Exhibit 4.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ARISTOTLE SUB, INC.
under Sections 242 and 245
of the
Delaware General Corporation Law
Aristotle Sub, Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
FIRST: The name of the Corporation is Aristotle Sub, Inc.
SECOND: The Certificate of Incorporation of the Corporation was filed with the
Secretary of the State of Delaware on the 12th day of November, 1993.
THIRD: This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of the
Corporation by:
1. deleting in its entirety the definition of the "Dividend
Termination Date" as set forth in Article 4, Section 2 and adding
a new definition in Article 4, Section 2 as set forth herein; and
2. deleting in its entirety the first paragraph of Article 4,
Section 4 and adding a new first paragraph of Article 4, Section
4 as set forth herein.
FOURTH: The text of the Amended and Restated Certificate of Incorporation, as
amended or supplemented heretofore, is further amended hereby to read
as herein set forth in full.
FIFTH: This Amended and Restated Certificate of Incorporation was duly
adopted by the Stockholders of the Corporation in accordance with
Sections 242 and 245 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Aristotle Sub, Inc. has caused this Certificate to be
signed by John Crawford, its President, this 4th day of December, 1996.
ARISTOTLE SUB, INC.
By /s/ John Crawford
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John Crawford
Its President
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ARISTOTLE SUB, INC.
Article 1. Corporate Title. The name of the corporation is
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Aristotle Sub, Inc. (the "Corporation").
Article 2. Duration. The duration of the Corporation is perpetual.
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Article 3. Purpose. The purpose or purposes for which the
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Corporation is organized are to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware (the
"DGCL").
Article 4. Capital Stock. The total number of shares of all classes
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of capital stock which the Corporation has authority to issue is six million
(6,000,000) shares, of which three million (3,000,000) shares shall be common
stock, par value $.01 per share (the "Common Stock"), amounting in the aggregate
to thirty thousand dollars ($30,000)), and three million (3,000,000) shares
shall be serial preferred stock, par value $.01 per share (the "Preferred
Stock"), amounting in the aggregate to thirty thousand dollars ($30,000). The
shares of Common Stock and Preferred Stock may be issued by the Corporation from
time to time as approved by its board of directors (the "Board of Directors")
without the approval of its stockholders. The consideration for the issuance of
the shares of Common Stock or Preferred Stock shall be paid in full before their
issuance and shall not be less than the par value per share thereof. Neither
promissory notes nor future services shall constitute payment or part payment
for the issuance of the shares of Common Stock or Preferred Stock. The
consideration for the shares of Common Stock or Preferred Stock shall be cash,
services actually performed for the Corporation, personal property, real
property, leases of real property or any combination of the foregoing. In the
absence of actual fraud in the transaction, the value of such property, labor or
services, as determined by the Board of Directors, shall be conclusive. Upon
payment of such consideration, such shares of Common Stock or Preferred Stock
shall be deemed to be fully paid and nonassessable.
The Preferred Stock authorized by this Certificate of Incorporation
(the "Certificate of Incorporation") shall be issued in series. The first,
second and third such series shall be designated Series A Preferred Stock
("Series A Preferred Stock"), which shall consist of one hundred twenty-two
thousand six hundred ninety-one (122,691) shares, Series B Preferred Stock
("Series B Preferred Stock") and Series C Preferred Stock ("Series C Preferred
Stock"), which shall each consist of sixty-one thousand three hundred forty-five
(61,345) shares.
Except for the 245,380 shares of Series A, B and C Preferred Stock,
the Preferred Stock may be issued in one or more series by the Corporation from
time to time as approved by its Board of Directors. The Board of Directors is
authorized by resolution or resolutions from time to time adopted and by filing
a certificate pursuant to Section 151(g) of the DGCL to provide for the issuance
of one or more series of Preferred Stock and to fix and state the voting powers,
full or limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights of the shares of each
such series of Preferred Stock and the qualifications, limitations and
restrictions thereof other than the Series A, B and C Preferred Stock. Each
share of each series of Preferred Stock shall have the same relative rights as
and be identical in all respects with all the other shares of the same series of
Preferred Stock.
The relative rights, preferences, privileges, restrictions and other
matters relating to the respective classes of the shares of capital stock of the
Corporation are as follows:
Section 1. Junior Stock. For purposes of this Article, other than as
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set forth in Section 3 hereof, "Junior Shares" shall mean all Common Stock and
any other shares of capital stock of the Corporation other than the Series A, B
and C Preferred Stock.
Section 2. Dividends Rights of Series A, B and C Preferred Stock.
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The holders of the Series A, B and C Preferred Stock shall be entitled
to receive in any fiscal year, when and as declared by the Board of Directors,
out of any assets at the time legally available therefor, dividends in cash at
the rate per annum, prior to their respective Dividend Termination Dates (as
defined herein), of $.89 per share, payable in preference and priority to any
payment of any dividend on Junior Shares. The right to such dividends on the
Series A, B and C Preferred Stock shall be cumulative and shall accrue at the
rate of $.2225 per share on the first day of each January, April, July and
October until the applicable Dividend Termination Date. On and after the
applicable Dividend Termination Date, no dividends shall accrue upon the Series
A, B or C Preferred Stock. As used in this Certificate of Incorporation, the
"Dividend Termination Date" for any share of Preferred Stock means the later of
(a) the Put Right Commencement (as hereinafter defined) Date with respect to
such share or (b) the first date upon which The Aristotle Corporation
("Aristotle") has sufficient audited financial statements in order to satisfy
the requirements for filing a registration statement under the federal
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securities laws pursuant to which shares of Common Stock of Aristotle can be
registered for sale. Each share of Series A, B and C Preferred Stock shall rank
on a parity with each other share of Series A, B and C Preferred Stock,
irrespective of series, with respect to dividends, and no dividends shall be
declared or paid or set apart for payment on any of the Series A, B or C
Preferred Stock unless at the same time a dividend, bearing the same proportion
to the dividend rate shall also be declared or paid or set apart for payment, as
the case may be, on any of the Series A, B and C Preferred Stock as to which the
Dividend Termination Date has not occurred. No dividends shall be paid on any
Junior Shares unless all accrued dividends have been paid with respect to all
outstanding shares of Series A, B and C Preferred Stock.
Section 3. Liquidation Preference.
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A. In the event of any liquidation, dissolution or winding up of
the Corporation, either voluntary or involuntary, the holders of the Series A, B
and C Preferred Stock shall be entitled to receive, prior and in preference to
any distribution of any of the assets or surplus funds of the Corporation to the
holders of the Junior Shares by reason of their ownership thereof, the sum of
(i) $10 for each share of Series A, B or C Preferred Stock then held by them,
and (ii) an amount equal to all accrued but unpaid dividends on such Series A, B
and C Preferred Stock. If, upon the occurrence of such event the assets and
funds thus distributed among the holders of the Series A, B or C Preferred Stock
shall be insufficient to permit the payment to such holders of the full
preferential amount aforesaid, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Series A, B and C Preferred Stock in accordance with
the percentage of Preferred Stock then owned by them. After payment has been
made to the holders of the Series A, B and C Preferred Stock of the full amounts
to which they shall be entitled as aforesaid, all remaining assets and funds of
the Corporation shall be distributed among the holders of the Junior Shares.
B. For purposes of this Article 4, Section 3, a liquidation,
dissolution or winding up of the Corporation shall be deemed to be occasioned
by, or to include, a sale by any of the Corporation, Aristotle or The Strouse,
Adler Company ("Strouse") of all or substantially all of its assets or the
acquisition of this Corporation, Aristotle or Strouse by a Nonpermitted Party
(as hereinafter defined) by means of merger or consolidation resulting in the
exchange of the outstanding shares of capital stock of this Corporation,
Aristotle or Strouse for securities or consideration issued, or caused to be
issued, by the acquiring entity or its subsidiary or its parent.
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C. In the event the Corporation shall propose to take any action
of the types described in Paragraphs (A) and (B) of this Article 4, Section 3,
then the Corporation shall, within ten (10) days after the date that the Board
of Directors approves such action, or twenty (20) days prior to any
stockholders' meeting called to approve such action, whichever is earlier, give
each holder of shares of Series A, B and C Preferred Stock initial written
notice of the proposed action. Such initial written notice shall describe the
material terms and conditions of such proposed action, including a description
of the stock, cash and property to be received by the holders of shares of
Series A, B and C Preferred Stock upon consummation of the proposed action and
the date of delivery thereof. If any material change in the facts set forth in
the initial notice shall occur, the Corporation shall promptly give written
notice to each holder of shares of Series A, B and C Preferred Stock of such
material change.
D. The Corporation shall not consummate any proposed action of the
types described in Paragraphs (A) and (B) of this Article 4, Section 3 before
the expiration of thirty (30) days after the mailing of the initial notice or
twenty (20) days after the mailing of any subsequent written notice, whichever
is later; provided that any such 30-day or 20-day period may be shortened upon
the written consent of the holders of a majority of the outstanding shares of
Series A, B and C Preferred Stock.
E. In the event the Corporation shall propose to take any action
of the types described in Paragraphs (A) and (B) of this Article 4, Section 3
which will involve the distribution of assets other than cash, the Board of
Directors shall make a good faith appraisal of the value of the assets to be
distributed to the holders of shares of Series A, B and C Preferred Stock. The
Corporation shall give prompt written notice to each holder of shares of Series
A, B and C Preferred Stock of such valuation. All notices pursuant to this
Article 4, Section 3 hereof shall be deemed given upon personal delivery, or
upon delivery to a recognized overnight delivery service, or upon deposit in a
United States Post Office by registered or certified mail.
Section 4. Right of Holders of Series A, B and C Preferred Stock to
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Sell their Shares and Right of Corporation to Redeem Series A, B and C Preferred
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Stock. On the earlier of an "Acceleration Event" (as hereinafter defined) or at
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any time after April 12, 1996 with respect to Series A Preferred Stock, April
12, 1997 with respect to Series B Preferred Stock, and April 12, 1998 with
respect to Series C Preferred Stock (each such date being a "Put Right
Commencement Date"), and before the date three (3) years after the respective
Put Right Commencement Dates for each of Series A, B and C Preferred Stock (the
"Put Right Termination Date"), each holder of Series A, B or C Preferred Stock
shall have
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the right to sell, and the Corporation shall have the obligation to purchase,
any or all of such Series A, B or C Preferred Stock to the Corporation for $10
per share plus any accrued and unpaid dividends thereon (each such right being a
"Put Right"); provided, however, in order for the holder to exercise such Put
Right, the holder shall sell a number of each of the Series A, B and C Preferred
Stock of The Aristotle Corporation, issued to the holder on April 11, 1994,
which is equal to the number of Series A, B and C Preferred Stock with respect
to which the holder is exercising the Put Right, to The Aristotle Corporation
for a purchase price of $.001 per share. The Put Right may be exercised after
the Put Right Commencement Date until the Put Right Termination Date.
As used herein an Acceleration Event shall mean any one or more of the
following (it being understood that the Corporation shall use reasonable efforts
to provide the holders of the Series A, Series B and Series C Preferred Stock
with at least twenty (20) days prior written notice of the occurrence of the
Acceleration Events set forth in (a), (b) and (d)):
(a) In the event that all or substantially all of the capital stock
or assets of Strouse, the Corporation or Aristotle shall have
been transferred to a party not controlling, controlled by or
in the same control group as Aristotle (a "Nonpermitted
Party");
(b) In the event of merger, consolidation, business combination or
the reorganization involving Strouse, the Corporation or
Aristotle in which Strouse, the Corporation, Aristotle or a
corporation other than a Nonpermitted Party is not the
surviving corporation;
(c) In the event that Aristotle, the Corporation or Strouse makes
an assignment for the benefit of creditors, or shall apply for
or consent to the appointment of or taking possession by a
committee of creditors, a trustee, receiver or liquidator or if
Aristotle, the Strouse or the Corporation shall commence a case
or have an order for relief entered against it under federal
bankruptcy laws or applicable state insolvency or other similar
laws; or
(d) In the event of the dissolution or liquidation of Strouse, the
Corporation or Aristotle other than in connection with a
transaction that would be an Acceleration Event described in
clause (a) or (b) but for the fact that the transferee or
surviving
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corporation is Strouse, the Corporation, Aristotle or a
corporation other than a Nonpermitted Party.
The Corporation shall have the right, as and when determined by the Board
of Directors out of funds legally available therefor, to redeem the Series A, B
and C Preferred Stock in whole or in part, for $10 per share, plus any accrued
and unpaid dividends thereon, at any time after the applicable Put Right
Termination Date for any such series.
The shares to be included in any partial redemption shall be chosen by lot,
to be conducted in such manner as the Board of Directors shall deem to be
appropriate.
Any redemption or purchase of Series A, B and C Preferred Stock by the
Corporation shall be carried out in accordance with the following provisions:
(A) In the event the Corporation shall redeem shares of Series A, B
and C Preferred Stock, notice of such redemption and a statement from the Chief
Financial Officer of the Corporation setting forth the amount of surplus of the
Corporation as of the end of the month immediately preceding the date of such
notice (which amount shall be not less than the amount of the redemption price)
shall be given by certified mail, return receipt requested, or by recognized
overnight delivery service, sent not less than thirty (30) nor more than sixty
(60) days prior to the redemption date, to each holder of record of the shares
to be redeemed, at such holder's address as the same appears on the stock record
books of the Corporation. Each such notice shall state: (i) the redemption date;
(ii) the number of shares to be redeemed and, if fewer than all the shares held
by such holder are to be redeemed, the number of such shares to be redeemed from
such holder; and (iii) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price.
(B) In the event that a holder of Series A, B or C Preferred Stock
shall be entitled to and shall exercise his Put Right, notice of such holder's
exercise of such Put Right shall be given by certified mail, return receipt
requested, or by recognized overnight delivery service, sent not less than
thirty (30) nor more than sixty (60) days prior to the purchase date designated
by such holder. Each such notice shall state: (i) the purchase date designated
by such holder (which shall be after the Put Right Commencement Date and before
the Put Right Termination Date with respect to the series to be purchased); and
(ii) the number of shares of such series to be purchased.
(C) Notice having been mailed as aforesaid, then from and after the
redemption or purchase date (unless default shall be
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made by the Corporation in providing money for the payment of the redemption or
purchase price of the shares called for redemption or purchase or, in the case
of the exercise of a Put Right, the Corporation has surplus in an amount less
than the purchase price), said shares shall: (i) be transferred or deemed
transferred to the Corporation free and clear of all liens and encumbrances;
(ii) no longer be deemed to be outstanding; and (iii) all rights of the holders
thereof as shareholders of the Corporation (except the right to receive from the
Corporation the redemption or purchase price) shall cease and terminate. Upon
surrender in accordance with said notice of the certificates for any shares so
redeemed or purchased (properly endorsed or assigned for transfer, if the Board
of Directors shall so require), such shares shall be redeemed or purchased by
the Corporation at the price aforesaid, without interest. In case fewer than all
the shares represented by any such certificate are redeemed or purchased, a new
certificate shall be issued representing the unredeemed or unpurchased shares
without cost to the holder thereof. If the certificates evidencing ownership of
redeemed shares are not surrendered to the Corporation (or affidavits of lost
certificates accompanied by indemnities reasonable satisfactory to the Company
are not provided to the Company in place of such certificates) within six (6)
years after the giving of such notice of redemption, then the Corporation shall
have the right to retain the redemption price and to deem the shareholder to
have waived his right to receive the redemption price or any further right or
benefit from such certificate or shares. If the Corporation does not have
sufficient surplus to purchase the shares as to which the Put Right was being
exercised, the Corporation shall notify the holders of such shares as to the
amount of surplus that the Corporation does have.
(D) Any shares of Series A, B and C Preferred Stock which shall at any
time have been redeemed or purchased by the Corporation shall, after such
redemption or purchase, be cancelled, retired and eliminated from being
authorized to be issued in the manner provided by applicable law.
Section 5. Covenants. In addition to any other rights provided by law, so
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long as shares of a Series A, B and C Preferred Stock shall be outstanding, the
Corporation shall not, without first obtaining the affirmative vote or written
consent of the holders of a majority of such outstanding shares of such Series
A, B and C Preferred Stock:
(A) Increase or decrease the number of shares of Series A, B and C
Preferred Stock authorized hereby;
(B) Authorize or issue shares of any class or series of stock having a
liquidation preference superior to or equal to the Series A, B and C Preferred
Stock, or authorize or issue shares of
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stock of any class or any bonds, debentures, notes or other obligations
convertible into or exchangeable for, or having option rights to purchase, any
shares of stock of the Corporation having a liquidation preference superior to
the Series A, B and C Preferred Stock;
(C) Reclassify any outstanding shares into shares having a liquidation
preference superior to the Series A, B and C Preferred Stock; or
(D) Amend this Article 4 and Article 11 hereof.
The covenants set forth in Sections 5(B) and (C) shall terminate on
the Put Right Termination Date.
Section 6. Voting Rights. The Common Stock will have the right to one
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vote per share with respect to any matter as to which a vote or consent of the
stockholders of the Corporation is sought.
Article 5. Preemptive Rights. Holders of the capital stock of the
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Corporation shall not be entitled to preemptive rights with respect to any
shares or other securities of the Corporation which may be issued.
Article 6. Directors. The Corporation shall be under the direction of the
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Board of Directors. The Board of Directors shall consist of not less than seven
directors nor more than fifteen (15) directors. The number of directors within
this range shall be as stated in the Bylaws, as may be amended from time to
time, and shall initially consist of thirteen (13) directors. The Board of
Directors shall divide the directors into three (3) classes and, when the number
of directors is changed, shall determine the class or classes to which the
increased or decreased number of directors shall be apportioned; provided, that
the directors in each class shall be as nearly equal in number as possible;
provided, further, that no decrease in the number of directors shall affect the
term of any director then in office.
The classification shall be such that the term of one class shall expire
each succeeding year. The Board of Directors shall initially be divided into
three classes named Class I, Class II and Class III, with Class I initially
consisting of five directors and Class II and III each initially consisting of
four directors. The terms, classifications, qualifications and election of the
Board of Directors and the filling of vacancies thereon shall be as provided
herein and in the Bylaws.
Subject to the foregoing, at each annual meeting of stockholders the
successors to the class of directors whose term shall then expire shall be
elected to hold office for a term
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expiring at the third succeeding annual meeting and until their successors shall
be elected and qualified.
Any vacancy occurring in the Board of Directors, including any vacancy
created by reason of an increase in the number of directors, shall be filled for
the unexpired term by the concurring vote of a majority of the directors then in
office, whether or not a quorum, and any director so chosen 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 director may be removed except for cause and then only by an affirmative
vote of at least two-thirds of the total votes eligible to be voted by
stockholders at a duly constituted meeting of stockholders called for such
purpose. At least thirty (30) days prior to such meeting of stockholders,
written notice shall be sent to the director or directors whose removal will be
considered at such meeting.
Article 7. Bylaws. The Board of Directors or the stockholders may from
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time to time amend the Bylaws.
Article 8. Special Meetings. Special meetings of stockholders may be
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called at any time but only by the chairman of the Board of Directors or the
president of the Corporation or by the Board of Directors.
Article 9. Registered Office. The street address of the Corporation's
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initial registered office in the State of Delaware is 1209 Orange Street, City
of Wilmington, County of New Castle, and the name of its initial registered
agent at such address is The Corporation Trust Company.
Article 10. Stockholder Meetings. Meetings of stockholders may be held
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within or without the State of Delaware, as the Bylaws may provide. The books of
the Corporation may be kept (subject to any provision contained in the statutes)
outside of the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the Corporation.
Elections of Directors need not be by written ballot unless the Bylaws of the
Corporation shall so provide.
Article 11. Amendment of Certificate of Incorporation. The Corporation
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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
law, and all rights and powers conferred herein on stockholders and directors
are subject to this reserved power.
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Article 12. Limitation on Director Liability. No director of the
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Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty by such director as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the DGCL for approval of an unlawful dividend or
an unlawful stock purchase or redemption, or (iv) for any transaction from which
the director derived an improper personal benefit. Any repeal or modification of
this Article 13 by the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the personal liability of
a director of the Corporation for acts or omissions occurring prior to the
effective date of such repeal or modification.
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