrence of
such event of the additional shares of Common Stock issuable upon such
conversion over and above the shares issuable on the basis of the Conversion
Rate in effect immediately prior to adjustment; PROVIDED, HOWEVER, that if such
event shall not have occurred and authorization of such event shall be rescinded
by the Corporation, the Conversion Rate shall be recomputed immediately upon
such rescission to the price that would have been in effect had such event not
been authorized, provided that such rescission is permitted by and effective
under applicable laws.
4. LIQUIDATION PREFERENCE. Upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation or reduction or
decrease in its capital stock resulting in a distribution of assets to the
holders of any class or series of the Corporation's capital stock, each holder
of shares of the Series A Preferred Stock will be entitled to payment out of the
assets of the Corporation available for distribution of an amount equal to $100
per share of Series A Preferred Stock (the "LIQUIDATION PREFERENCE") held by
such holder, plus accrued and unpaid dividends, if any, to the date fixed for
liquidation, dissolution, winding-up or reduction or decrease in capital stock,
before any distribution is made on any Junior Securities, including, without
limitation, Common Stock of the Corporation. After payment in full of the
Liquidation Preference and all accrued and unpaid dividends, if any, to which
holders of Series A Preferred Stock are entitled, such holders will not be
entitled to any further participation in any distribution of assets of the
Corporation. If, upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the amounts payable with respect to the Series A
Preferred Stock and all other Parity Securities are not paid in full, the
holders of the Series A Preferred Stock and the Parity Securities will share
equally and ratably in any distribution of assets of the Corporation in
proportion to the full liquidation preference and accumulated and unpaid
dividends, if any, to which each is entitled. However, neither the voluntary
sale, conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of the property or assets of
the Corporation nor the consolidation or merger of the Corporation with or into
one or more individuals, partnerships, companies, associations, joint stock
companies, limited liability companies, trusts, joint ventures, unincorporated
organizations or governmental authorities (each, a "PERSON") will be deemed to
be a voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation or reduction or decrease in capital stock, unless such sale,
conveyance, exchange or transfer shall be in connection with a liquidation,
dissolution or winding-up of the business of the Corporation or reduction or
decrease in capital stock.
5. REDEMPTIONS.
A. The Series A Preferred Stock shall not be redeemed by the
Corporation prior to the first anniversary of the Initial Closing Date.
B. The Series A Preferred Stock may be redeemed by the
Corporation at any time on or after the one-year anniversary of the Initial
Closing Date, in whole or in part, on a pro rata basis, if at any time on or
after the Initial Closing Date the average trading price of the Common Stock for
at least twenty days during any thirty consecutive Trading Days is equal to or
in excess of 150% of the Conversion Rate; PROVIDED, HOWEVER, that the holders of
the Series A Preferred Stock shall have the right, up until 5 p.m., New York
time, on the third Business Day preceding the Redemption Date to convert the
Series A Preferred Stock to Common Stock at the Conversion Rate. If any holder
fails to convert the Series A Preferred Stock during the period contemplated
above, the Corporation may redeem the Series A Preferred Stock in cash at a
price per share equal to the Liquidation Preference plus any accrued and unpaid
dividends thereon through to the date of such redemption plus any dividends
which were scheduled to accrue thereon up through the end of the calendar year
of such redemption.
C. The Series A Preferred Stock may be redeemed by the
Corporation at any time on or after the three-year anniversary of the Initial
Closing Date (whether or not the circumstances described in subparagraph (b)
shall have occurred prior to such time), at a redemption price in cash equal to
the Liquidation Preference per share of Series A Preferred Stock plus any
accrued and unpaid dividends thereon through the date of such redemption.
D. At least 15 Business Days prior to the date fixed for any
redemption of the Series A Preferred Stock (the "REDEMPTION DATE"), written
notice (the "REDEMPTION NOTICE") shall be given by first-class mail, postage
prepaid, to each holder of record on the record date fixed for such redemption
of the Series A Preferred Stock at such holder's address as the same appears on
the stock register of the Corporation, provided that failure to give such notice
or any deficiency therein shall not affect the validity of the procedure for the
redemption of any shares of Series A Preferred Stock to be redeemed except as to
the holder or holders to whom the Corporation has failed to give said notice or
except as to the holder or holders whose notice was defective. The Redemption
Notice shall state:
(I) whether the redemption is pursuant to subparagraph
(b) or (c) hereof;
(II) the redemption price;
(III) whether all or less than all the outstanding
shares of the Series A Preferred Stock are to be redeemed and the total number
of shares of the Series A Preferred Stock being redeemed;
(IV) the number of shares of Series A Preferred Stock
held, as of the appropriate record date, by the holder that the Corporation
intends to redeem;
(V) the Redemption Date;
(VI) that the holder has the right to convert the Series
A Preferred Stock to Common Stock until 5 p.m., New York time, on the third
Business Day preceding the Redemption Date by complying with the provisions of
Section 3 hereof;
(VII) that the holder is to surrender to the
Corporation, at the place or places where certificates for shares of Series A
Preferred Stock are to be surrendered for redemption, in the manner and at the
price designated, its certificate or certificates representing the shares of
Series A Preferred Stock to be redeemed; and
(VIII) that dividends on the shares of the Series A
Preferred Stock to be redeemed shall cease to accrue on the Redemption Date
unless the Corporation defaults in the payment of the redemption price.
E. Each holder of Series A Preferred Stock shall surrender the
certificate or certificates representing such shares of Series A Preferred Stock
to the Corporation, duly endorsed, in the manner and at the place designated in
the Redemption Notice and on the date of redemption. The full redemption price
for such shares of Series A Preferred Stock shall be payable in cash to the
Person whose name appears on such certificate or certificates as the owner
thereof, and each surrendered certificate shall be canceled and retired. In the
event that less than all of the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares.
F. Unless the Corporation defaults in the payment in full of
the applicable redemption price, dividends on the Series A Preferred Stock
called for redemption shall cease to accumulate on the Redemption Date, and the
holders of such redeemed shares shall cease to have any further rights with
respect thereto from and after the Redemption Date, other than the right to
receive the redemption price, without interest.
6. VOTING RIGHTS.
A. The holders of Series A Preferred Stock shall be entitled
to notice of all stockholders meetings in accordance with the Corporation's
bylaws and the DGCL, and except as otherwise required by applicable law, the
holders of the Series A Preferred Stock shall be entitled to vote on all matters
submitted to the stockholders for a vote, voting together with the holders of
the Common Stock as a single class, with each share of Series A Preferred Stock
entitled to one vote per share.
B. The holders of the Series A Preferred Stock, voting
separately as one class, shall have the right to elect (i) two directors at all
times during which the Series A Preferred Stock is outstanding and (ii) a
majority of the directors, if at any time dividends on the Series A Preferred
Stock shall be unpaid in an amount equal to two full years' dividends on such
securities, and to continue to be so represented until all dividends in arrears
shall have been paid or otherwise provided for (subject, however to the prior
rights, if any, of the holders of any class
of Senior Securities outstanding.) If any vacancies shall exist in the offices
of directors elected by the holders of the Series A Preferred Stock, such
vacancy shall be filled as follows:
(I) Upon the written request of the holders of record of
at least 25% of the shares of Series A Preferred Stock then outstanding
addressed to the Secretary of the Corporation, a proper officer of the
Corporation shall call a special meeting of the holders of Series A Preferred
Stock for the purpose of electing the directors which such holders are entitled
to elect. If such meeting shall not be called by the proper officer of the
Corporation within 30 days after personal service of said written request upon
the Secretary of the Corporation, or within 30 days after mailing the same
within the United States by certified mail, addressed to the Secretary of the
Corporation at its principal executive offices, then the holders of record of at
least 25% of the outstanding shares of the Series A Preferred Stock may
designate in writing one of their number to call such meeting at the expense of
the Corporation, and such meeting may be called by the Person so designated upon
the notice required for the annual meetings of stockholders of the Corporation
and shall be held at the place for holding the annual meetings of stockholders
or such other place in the United States as shall be designated in such notice.
Notwithstanding the provisions of this subparagraph, no such special meeting
shall be called if any such request is received less than 60 days before the
date fixed for the next ensuing annual or special meeting of stockholders of the
Corporation. Any holder of shares of the Series A Preferred Stock so designated
shall have, and the Corporation shall provide, access to the lists of holders of
shares of the Series A Preferred Stock for purposes of calling a meeting
pursuant to the provisions of this subparagraph.
(II) At any meeting held for the purpose of electing
directors at which the holders of Series A Preferred Stock shall have the right
to elect directors, the presence in person or by proxy of the holders of at
least a majority of the holders of the Series A Preferred Stock present at such
meeting, or represented by proxy, shall have the right to elect directors.
(III) Any vacancy occurring in the office of a director
elected by the holders of the Series A Preferred Stock may be filled by the
remaining director elected by such holders unless and until such vacancy shall
be filled by such holders.
C. The Corporation shall not, without the affirmative vote or
consent of the holders of at least a majority of the shares of Series A
Preferred Stock then outstanding voting as one class:
(I) amend or otherwise alter this Amended and Restated
Certificate of Incorporation in any manner that under the DGCL or the Investment
Company Act requires the prior vote as a separate class of the holders of Series
A Preferred Stock;
(II) take any action which detracts from the voting
powers, preferences and relative, participating, optional and other special
rights, and qualifications, limitations, and restrictions of the Series A
Preferred Stock; PROVIDED, HOWEVER, that the Corporation shall be entitled,
without the consent of any holders of Series A Preferred Stock, to make
additional issuances of Series A Preferred Stock, Senior Securities, Parity
Securities or Junior Securities;
(III) waive compliance with any provision of paragraph D
of Article IV of this Amended and Restated Certificate of Incorporation; or
(IV) complete any plan of reorganization adversely
affecting the Series A Preferred Stock or take any of the actions enumerated in
Section 13(a) of the Investment Company Act.
D. Without the consent of each holder affected, an amendment
or waiver of this Amended and Restated Certificate of Incorporation may not
(with respect to any shares of Series A Preferred Stock held by a non-consenting
holder):
(I) alter the voting rights with respect to the Series A
Preferred Stock or reduce the number of shares of Series A Preferred Stock whose
holders must consent to an amendment, supplement or waiver;
(II) reduce the Liquidation Preference or alter the
provisions with respect to the redemption of the Series A Preferred Stock;
(III) alter in any manner the conversion rights of the
holders of Series A Preferred Stock set forth in paragraph 3 hereof;
(IV) reduce the rate of or change the time for payment
of dividends on any share of Series A Preferred Stock;
(V) waive the consequences of any failure to pay
dividends on the Series A Preferred Stock;
(VI) make any share of Series A Preferred Stock payable
in any form other than as stated in this Amended and Restated Certificate of
Incorporation;
(VII) make any change in the provisions of this Amended
and Restated Certificate of Incorporation relating to waivers of the rights of
holders of Series A Preferred Stock to receive the Liquidation Preference and
dividends on the Series A Preferred Stock;
(VIII) waive a redemption payment with respect to any
share of Series A Preferred Stock; or
(IX) make any change in the foregoing amendment and
waiver provisions.
E. The Corporation in its sole discretion may without the vote
or consent of any holders of the Series A Preferred Stock amend or supplement
this Amended and Restated Certificate of Incorporation:
(I) to cure any ambiguity, defect or inconsistency in
any manner that does not adversely affect the holders of Series A Preferred
Stock;
(II) to provide for uncertificated Series A Preferred
Stock in addition to or in place of certificated Series A Preferred Stock;
(III) to make any change that would provide any
additional rights; or
(IV) in any manner that benefits the holders of the
Series A Preferred Stock or that does not adversely affect the rights under this
Amended and Restated Certificate of Incorporation of any such holder.
7. EXCLUSION OF OTHER RIGHTS. Except as may otherwise be required by
law, the shares of Series A Preferred Stock shall not have any voting powers,
preferences and relative, participating, optional or other special rights, other
than those specifically set forth in this Amended and Restated Certificate of
Incorporation (as the same may be amended from time to time). The shares of
Series A Preferred Stock shall have no preemptive or subscription rights.
8. HEADINGS OF SUBDIVISIONS. The headings of the various
subdivisions hereof are for convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
9. SEVERABILITY OF PROVISIONS. If any voting powers, preferences and
relative, participating, optional and other special rights of the Series A
Preferred Stock and qualifications, limitations and restrictions thereof set
forth in this Amended and Restated Certificate of Incorporation (as the same may
be amended from time to time) is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other voting powers,
preferences and relative, participating, optional and other special rights of
Series A Preferred Stock and qualifications, limitations and restrictions
thereof set forth in this resolution (as so amended) which can be given effect
without the invalid, unlawful or unenforceable voting powers, preferences and
relative, participating, optional or other special rights of Series A Preferred
Stock and qualifications, limitations and restrictions thereof shall,
nevertheless, remain in full force and effect and no voting powers, preferences
and relative, participating, optional or other special rights of Series A
Preferred Stock and qualifications, limitations and restrictions thereof herein
set forth shall be deemed dependent upon any other such voting powers,
preferences and relative, participating, optional or other special rights of
Series A Preferred Stock and qualifications, limitations and restrictions
thereof unless so expressed herein.
10. RE-ISSUANCE OF SERIES A PREFERRED STOCK. Shares of Series A
Preferred Stock that have been issued and reacquired in any manner, including
shares purchased or redeemed or exchanged or converted, shall (upon compliance
with any applicable provisions of the laws of Delaware) have the status of
authorized but unissued shares of preferred stock of the Corporation
undesignated as to series and may be designated or re-designated and issued or
reissued, as the case may be, as part of any series of preferred stock of the
Corporation, provided that any issuance of such shares as Series A Preferred
Stock must be in compliance with the terms hereof.
11. MUTILATED OR MISSING SERIES A PREFERRED STOCK CERTIFICATES. If
any of the Series A Preferred Stock certificates shall be mutilated, lost,
stolen or destroyed, the
Corporation shall issue, in exchange and in substitution for and upon
cancellation of the mutilated Series A Preferred Stock certificate, or in lieu
of and substitution for the Series A Preferred Stock certificate lost, stolen or
destroyed, a new Series A Preferred Stock certificate of like tenor and
representing an equivalent amount of shares of Series A Preferred Stock, but
only upon receipt of evidence of such loss, theft or destruction of such Series
A Preferred Stock certificate and indemnity, if requested, satisfactory to the
Corporation and the Transfer Agent (if other than the Corporation).
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 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 AND NUMBERS 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 exclusively by one or more resolutions adopted by the
Board of Directors and not inconsistent with the Certificate of Incorporation of
the Corporation.
2. CLASSIFICATION. Subject to the rights of the holders of any
series of Preferred Stock to elect additional directors under specified
circumstances, the directors shall be divided into three classes designated as
"CLASS I", "CLASS II" and "CLASS III", respectively. Directors shall initially
be assigned to each class in accordance with a resolution or resolutions adopted
by the Board of Directors. At the first annual meeting of stockholders following
the date upon which this Certificate of Incorporation is filed with the
Secretary of State of the State of Delaware (the "EFFECTIVE DATE"), the term of
office of the Class I directors shall expire and Class I directors shall be
elected for a full term of three years. At the second annual meeting of
stockholders following the Effective Date, the term of office of the Class II
directors shall expire and Class II directors shall be elected for a full term
of three years. At the third annual meeting of stockholders following the
Effective Date, the term of office of the Class III directors shall expire and
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. Notwithstanding the foregoing provisions of this section,
each director shall serve until his successor is duly elected and qualified or
until his death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
3. REMOVAL OF DIRECTORS.
A. Subject to the rights of any series of Preferred Stock to
elect additional directors under specified circumstances, neither the Board of
Directors nor any individual director may be removed without cause.
B. Subject to any limitation imposed by law, any individual
director or directors may be removed with cause by the affirmative vote of the
holders of a majority of the voting power of all then-outstanding shares of
capital stock of the Corporation entitled to vote generally 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, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence 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. BYLAW AMENDMENTS. The Board is expressly empowered to adopt, amend or
repeal the Bylaws of the Corporation. The stockholders shall also have power to
adopt, amend or repeal the Bylaws of the Corporation; PROVIDED, HOWEVER, that,
in addition to any vote of the holders of any class or series of stock of the
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to adopt, amend
or repeal any provision of the Bylaws of the Corporation. The directors of the
Corporation need not be elected by written ballot unless the Bylaws so provide.
C. STOCKHOLDER ACTION. No action shall be taken by the stockholders of the
Corporation except at an annual or special meeting of stockholders called in
accordance with the Bylaws. No action shall be taken by the stockholders by
written consent or electronic transmission.
D. ADVANCE NOTICE. 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.
VI.
A. A current or former director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability: (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the DGCL; or (iv) for any
transaction from which the director derived any improper personal benefit. If
the DGCL is hereafter amended to further reduce or to authorize, with the
approval of the Corporation's stockholders, further reductions in the liability
of the Corporation's directors for breach of
fiduciary duty, then a current or former director of the Corporation shall not
be liable for any such breach to the fullest extent permitted by the DGCL as so
amended.
B. To the extent permitted by applicable law, this Corporation is also
authorized to provide indemnification of, and advancement of expenses to, its
agents (and any other persons to which Delaware law permits this Corporation to
provide indemnification) in excess of the indemnification and advancement
otherwise permitted by Section 145 of the DGCL through bylaw provisions,
agreements with such agents (or other persons), the requisite vote of
stockholders or disinterested directors or otherwise, subject only to limits
created by applicable Delaware law (statutory or non-statutory), with respect to
actions for breach of duty to the Corporation, its stockholders and others.
C. Any repeal or modification of any of the foregoing provisions of this
Article VI shall be prospective and shall not adversely affect any right or
protection of a director, officer, agent or other person existing at the time
of, or increase the liability of any director of the Corporation with respect to
any acts or omissions of such director occurring prior to, such repeal or
modification.
VII.
A. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in paragraph B of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Corporation required by law, this Certificate
of Incorporation or any certificate of designation filed with respect to a
series of Preferred Stock, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend or repeal Articles V, VI or VII.