Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EQUIVEST REINCORPORATION, INC.
EQUIVEST REINCORPORATION, 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 name of the Corporation is Equivest Reincorporation,
Inc. The original Certificate of Incorporation was filed on December 1,
1998. The name under which the Corporation was originally incorporated
was also "Equivest Reincorporation, Inc."
(2) This Amended and Restated Certificate of Incorporation
amends and restates in its entirety the Certificate of Incorporation of
the Corporation.
(3) Pursuant to Sections 245 and 253(b) of the General
Corporation Law of the State of Delaware, the text of the Certificate
of Incorporation is hereby amended and restated to read in its entirety
as follows:
ARTICLE I.
Name of Company
The name of this corporation shall be EQUIVEST FINANCE, INC.
(the "Corporation").
ARTICLE II.
General Nature of Business
The Corporation may engage in any activity or business
permitted under the laws of the United States and of the State of Delaware.
ARTICLE III.
Capitalization
The amount of the authorized capital stock of the Corporation
shall be as follows:
A. 50,000,000 shares of common stock at a par value of $.01
per share and
B. 1,000,000 shares of preferred stock at a par value of $3.00
per share. The Board of Directors is vested with authority to divide the
authorized preferred stock into one or more series of such shares and to fix and
determine the relative rights and preferences of any such series. A series of
such shares may, among other matters, establish (i) the number of preferred
shares to constitute such series and the distinct designations thereof; (ii) the
rate and preference of dividends, if any, the time of payment of dividends,
whether dividends are cumulative and the date from which any dividend shall
accrue; (iii) the liquidation preferences payable on preferred shares in the
event of involuntary or voluntary liquidation; and (iv) voting rights, if any.
The Board of Directors, without the approval of the Corporation's shareholders,
has the power to authorize the issuance of preferred stock with voting and
conversion rights which could adversely affect the voting power of the common
stock (the "Common Stock").
Pursuant to the authority conferred upon the Board of
Directors under this Article, there is hereby established a series of authorized
preferred stock of the Corporation having a par value of $3.00 per share (the
"Preferred Stock"), which series shall be designated as Series 2 Class A
Preferred Stock (the "Series 2 Preferred Stock") and shall consist of fifteen
thousand (15,000) shares.
The relative rights and preferences of the shares of the
Series 2 Preferred Stock of the Corporation shall be as follows:
a. Rank. The Series 2 Preferred Stock shall, with respect to
dividend rights and rights on liquidation, winding up and dissolution,
rank senior to all other series and classes of capital stock of the
Corporation, whether such series and classes are now existing or are
created in the future.
b. Dividends. (1) The holders of the shares of Series 2
Preferred Stock shall be entitled to receive dividends when and as
declared by the Board of Directors out of funds legally available
therefor, provided, that no dividends shall be declared with respect to
the Series 2 Preferred Stock except as required by subparagraph b(4)(b)
or b(5) hereof. Such dividends shall be paid at the Corporation's
discretion (i) in cash, (ii) by the issuance of that number of whole
shares of Common Stock computed by dividing the amount of the dividend
by the market price applicable to such dividend or (iii) by the
issuance of that number of whole shares of Series 2 Preferred Stock at
the Liquidation
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Value (as defined hereafter). For the purposes of this Section b,
"market price" shall mean (i) the average of the daily closing sale
prices of the Common Stock for a period of the last ten (10)
consecutive trading days preceding the date of calculating the market
price, if available, or (ii) the average of the daily closing bid and
asked prices of the Common Stock for a period of the last ten (10)
consecutive trading days preceding the date of calculating the market
price. The closing price for each trading day shall be for any period
during which the Common Stock shall be listed for trading on a national
securities exchange, the last reported price per share of the Common
Stock as reported by the primary stock exchange or the NASDAQ Stock
Market, if the Common Stock is quoted on the NASDAQ Stock Market. Such
dividends shall be paid to the holders of record of the Series 2
Preferred Stock at the close of business on the date specified by the
Board of Directors of the Corporation at the time such dividend is
declared; provided, however, that such date shall not be more than 60
nor less than 10 days prior to the respective dividend payment date.
(2) All dividends paid with respect to shares of Series 2 Preferred
Stock pursuant to paragraph b(1) shall be paid pro-rata to the holders
entitled thereto.
(3) Notwithstanding anything contained herein to the contrary, no cash
dividends on shares of the Series 2 Preferred Stock shall be declared
by the Board of Directors or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement
of the Corporation, including any agreement relating to its
indebtedness, specifically prohibits such declaration, payment or
setting apart for payment or provides that such declaration, payment or
setting apart for payment would constitute a breach thereof or a
default thereunder; provided, however, that nothing herein contained
shall in any way or under any circumstances, except as expressly
described herein, be construed or deemed to require the Board of
Directors to declare or the Corporation to pay or set apart for payment
any dividends on shares of the Series 2 Preferred Stock at any time,
whether permitted by any of such agreements or not.
(4)(a) Holders of shares of the Series 2 Preferred Stock shall be
entitled to receive the dividends provided for in paragraph b(1) hereof
in preference to and in priority over any dividends upon the Common
Stock.
(b) So long as any shares of the Series 2 Preferred Stock are
outstanding, the Corporation shall not declare, pay or set
apart for payment any dividend on any of the Common Stock or
on any other capital stock of the Corporation ranking junior
to the Series 2 Preferred Stock or any warrants, rights, calls
or options exercisable for the Common Stock or make any
distribution in respect thereof, either directly or
indirectly, and whether in cash, obligations or shares of the
Corporation or other property (other than distributions or
dividends in Common Stock to the holders of such stock), and
shall not permit any corporation or other entity directly
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or indirectly controlled by the Corporation to purchase any of
the Common Stock or any warrants, rights, calls or options
exercisable for the Common Stock, unless prior to or
concurrently with such declaration, payment, setting apart for
payment, purchase or distribution, as the case may be, all
dividends accrued on the Series 2 Preferred Stock but unpaid
through the most recent "dividend payment date" as defined in
subparagraph b(5) hereof have been paid or set apart for
payment.
(5) From and after the date of the issuance of shares of Series 2
Preferred Stock, holders of the shares of the Series 2 Preferred Stock
shall be entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the payment of dividends,
in addition to the dividends required pursuant to subparagraph b(4)(b)
hereof, cumulative dividends at the annual rate of $60 per share, in
equal (except for the first such dividend amount) quarterly payments on
March 31, June 30, September 30 and December 31 (each of such dates
being a "dividend payment date") in each year with respect to the three
month period ending on the last day of the month in which the dividend
payment date occurs. Each of such quarterly dividends shall be fully
cumulative and shall accrue (whether or not declared), without
interest, from the first day of the three-month period in which such
dividend may be payable as herein provided, except that, with respect
to the first quarterly dividend, such dividend shall accrue from the
date of issuance of such shares of Series 2 Preferred Stock.
(6) Subject to the foregoing provisions of this Section b, the Board of
Directors may declare and the Corporation may pay or set apart for
payment dividends and other distributions on the Common Stock and may
purchase or otherwise redeem any warrants, rights or options
exercisable for Common Stock, and the holders of the shares of the
Series 2 Preferred Stock shall not be entitled to share therein.
c. Liquidation Preference. (1) In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of shares of Series 2 Preferred Stock then
outstanding shall be entitled to be paid ratably out of the assets of
the Corporation available for distribution to its stockholders after
the payment or provision for any payment of amounts due to holders of
securities ranking senior to the Series 2 Preferred Stock an aggregate
amount in cash equal to $1,000 per share (the "Liquidation Value"),
plus all accrued and unpaid dividends, whether or not such accrued and
unpaid dividends have been declared by the Board of Directors of the
Corporation, before any payment shall be made or any assets distributed
to the holders of the Common Stock.
(2) For the purposes of this Section c, the voluntary sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or any substantial part of the property or assets
of the Corporation or the consolidation or merger of the Corporation
with one or more corporations shall be deemed to be a liquidation,
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dissolution or winding up, voluntary or involuntary, of the affairs of
the Corporation for purposes of determining the relative amounts of
consideration to be paid to the holders of any class of capital stock
of the Corporation.
d. Voting Rights. For all the shares of Series 2 Preferred
Stock held, the holders thereof shall in the aggregate be entitled to
that number of votes which is equal to twenty percent (20%) of the
total number of votes of the Corporation, taking into account shares of
Common Stock and any other series and classes of capital stock of the
Corporation, whether such series and classes are now existing or are
created in the future, on all matters presented to the stockholders of
the Corporation for their vote. Except as otherwise provided by law or
the Certificate of Incorporation of the Corporation, as amended hereby
and as hereafter amended from time to time, the holders of Series 2
Preferred Stock shall vote with the holders of the outstanding Common
Stock and any other series or class of capital stock entitled to vote
on such matter and not as a separate class or series.
(1) So long as any shares of the Series 2 Preferred Stock remain
outstanding, the Corporation will not, either directly or indirectly or
through merger or consolidation with any other corporation, without the
affirmative vote at a meeting or the written consent with or without a
meeting of the holders of at least 662/3% of the shares of Series 2
Preferred Stock then outstanding, amend, alter or repeal any of the
provisions of the Statement establishing the Series 2 Preferred Stock
or the Certificate of Incorporation, as amended, of the Corporation, or
authorize any reclassification of the Series 2 Preferred Stock, so as
in any such case to affect adversely the preferences, special rights or
powers of the Series 2 Preferred Stock, or authorize any capital stock
of the Corporation ranking, either as to payment of dividends or upon
liquidation, dissolution or winding up of the Corporation, prior to the
Series 2 Preferred Stock.
(2) So long as any shares of the Series 2 Preferred Stock remain
outstanding, the Corporation will not, either directly or indirectly or
through merger or consolidation with any other corporation, without the
affirmative vote at a meeting or the written consent with or without a
meeting of stockholders of at least 662/3% in voting power of shares of
the Series 2 Preferred Stock then outstanding, increase the authorized
number of shares of Series 2 Preferred Stock or create, or increase the
authorized number of shares of, any other class of capital stock of the
Corporation ranking on a parity with the Series 2 Preferred Stock
either as to payment of dividends or upon liquidation, dissolution or
winding up of the Corporation.
(3) No consent of holders of the Series 2 Preferred Stock shall be
required for (i) the creation of any indebtedness of any kind of the
Corporation or (ii) the issuance or any Common Stock of the
Corporation.
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e. Redemption. (1) The Corporation may, at its option, redeem
shares of Series 2 Preferred Stock issued at any time after the seventh
anniversary of the issuance of the Series 2 Preferred Stock in
accordance with this Section e. To effect such redemption, the
Corporation shall pay a sum in cash equal to the Liquidation Value (the
"Redemption Price"). The date fixed for redemption as provided in this
Section e(1) is referred to herein as the "Redemption Date."
(2) Not less than thirty (30) nor more than ninety (90) days before the
Redemption Date, written notice (the "Redemption Notice") shall be
given by mail, postage prepaid, to the holders of record of Series 2
Preferred Stock to be redeemed at their respective address as shown on
the records of the Corporation, specifying the number of shares of
Series 2 Preferred Stock to be redeemed, the Redemption Price, the
place and date of such redemption and the name and address of the
Corporation's transfer agent for the Series 2 Preferred Stock. The
Redemption Price for the shares of Series 2 Preferred Stock to be
redeemed shall be paid on or after the Redemption Date, upon surrender
of the certificate of certificates evidencing such shares. If the
Redemption Notice shall have been duly given and if on or before the
Redemption Date the funds necessary for redemption shall have been set
aside so as to be available therefor, then, notwithstanding that any
certificate evidencing shares of Series 2 Preferred Stock to be
redeemed shall not have been surrendered for cancellation, after the
close of business on the Redemption Date, the shares of Series 2
Preferred Stock shall no longer be deemed outstanding, the dividends
thereon shall cease to accrue, and all rights with respect to such
shares shall cease after the close of business on the Redemption Date,
except for the right of the holders thereof to receive upon
presentation of the certificate or certificates evidencing shares so
called for redemption, the Redemption Price therefor, payable to or on
the order of the person whose name appears on such certificates or
certificates as the owner thereof, without interest thereon.
(3) If the funds of the Corporation legally available for redemption
are insufficient to redeem the total number of shares of Series 2
Preferred Stock and other shares of any other series of redeemable
preferred stock to be redeemed on any Redemption Date, the funds that
are legally available shall be used to redeem shares of Series 2
Preferred Stock and all shares of any such other series to be redeemed
on such date on a pro rata basis among the holders of such shares in
proportion to the number of shares then held by such holders.
f. Notice. The holders of shares of the Series 2 Preferred
Stock shall receive notice not less than thirty (30) days before the
occurrence of any of the following: (i) the declaration of any record
date; and (ii) any meeting of the holders of shares of the Common Stock
called by the Corporations' Board of Directors (which notice must set
forth in reasonable detail the business to be transacted at such
meeting).
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ARTICLE IV.
Corporate Existence
This Corporation shall have perpetual existence unless sooner
dissolved according to law.
ARTICLE V.
Number of Directors
The number of directors of this Corporation shall be at least
one (1).
ARTICLE VI.
Registered Office and Registered Agent
The registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
ARTICLE VII.
Denial of Preemptive Rights
No shareholders of the Corporation shall have a preemptive
right because of his shareholding to have first offered to him any part of any
of the presently authorized shares of this Corporation hereafter issued,
optioned or sold, or any part of any debenture, bonds, notes, or securities of
this Corporation convertible into shares hereafter issued, optioned, or sold by
this Corporation. This provision shall operate to defeat rights in all shares
and classes of shares not authorized and in all debentures, bonds, notes, or
securities of the Corporation which may be convertible into shares, and also to
defeat preemptive right in any and all shares and classes of shares and
securities convertible into shares which this Corporation may be hereafter
authorized to issue by any amended certificate duly filed. Thus, any and all of
the shares of this Corporation presently authorized, and any and all debentures,
bonds, notes or securities of this Corporation convertible into shares and any
and all of the shares of this Corporation which may hereafter be authorized, any
at any time be issued, optioned, and contracted for sale, and/or sold and
disposed of by direction of the Board of Directors of the Corporation to such
persons, and upon such terms and conditions as may to the Board of Directors
seem proper and advisable, without first offering the said shares or securities
or any part thereof to existing shareholders.
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IN WITNESS WHEREOF, said Equivest Reincorporation, Inc. has
caused this Amended and Restated Certificate of Incorporation to be signed by
Richard C. Breeden, its Chairman and Chief Executive Officer this 3rd day of
December, 1998.
EQUIVEST REINCORPORATION, INC.
By /s/ Richard C. Breeden
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Name: Richard C. Breeden
Title: Chairman and Chief Executive Officer
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