EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CALAMOS ASSET MANAGEMENT, INC.
Calamos Asset Management, Inc., a Delaware corporation (hereinafter
the "Corporation") hereby certifies as follows:
1. The name of the corporation is Calamos Asset Management, Inc. The
original certificate of incorporation of the Corporation (the "Original
Certificate of Incorporation") was filed with the Secretary of State of the
State of Delaware on July 23, 2004.
2. This Amended and Restated Certificate of Incorporation amends and
restates in its entirety the Corporation's Original Certificate of Incorporation
and has been duly adopted in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL") and by written consent of
the stockholders of the Corporation and duly executed and acknowledged by the
officers of the Corporation in accordance with Section 103 of the DGCL.
3. The Original Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
"ARTICLE I
Name
The name of the corporation is Calamos Asset Management, Inc. (the
"Corporation").
ARTICLE II
Registered Office and Registered Agent
The address of the registered office of the Corporation in the State
of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
ARTICLE III
Corporate Purpose
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 the State of Delaware (the "DGCL").
ARTICLE IV
Capital Stock
Section 1. Shares, Classes and Series Authorized. The total number
of shares of all classes of capital stock which the Corporation shall have
authority to issue is 606,001,000 shares, consisting of: (a) 600,000,000 shares
of Class A Common Stock, par value $0.01 per share (the "Class A Common Stock");
(b) 1,000 shares of Class B Common Stock, par value $0.01 per share (the "Class
B Common Stock"); and (c) 6,000,000 shares of Preferred Stock, par value $0.01
per share (the "Preferred Stock"), issuable in one or more series as hereinafter
provided.. The Class A Common Stock and the Class B Common Stock shall
hereinafter collectively be called the "Common Stock". The number of authorized
shares of any class or classes of capital stock of the Corporation may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock, voting together as a single class, irrespective of the provisions of
Section 242(b)(2) of the DGCL or any corresponding provision hereinafter
enacted.
Section 2. Preferred Stock. Authority is hereby expressly vested in
the Board of Directors of the Corporation (the "Board"), subject to the
provisions of this Article IV and to the limitations prescribed by law, without
shareholder action, to authorize the issue from time to time of one or more
series of Preferred Stock and with respect to each such series to fix by
resolution or resolutions adopted by the affirmative vote of the Board providing
for the issue of such series the voting powers, full or limited, if any, of the
shares of such series and the designations, preferences and relative,
participating, optional or other special rights and the qualifications,
limitations or restrictions thereof. The authority of the Board with respect to
each series shall include, but not be limited to, the determination or fixing of
the following:
(i) the designation and number of shares of such series;
(ii) the dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the relation which such dividends
shall bear to the dividends payable on any other class or classes or
series of the Corporation's capital stock, and whether such dividends
shall be cumulative or non-cumulative;
(iii) whether the shares of such series shall be subject to
redemption for cash, property or rights, including securities of the
Corporation or of any other corporation, by the Corporation at the option
of either the Corporation or the holder or both or upon the happening of a
specified event, and, if made subject to any such redemption, the times or
events, prices and other terms and conditions of such redemption;
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(iv) the terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) whether or not the shares of such series shall be convertible
into, or exchangeable for, at the option of either the holder or the
Corporation or upon the happening of a specified event, shares of any
other class or classes or of any other series of the same or any other
class or classes of the Corporation's capital stock, and, if provision be
made for conversion or exchange, the times or events, prices, rates,
adjustments and other terms and conditions of such conversions or
exchanges;
(vi) the restrictions, if any, on the issue or reissue of any
additional Preferred Stock;
(vii) the rights of the holders of the shares of such series upon
the voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation; and
(viii) the provisions, if any, as to voting (which may be one or
more votes per share or a fraction of a vote per share), optional and/or
other special rights and preferences, if any.
Section 3. Common Stock; Voting; Directors. (a) Rights and
Privileges; Voting Rights. (i) All shares of Common Stock will be identical in
all respects and will entitle the holders thereof to the same rights and
privileges, except as otherwise provided in this Amended and Restated
Certificate of Incorporation or as otherwise provided by law.
(i) The shares of Common Stock shall entitle the holders thereof to
the following voting rights:
(1) Each share of Class A Common Stock shall entitle the
holder thereof to one (1) vote in person or by proxy on all matters
submitted to a vote of the stockholders of the Corporation.
(2) Each share of Class B Common Stock shall entitle the
holder thereof to the following number of votes in person or by
proxy on all matters submitted to a vote of the stockholders of the
Corporation: ten (10) multiplied by the sum of (x) the aggregate
number of shares of Class B Common Stock held by such holder and (y)
the aggregate number of Membership Units (as defined below) held by
such holder, divided by (z) the number of shares of Class B Common
Stock owned by such holder. "Membership Units" shall mean membership
units in Calamos Holdings LLC, the Delaware limited liability
company of which the Corporation is the sole Manager, or any
successor entity thereto, issued under its Limited Liability Company
Agreement (as amended, the "LLC Agreement").
(3) For so long as Class B Common Stock remains issued and
outstanding, the holders of the Class B Common Stock, voting
separately as a class, shall be entitled to elect such number of
directors of the Board as set out in the by-laws of the Corporation,
which shall in no event be less
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than two (2) directors (each a "Class B Director"), and all
remaining directors shall be elected by the vote of the holders of
the Common Stock, voting together as a single class.
(4) Except as otherwise required in this Amended and Restated
Certificate of Incorporation or the by-laws of the Corporation or by
applicable law, the holders of shares of Common Stock shall vote
together as a single class on all matters submitted to a vote of
stockholders of the Corporation (or if any holders of shares of
Preferred Stock are entitled to vote together with the holders of
Common Stock, as a single class with such holders of shares of
Preferred Stock).
(b) Dividends and Distributions.
(i) Subject to the preferences applicable to Preferred Stock, if
any, outstanding at any time, the holders of shares of Common Stock shall
be entitled to receive such dividends and other distributions in cash,
property or shares of stock of the Corporation as may be declared thereon
by the Corporation's Board from time to time out of assets or funds of the
Corporation legally available therefor; provided that, subject to the
provisions of this Section, the Corporation shall not pay dividends or
make distributions to any holders of any class of Common Stock unless
simultaneously with such dividend or distribution, as the case may be, the
Corporation makes the same dividend or distribution with respect to each
outstanding share of Common Stock regardless of class.
(ii) In the case of dividends or other distributions payable in
Class A Common Stock or Class B Common Stock including distributions
pursuant to stock splits or divisions of Class A Common Stock or Class B
Common Stock which occur after the first date upon which the Corporation
has issued any shares of Class A Common Stock or Class B Common Stock,
only shares of Class A Common Stock shall be distributed with respect to
Class A Common Stock and only shares of Class B Common Stock shall be
distributed with respect to Class B Common Stock. In the case of any such
dividend or distribution payable in shares of Class A Common Stock or
Class B Common Stock, the number of shares of each class of Common Stock
payable per share of such class of Common Stock shall be equal in number.
(iii) In the case of dividends or other distributions consisting of
other voting securities of the Corporation or of voting securities of any
corporation which is a wholly owned subsidiary of the Corporation, the
Corporation shall declare and pay such dividends in two separate classes
of such voting securities, identical in all respects, except that: (1) the
voting rights of each such security paid to the holders of Class B Common
Stock, when compared to the voting rights of each such security paid to
the holders of Class A Common Stock, shall have voting rights determined
pursuant to the same formula as provided in Article IV, Section
3(a)(ii)(2) above; and (2) such security paid to the holders of Class B
Common Stock shall convert into the security paid to the holders of Class
A Common Stock upon the same terms and conditions applicable to the
conversion of Class B Common Stock into Class A Common Stock and shall
have the
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same restrictions on transfer and ownership applicable to the transfer and
ownership of Class B Common Stock.
(iv) In the case of dividends or other distributions consisting of
securities convertible into, or exchangeable for, voting securities of the
Corporation or voting securities of another corporation which is a wholly
owned subsidiary of the Corporation, the Corporation shall provide that
such convertible or exchangeable securities and the underlying securities
be identical in all respects (including, without limitation, the
conversion or exchange rate), except that: (1) the voting rights of each
security underlying the convertible or exchangeable security paid to the
holders of Class B Common Stock, when compared to the voting rights of
each security underlying the convertible or exchangeable security paid to
the holders of the Class A Common Stock, shall have voting rights
determined pursuant to the same formula as provided in Article IV, Section
3(a)(ii)(2) above; and (2) such securities underlying the convertible or
exchangeable securities paid to the holders of the Class B Common Stock
shall convert into the securities underlying the convertible or
exchangeable securities paid to the holders of Class A Common Stock upon
the same terms and conditions applicable to the conversion of Class B
Common Stock into Class A Common Stock and shall have the same
restrictions on transfer and ownership applicable to the transfer and
ownership of the Class B Common Stock.
(c) Conversion of Class B Common Stock; Exchange of Membership
Units.
(i) Each holder of Class B Common Stock shall be entitled to
convert, at any time and from time to time, any or all of the shares of
such holder's Class B Common Stock, on a one-for-one basis, into the same
number of fully paid and non-assessable shares of Class A Common Stock.
Such right shall be exercised by the surrender to the Corporation of the
certificate or certificates representing the shares of Class B Common
Stock to be converted at any time during normal business hours at the
principal executive offices of the Corporation or at the office of the
Corporation's transfer agent (the "Transfer Agent"), accompanied by a
written notice of the holder of such shares stating that such holder
desires to convert such shares, or a stated number of the shares
represented by such certificate or certificates, into an equal number of
shares of Class A Common Stock, and (if so required by the Corporation or
the Transfer Agent) by instruments of transfer, in form satisfactory to
the Corporation and to the Transfer Agent, duly executed by such holder or
such holder's duly authorized attorney, and transfer tax stamps or funds
therefor, if required pursuant to Article IV, Section 3(c)(viii) below.
(ii) Subject to adjustment as provided in Article IV, Section 3(d)
below, each holder (other than the Corporation) of a Membership Unit shall
be entitled to exchange, at any time and from time to time, any or all of
such holder's Membership Units, on a one-for-one basis, into the same
number of fully paid and non-assessable shares of Class A Common Stock.
Such right shall be exercised by the surrender to the Corporation of the
certificate or certificates representing the Membership Units to be
exchanged at any time during normal business hours at the principal
executive offices of the Corporation or at the office of the Transfer
Agent, accompanied by a written notice of the holder of such Membership
Units stating that such holder desires to exchange such Membership Units,
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or a stated number of Membership Units represented by such certificate or
certificates, into an equal number of shares of Class A Common Stock, and
by instruments of transfer to the Corporation, in form satisfactory to the
Corporation and to the Transfer Agent, duly executed by such holder or
such holder's duly authorized attorney, and transfer tax stamps or funds
therefor, if required pursuant to Article IV, Section 3(c)(viii) below.
(iii) Each share of Class B Common Stock transferred by one or more
CFP Permitted Transferees (as defined below) to one or more persons or
entities other than CFP Permitted Transferees shall automatically convert
into one (1) fully paid and non-assessable share of Class A Common Stock
upon such disposition; provided that no such conversion shall occur solely
as a result of the pledge or hypothecation of any Class B Common Stock by
a CFP Permitted Transferee or the pledge, hypothecation, short sale, put,
call, option or other contract or arrangement in connection with any
hedging or other derivative transaction with respect to any Class B Common
Stock by a CFP Permitted Transferee. "CFP Permitted Transferee" shall have
the meaning ascribed thereto in the LLC Agreement.
(iv) If at any time the number of shares of Class B Common Stock
outstanding, together with the number of outstanding Membership Units and
shares of Class A Common Stock held by the holders of such Class B Common
Stock, constitutes less than fifteen percent (15%) of the number of then
outstanding Membership Units, then each share of Class B Common Stock then
issued and outstanding shall thereupon be converted automatically as of
such date into one (1) fully paid and non-assessable share of Class A
Common Stock. Upon the determination by the Corporation that such
automatic conversion has occurred, notice of such automatic conversion
shall be given by the Corporation by means of a press release and written
notice to all holders of Class B Common Stock, and shall be given as soon
as practicable, and the Secretary of the Corporation shall be instructed
to, and shall promptly, request from each holder of Class B Common Stock
that each such holder promptly deliver, and each such holder shall
promptly deliver, the certificate representing each such share of Class B
Common Stock to the Corporation for exchange hereunder, together with
instruments of transfer, in form satisfactory to the Corporation and the
Transfer Agent, duly executed by such holder or such holder's duly
authorized attorney, together with transfer tax stamps or funds therefor,
if required pursuant to Article IV, Section 3(c)(viii) below. The Class B
Directors shall remain on the Board until the next annual meeting of
stockholders following the automatic conversion of the Class B Common
Stock at which meeting the Class B Directors may be replaced by directors
elected by the vote of the holders of the Common Stock, voting together as
a single class, or the Board may reduce the size of the Board. If a Class
B Director resigns upon or following such automatic conversion of the
Class B Common Stock and prior to such annual meeting, the vacancy may be
filled by the Board, without the approval of the other Class B Director,
or the Board may reduce the size of the Board by such resignation.
(v) As promptly as practicable following the surrender for
conversion of a certificate representing shares of Class B Common Stock in
the manner provided in Article IV, Section 3(c)(i),(iii) or (iv) above, or
the surrender for exchange of a certificate representing Membership Units
in the manner provided in Article IV, Section 3(c)(ii)
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above, as applicable, and the payment in cash of any amount required by
the provisions of Article IV, Section 3(c)(viii) below, the Corporation
shall deliver or cause to be delivered at the office of the Transfer
Agent, a certificate or certificates representing the number of shares of
Class A Common Stock issuable upon such conversion or exchange, issued in
such name or names as such holder may direct. Such conversion or exchange
shall be deemed to have been effected immediately prior to the close of
business on the date of the surrender of the certificate or certificates
representing shares of Class B Common Stock or Membership Units, as the
case may be. Upon the date any such conversion or exchange is made or
effected, all rights of the holder of such shares of Class B Common Stock
or Membership Units as such holder shall cease, and the person or persons
in whose name or names the certificate or certificates representing the
shares of Class A Common Stock are to be issued shall be treated for all
purposes as having become the record holder or holders of such shares of
Class A Common Stock; provided, however, that if any such surrender and
payment occurs on any date when the stock transfer books of the
Corporation shall be closed, the person or persons in whose name or names
the certificate or certificates representing shares of Class A Common
Stock are to be issued shall be deemed the record holder or holders
thereof for all purposes immediately prior to the close of business on the
next succeeding day on which the stock transfer books are open.
(vi) In the event of a reclassification or other similar transaction
as a result of which the shares of Class A Common Stock are converted into
another security, then a holder of Class B Common Stock or Membership
Units shall be entitled to receive upon conversion or exchange the amount
of such security that such holder would have received if such conversion
or exchange had occurred immediately prior to the effective date of such
reclassification or other similar transaction. No adjustments in respect
of dividends shall be made upon the conversion or exchange of any share of
Class B Common Stock or Membership Unit; provided, however, that if a
share of Class B Common Stock or Membership Unit shall be converted or
exchanged subsequent to the record date for the payment of a dividend or
other distribution on shares of Class B Common Stock or Membership Units
but prior to the date of such payment, then the registered holder of such
share or Membership Unit at the close of business on such record date
shall be entitled to receive the dividend or other distribution payable on
such share or Membership Unit on such payment date notwithstanding the
conversion or exchange thereof or the default in payment of the dividend
or distribution due on such payment date.
(vii) The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Class A Common Stock, solely
for the purpose of issuance upon conversion or exchange of the outstanding
shares of Class B Common Stock or Membership Units, such number of shares
of Class A Common Stock that shall be issuable upon the conversion of all
such outstanding shares of Class B Common Stock and the exchange of all
such outstanding Membership Units; provided that nothing contained herein
shall be construed to preclude the Corporation from satisfying its
obligations in respect of the conversion or exchange of the outstanding
shares of Class B Common Stock or Membership Units by delivery of
purchased shares of Class A Common Stock which are held in the treasury of
the Corporation. The Corporation
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covenants that if any shares of Class A Common Stock require registration
with or approval of any governmental authority under any federal or state
law before such shares of Class A Common Stock may be issued upon
conversion or exchange, the Corporation shall cause such shares to be duly
registered or approved, as the case may be. The Corporation shall use
commercially reasonable efforts to list the shares of Class A Common Stock
required to be delivered upon conversion or exchange prior to such
delivery upon each national securities exchange or inter-dealer quotation
system upon which the outstanding Class A Common Stock is listed or traded
at the time of such delivery. The Corporation covenants that all shares of
Class A Common Stock that shall be issued upon conversion or exchange of
the shares of Class B Common Stock or Membership Units will, upon issue,
be validly issued, fully paid and non-assessable.
(viii) The issuance of certificates for shares of Class A Common
Stock upon conversion or exchange of shares of Class B Common Stock or
Membership Units shall be made without charge to the holders of such
shares or Membership Units for any stamp or other similar tax in respect
of such issuance; provided, however, that if any such certificate is to be
issued in a name other than that of the holder of the share or shares of
Class B Common Stock converted or the Membership Units exchanged, then the
person or persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax that may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction
of the Corporation that such tax has been paid or is not payable.
(ix) Shares of Class B Common Stock that are converted into shares
of Class A Common Stock as provided herein shall continue to be authorized
shares of Class B Common Stock, and available for reissue by the
Corporation; provided, however, that no shares of Class B Common Stock
shall be reissued except as expressly permitted by Article IV, Section
3(b) above and Article IV, Section 3(d) below.
(d) Stock Splits, Stock Dividends and Reclassifications. The
Corporation shall not in any manner subdivide (by any stock split, stock
dividend, reclassification, recapitalization or otherwise) or combine (by
reverse stock split, reclassification, recapitalization or otherwise) the
outstanding shares of one class of Common Stock unless the outstanding shares of
all classes of Common Stock shall be proportionately subdivided or combined. The
exchange rights for Membership Units shall be adjusted accordingly if there is:
(A) any subdivision (by any unit split, unit distribution, reclassification,
recapitalization or otherwise) or combination (by reverse unit split,
reclassification, recapitalization or otherwise) of the Membership Units that is
not accompanied by an identical subdivision or combination of the Common Stock;
or (B) any subdivision (by any stock split, stock dividend, reclassification,
recapitalization or otherwise) or combination (by reverse stock split,
reclassification, recapitalization or otherwise) of the Common Stock that is not
accompanied by an identical subdivision or combination of the Membership Units.
(e) Options, Rights or Warrants.
(i) The Corporation shall not make any offering of options, rights
or warrants to subscribe for shares of Class B Common Stock. If the
Corporation makes an offering
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of options, rights or warrants to subscribe for shares of any class or
classes of capital stock, other than Class B Common Stock, to all holders
of a class of Common Stock, then the Corporation shall simultaneously make
an identical offering to all holders of the other class of Common Stock
other than to any class of Common Stock the holders of which, voting as a
separate class, determine that such offering need not be made to such
class. All such options, rights or warrants offerings shall offer the
respective holders of Class A Common Stock and Class B Common Stock the
right to subscribe at the same rate per share.
(ii) Subject to Article IV, Sections 3(c)(iv) and 3(e)(i) above, the
Corporation shall have the power to create and issue, whether or not in
connection with the issue and sale of any shares of stock or other
securities of the Corporation, rights or options entitling the holders
thereof to purchase from the Corporation any shares of its capital stock
of any class or classes at the time authorized (other than Class B Common
Stock), such rights or options to have such terms and conditions, and to
be evidenced by or in such instrument or instruments, as shall be approved
by the Board.
(f) Mergers, Consolidation, Etc. In the event that the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then, and in such event, the shares
of each class of Common Stock shall be exchanged for or changed into the same
amount of stock, securities, cash and/or any other property, as the case may be,
into which or for which each share of any other class of Common Stock is
exchanged or changed; provided, however, that if shares of Common Stock are
exchanged for or changed into shares of capital stock, such shares so exchanged
for or changed into may differ to the extent and only to the extent that the
Class A Common Stock and the Class B Common Stock differ as provided herein.
(g) Liquidation Rights. In the event of any dissolution, liquidation
or winding-up of the affairs of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation and after making provision for the holders of
each series of Preferred Stock, if any, the remaining assets and funds of the
Corporation, if any, shall be divided among and paid ratably to the holders of
the shares of the Class A Common Stock and the Class B Common Stock treated as a
single class.
(h) No Preemptive Rights. Except as provided in Article IV, Section
3(e) above, the holders of shares of Common Stock are not entitled to any
preemptive right to subscribe for, purchase or receive any part of any new or
additional issue of stock of any class, whether now or hereafter authorized, or
of bonds, debentures or other securities convertible into or exchangeable for
stock.
(i) Reclassification. Immediately upon the effectiveness of this
Amended and Restated Certificate of Incorporation, each share of common stock of
the Corporation issued and outstanding immediately prior to such effectiveness
shall be changed into and reclassified as one (1) share of Class B Common Stock.
Promptly after such effectiveness, each record holder of certificates that,
immediately prior to such effectiveness, represented a number of shares of
common stock of the Corporation shall be entitled to receive in exchange for
such certificates,
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upon surrender of such certificates to the Corporation, certificates for a like
number of shares of Class B Common Stock. Until surrendered and exchanged in
accordance herewith, each certificate that, immediately prior to such
effectiveness, represented a number of shares of common stock of the Corporation
shall represent, collectively, a like number of shares of Class B Common Stock.
ARTICLE V
Directors
Section 1. Removal of Directors. Any director (other than a Class B
Director) may be removed from office for cause at any time by the affirmative
vote of the holders of record of outstanding shares representing at least a
majority of the voting power of the Common Stock and the Preferred Stock, voting
together as a single class. Any Class B Director may be removed from office at
any time, with or without cause, by the affirmative vote of the holders of
record of outstanding shares of Class B Common Stock representing at least a
majority of the voting power of the Class B Common Stock, voting separately as a
class.
Section 2. Vacancies in the Board. Any vacancy on the Board
resulting from death, resignation, disqualification, removal or other causes
with respect to any director (other than a Class B Director), and any newly
created directorships resulting from any increase in the number of directors
(other than Class B Directors), shall be filled by the affirmative vote of a
majority of the remaining directors (even if less than a quorum of the Board),
subject to the approval of the Class B Directors. Subject to Article IV, Section
3(c)(iv), any vacancy on the Board resulting from the death, resignation,
disqualification, removal or other causes with respect to a Class B Director
shall be filled only by the affirmative vote of the remaining Class B Directors
then in office or by the sole remaining Class B Director. In the absence of a
sole remaining Class B Director, such vacancies shall be filled by a majority
vote of the holders of the Class B Common Stock, voting separately as a class.
Any director elected in accordance with the preceding sentences 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 duly
elected and qualified. A vacancy in the Board shall be deemed to exist in the
case of the death, removal or resignation of any director.
ARTICLE VI
Limitation of Directors' Liability; Indemnification by Corporation; Insurance
Section 1. Limitation of Directors' Liability. (a) No director of
the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except, to the extent provided by applicable law, for liability (i) for 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) pursuant to Section 174 of the DGCL or (iv)
for any transaction from which the director derived an improper personal
benefit. If the DGCL is hereafter amended to authorize corporate action further
limiting or eliminating the personal liability of directors, then the liability
of each
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director of the Corporation shall be limited or eliminated to the full extent
permitted by the DGCL as so amended from time to time.
(b) Neither the amendment nor repeal of this Article VI, Section 1,
nor the adoption of any provision of this Amended and Restated Certificate of
Incorporation inconsistent with this Article VI, Section 1, shall eliminate or
reduce the effect of this Article VI, Section 1, in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article VI,
Section 1, would accrue or arise, prior to such amendment, repeal or adoption of
an inconsistent provision.
Section 2. Indemnification by Corporation. (a) Subject to Article
VI, Section 2(d) below, the Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the person's conduct was unlawful.
(b) Subject to Article VI, Section 2(d) below, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including reasonable attorneys' fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding
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referred to in Article VI, Sections 2(a) and (b), or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
(d) Any indemnification under Article VI, Sections 2(a) and (b)
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
Article VI, Sections 2(a) and (b). Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (i) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (ii) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (iv)
by the stockholders of the Corporation. Such determination shall be made, with
respect to former directors, officers, employees and agents, by any person or
persons having the authority to act on the matter on behalf of the Corporation.
(e) Expenses (including reasonable attorneys' fees) incurred by an
officer, director, employee or agent in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation pursuant to this
Article VI. Such expenses (including reasonable attorneys' fees) incurred by
former directors and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the Corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any law, bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
(g) For purposes of this Article VI, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article VI with
respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
(h) For purposes of this Article VI, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a
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person with respect to an employee benefit plan; and references to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves service by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VI.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 3. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of Section 145 of the DGCL.
ARTICLE VII
By-laws
The Board shall have the power to adopt, amend or repeal by-laws of
the Corporation in accordance with the terms of the by-laws.
ARTICLE VIII
Reorganization
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
Section 291 of Title 8 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
Section 279 of Title 8 of the DGCL order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made,
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be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE IX
Business Combination Statute
Section 1. Business Combinations. The Corporation hereby elects not
to be governed by Section 203 of the DGCL.
ARTICLE X
Corporate Opportunity and Conflict of Interest Policies
Section 1. Overview. In anticipation and recognition that (i) the
Corporation shall cease to be a wholly-owned subsidiary of Calamos Family
Partners but that Calamos Family Partners (or one or more of John P. Calamos,
Nick P. Calamos and John P. Calamos, Jr. beneficially) is expected to remain a
substantial shareholder of the Corporation, (ii) the CAM Group, Calamos Family
Partners and other Calamos Persons may engage in the same areas of corporate
opportunities, and (iii) benefits shall be derived by the CAM Group through its
continued contractual, corporate and business relations with Calamos Family
Partners and other Calamos Persons (including possible services of officers and
directors of Calamos Family Partners or any other Calamos Person, as officers
and directors of the Corporation), the provisions of this Article X are set
forth to regulate and define the conduct of certain affairs of the CAM Group as
they may involve a Calamos Person and their officers and directors, and the
powers, rights, duties and liabilities of the CAM Group and its officers,
directors and stockholders in connection therewith.
Section 2. Definitions. For purposes of these provisions:
"Calamos Family Partners" means Calamos Holdings, Inc. to be renamed
Calamos Family Partners, Inc.
"Calamos Person" means (i) Calamos Family Partners, (ii) each of
John P. Calamos, Nick P. Calamos and John P. Calamos, Jr., (iii) any member of
the immediate families of John P. Calamos, Nick P. Calamos and John P. Calamos,
Jr. who is at the time an officer or director of the Corporation, (iv) each of
the John P. Calamos 1985 Trust dated August 21, 1985, The John P. Calamos
Annuity Trust dated June 21, 1998 and The John P. Calamos Annuity Trust II dated
November 1, 1998, and (v) any Person in which one or more of the Persons
qualifying as a Calamos Person pursuant to clauses (i), (ii), (iii) or (iv)
above beneficially own a controlling interest in the outstanding voting
securities or comparable interests.
"CAM Group" means the Corporation, Calamos Holdings LLC and their
respective Subsidiaries.
"control" means, with respect to the relationship between or among
two or more Persons, the possession, directly or indirectly or as trustee,
personal representative or executor,
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of the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee, personal
representative or executor, by contract, credit arrangement or otherwise.
"Corporate Opportunities" means, with respect to opportunities
potentially allocable to the CAM Group, business opportunities that (i) the CAM
Group is financially able to undertake, (ii) are, from their nature, in the line
or lines of business of a member of the CAM Group and are of practical advantage
to a member of the CAM Group, and (iii) are ones in which a member of the CAM
Group has an interest or a reasonable expectancy; provided, however, that
"Corporate Opportunities" do not include (i) transactions in which the CAM Group
or a Calamos Person is permitted to participate pursuant to any agreement
between the CAM Group and such Calamos Person that is entered into with the
affirmative vote of a majority of the independent directors of the Board or of
any committee thereof, even if the independent directors are less than a quorum,
and (ii) passive investments.
"Person" means any individual, partnership, firm, corporation,
limited liability company, association, trust, unincorporated organization or
other entity, as well as any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
"Subsidiaries" means, with respect to any Person, any and all
corporations, partnerships, limited liability companies, joint ventures,
associations and other entities controlled by such Person directly or indirectly
through one or more intermediaries.
Section 3. Corporate Opportunity Policy. (a) If a Calamos Person
acquires knowledge of a potential transaction or a matter which is a Corporate
Opportunity, such Calamos Person shall have a duty to communicate that Corporate
Opportunity to the Corporation, in which case the Corporate Opportunity shall
belong to the CAM Group.
(b) In the event that a director or officer of the CAM Group (other
than a Calamos Person) who is also a director or officer of an entity which is
at the time a Calamos Person acquires knowledge of a potential transaction or
matter which may be a Corporate Opportunity for both a Calamos Person and the
CAM Group, such Corporate Opportunity shall belong to the CAM Group, unless the
Corporate Opportunity is expressly offered to such individual primarily in his
or her capacity as a director or officer of such entity which is at the time a
Calamos Person, in which case the Corporate Opportunity shall belong to such
Calamos Person to the same extent as if the Corporate Opportunity came directly
to such Calamos Person.
(c) Any director or officer of the CAM Group (other than a Calamos
Person) who acts in accordance with the foregoing policies (i) shall be deemed
fully to have satisfied his or her fiduciary duties, including the duty of
loyalty, to the CAM Group and its stockholders with respect to such Corporate
Opportunity and not to have derived an improper benefit therefrom; (ii) shall
not be liable to the CAM Group or its stockholders for any breach of fiduciary
duty by reason of the fact that a Calamos Person pursues or acquires such
Corporate Opportunity or directs such Corporate Opportunity to another Person or
does not communicate information regarding such Corporate Opportunity to the CAM
Group; and (iii) shall be deemed to have
15
acted in good faith and in a manner he or she reasonably believes to be in the
best interests of the CAM Group.
(d) Any Corporate Opportunity that belongs to a Calamos Person or to
the CAM Group pursuant to the foregoing policy shall not be pursued by the other
(or directed by the other to another Person) unless and until such Calamos
Person or the CAM Group, as the case may be, determines not to pursue the
Corporate Opportunity. In the case of the CAM Group, any determination not to
pursue a Corporate Opportunity must be approved by a majority of the independent
directors of the Board or of any committee thereof, even if the independent
directors are less than a quorum. If the party to whom the Corporate Opportunity
belongs does not, however, within a reasonable period of time, begin to pursue,
or thereafter continue to pursue, such Corporate Opportunity diligently and in
good faith, the other party may pursue such Corporate Opportunity (or direct it
to another Person).
(e) Notwithstanding anything in this Amended and Restated
Certificate of Incorporation to the contrary, the foregoing provisions of this
Article X shall expire on the date that all Calamos Persons cease to own
beneficially Common Stock representing, in the aggregate, at least 30% of the
total voting power of all classes of outstanding voting stock of the
Corporation, voting together as a single class.
Section 4. Conflict of Interests Policy. No contract, agreement,
arrangement or transaction, or any amendment, modification or termination
thereof, or any waiver of any right thereunder, entered into, made, effected or
given after the date on which this Amended and Restated Certificate of
Incorporation becomes effective (each, a "Transaction") between the CAM Group
and (i) a Calamos Person, (ii) any entity in which a director of the CAM Group
has a financial interest (a "Related Entity"), or (iii) one or more of the
directors or officers of the CAM Group or any Related Entity; shall be voidable
solely because any of the Persons listed in (i) through (iii) above are parties
thereto, if the standard specified below is satisfied. Further, no Transaction
shall be voidable solely because any such directors or officers are present at
or participate in the meeting of the Board or committee thereof that authorizes
the Transaction or because their votes are counted for such purpose, if the
standard specified is satisfied. That standard shall be satisfied, and such
Calamos Person, the Related Entity, and the directors and officers of the CAM
Group or the Related Entity (as applicable) shall be deemed to have acted
reasonably and in good faith (to the extent such standard is applicable to such
Person's conduct) and to have fully satisfied any fiduciary duties, including
the duty of loyalty, they may have to the CAM Group and its stockholders with
respect to such Transaction if any of the following three requirements are met:
(i) the material facts as to the relationship or interest and as to
the Transaction are disclosed or known to the Board or the committee
thereof that authorizes the Transaction, and the Board or such committee
in good faith approves the Transaction by the affirmative vote of a
majority of the independent directors of the Board or of such committee,
even if the independent directors are less than a quorum;
(ii) the material facts as to the relationship or interest and as to
the Transaction are disclosed or known to the holders of voting stock of
the Corporation entitled to vote thereon, and the Transaction is
specifically approved by the vote of the holders of a
16
majority of the voting power of the then outstanding voting stock of the
Corporation not owned by such Calamos Person or such Related Entity,
voting together as a single class; or
(iii) the Transaction is effected pursuant to guidelines that are in
good faith approved by a majority of the independent directors of the
Board or of the applicable committee thereof or by vote of the holders of
a majority of the voting power of the then outstanding voting stock of the
Corporation not owned by such Calamos Person or such Related Entity,
voting together as a single class.
Such Transaction authorized, approved or effected, and each of such
guidelines so authorized or approved, as described in (i), (ii) or (iii) above,
shall be deemed to be entirely fair to the CAM Group and its stockholders,
except that, if such authorization or approval is not obtained, or such
Transaction is not so effected, no presumption shall arise that such Transaction
or guideline is not fair to the CAM Group and its stockholders.
ARTICLE XI
Amendment
The affirmative vote of the holders of at least a majority of the
issued and outstanding Common Stock, voting together as a single class, shall be
required to amend or repeal this Amended and Restated Certificate of
Incorporation; provided, however, that no such amendment shall adversely affect
the rights of the holders of Class A Common Stock or Class B Common Stock,
respectively, unless the holders of such Class A Common Stock or Class B Common
Stock, as the case may be, voting separately as a class, shall by majority vote
approve such amendment."
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation which restates, integrates and amends the provisions of the
Original Certificate of Incorporation of the Corporation, and which has been
duly adopted in accordance with Sections 242 and 245 of the DGCL, has been
executed by an authorized officer of the Corporation this 27th day of October,
2004.
CALAMOS ASSET MANAGEMENT, INC.
By: /s/ James S. Hamman, Jr.
-------------------------
Name: James S. Hamman, Jr.
Title: Executive Vice President
ATTEST:
/s/ Carole Anne D. Hussey
- ----------------------------
Name: Carole Anne D. Hussey
Title: Associate Counsel