EXHIBIT 3.3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 08/21/1997
971281213 - 2788016
CERTIFICATE OF INCORPORATION
OF
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
FIRST. The name of the corporation is FRANCHISE MORTGAGE ACCEPTANCE COMPANY.
SECOND. The address of the corporations' registered office in the State of
Delaware is 15 East North Street, Dover, Delaware 19901. The name of the
registered agent at such address is Paracorp Incorporated.
THIRD. The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH. A. The total number of shares of stock which the corporation shall
have the authority to issue is One Hundred Ten Million (110,000,000), divided
into One Hundred (100,000,000) shares of Common Stock of the par value of
$0.001 per share and Ten Million (10,000,000) shares of Preferred Stock of the
par value of $0.001 per share.
B. The shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors is expressly authorized to fix by
resolution(s) the designation of each series of Preferred Stock and the powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including, without
limitation, such provisions as may be desired concerning the dividend rights,
the dividend rate, conversion rate, conversion rights, voting rights, rights in
terms of redemption (including sinking fund provisions), the redemption price or
prices, the liquidation preferences and such other subjects or matters as may be
fixed by resolution(s) of the Board of Directors under the General Corporation
Law of Delaware; and to fix the number of shares constituting any such series,
and to increase or decrease the number of shares of any such series (but not
below the number of shares of any such series then outstanding). In the event
that the number of shares of any such series shall be so decreased, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution(s) originally fixing the number of shares of such
series. All Preferred Stock of the same series shall be identical in all
respects, except for the dates from which dividends, if any, shall be
cumulative.
FIFTH. The name and mailing address of the incorporator is Kasey Hannah,
9100 Wilshire Blvd., 8E, Beverly Hills, California 91021.
SIXTH. The Board of Directors of the corporation is expressly authorized to
make, alter or repeal by-laws of the corporation, but the stockholders may make
additional by-laws and may alter or repeal any by-law whether adopted by them or
otherwise.
SEVENTH. Elections of directors need not be by written ballot except and to the
extent provided in the by-laws of the corporation.
EIGHTH. No director of the corporation shall be 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 General Corporation law, or (iv) for any
transaction from which the director derived an improper personal benefit.
The undersigned incorporator hereby acknowledges that the foregoing
certificate of incorporation is her act and deed and that the facts stated
therein are true.
/s/ Kasey Hannah, Incorporator
--------------------------------------
Kasey Hannah, Incorporator
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
FRANCHISE MORTGAGE ACCEPTANCE COMPANY, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on August 21, 1997.
SECOND: This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors of the
Corporation.
THIRD: This Amended and Restated Certificate of Incorporation has been duly
approved by written consent of the stockholders of the Corporation and written
notice of such approval has been given to those stockholders who have not
consented in writing in accordance with Section 228 of the General Corporation
Law of the State of Delaware.
FOURTH: The Restated Certificate of Incorporation of the Corporation is amended
and restated in its entirety to read as follows:
I.
The name of the corporation (hereinafter called the "Corporation") is
FRANCHISE MORTGAGE ACCEPTANCE COMPANY.
II.
The address of the Corporation's registered office in the State of Delaware
is 15 East North Street, Dover, Delaware 19901. The name of the registered
agent at such address is Paracorp Incorporated.
III.
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
IV.
A. The total number of shares of stock which the Corporation shall have
the authority to issue is One Hundred Ten Million (110,000,000), divided into
One Hundred Million (100,000,000) shares of Common Stock of the par value of
$0.001 per share and Ten Million (10,000,000) shares of Preferred Stock of the
par value of $0.001 per share.
B. The shares of Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is expressly authorized to fix by
resolution(s) the designation of each series of Preferred Stock and the powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including, without
limitation, such provisions as may be desired concerning the dividend rights,
the dividend rate, conversion rate, conversion rights, voting rights, rights in
terms of redemption (including sinking fund provisions), the redemption price or
prices, the
liquidation preferences and such other subjects or matters as may be fixed by
resolution(s) of the Board of Directors under the General Corporation Law of
Delaware; and to fix the number of shares constituting any such series, and to
increase or decrease the number of shares of any such series (but not below the
number of shares of any such series then outstanding). In the event that the
number of shares of any such series shall be so decreased, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution(s) originally fixing the number of shares of such
series. All Preferred Stock of the same series shall be identical in all
respects, except for the dates from which dividends, if any, shall be
cumulative.
V.
The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal by-laws of the Corporation, but the stockholders may make
additional by-laws and may alter or repeal any by-law whether adopted by them or
otherwise.
VI.
Elections of directors need not be by written ballot except and to the
extent provided in the by-laws of the Corporation.
VII.
No director of the Corporation shall be 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 General Corporation law, or (iv) for any transaction from
which the director derived an improper personal benefit.
VIII.
No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
IX.
Special meetings of the stockholders may be called at any time by the Board
of Directors pursuant to a resolution approved by a majority of the Board of
Directors. Such special meetings may not be called by any other person or
persons.
IN WITNESS WHEREOF, Franchise Mortgage Acceptance Company has caused this
Amended and Restated Certificate of Incorporation to be signed by its President
and attested to by its Secretary this _____ day of October, 1997.
___________________________
Wayne L. Knyal
President
Acknowledged the ______ day of
October, 1997.
_____________________________
Raedelle A. Walker, Secretary