EXHIBIT 99.5
DESCRIPTION OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
AND AMENDED AND RESTATED BYLAWS OF THE COMPANY.
CERTIFICATE OF INCORPORATION
Our amended and restated certificate of incorporation will provide for our
two classes of common stock and will also contain the provisions governing the
voting rights of our Class B common stock, the conversion of our Class B common
stock into, and the exchange of membership units in Calamos Holdings LLC not
owned by us for, shares of our Class A common stock. For a description of these
provisions, see " -- Our Board of Directors" and "Description of Capital Stock."
In addition, our amended and restated certificate of incorporation will
authorize our board of directors to, without further stockholder approval, issue
shares of preferred stock from time to time with such rights as they may
determine.
Pursuant to our amended and restated certificate of incorporation, our
board of directors will consist of five directors, two of which will be elected
by the holder of our Class B common stock, which we refer to as the "Class B
directors," and the remaining directors will be elected by all of our
stockholders voting together as a single class. Any vacancy on our board of
directors 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), may be filled only by the affirmative
vote of a majority of the remaining directors, subject to the approval of the
Class B directors. Any vacancy on our board of directors resulting from the
death, resignation, disqualification, removal or other causes with respect to a
Class B director may 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 may be filled
only by a majority vote of the holders of the Class B common stock, voting
separately as a class. 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 any 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.
Overview of Corporate Opportunity and Conflict of Interest Policies
In order to address certain potential conflicts of interest between us and
John P. Calamos, Nick P. Calamos and John P. Calamos, Jr., members of their
immediate family and affiliates, John P. Calamos, Nick P. Calamos and John P.
Calamos, Jr. have agreed to limitations on their activities in the investment
management business. See "Management -- Governance Documents -- Non-Competition
Agreements." In addition, our amended and restated certificate of incorporation
will contain provisions concerning the conduct of certain of our affairs as the
case may involve John P. Calamos, Nick P. Calamos or John P. Calamos, Jr.,
members of their immediate families and affiliates, and our powers, rights,
duties and liabilities and those of our officers, directors and stockholders in
connection therewith.
For purposes of these provisions:
"Calamos Person" means (1) Calamos Family Partners, Inc., (2) each of John
P. Calamos, Nick P. Calamos and John P. Calamos, Jr., (3) any member of the
immediate families of John P. Calamos, Nick P. Calamos and John P. Calamos, Jr.
who is at the time one of our officers or directors, (4) 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 (5) any Person in which one or a group of the persons qualifying as a
Calamos Person pursuant to clauses (1), (2), (3) or (4) above beneficially own a
controlling interest in the outstanding voting securities or comparable
interests.
"CAM Group" means us, Calamos Holdings LLC and our respective
subsidiaries.
"Corporate Opportunities" means, with respect to opportunities potentially
allocable to the CAM Group, business opportunities that (1) the CAM Group is
financially able to undertake, (2) 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 (3) 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 transactions in which a
member of the CAM Group or a Calamos Person is permitted to participate pursuant
to any agreement between a member of the CAM Group and such Calamos Person that
is entered into with the affirmative vote of a majority of the independent
directors on our board of directors or any committee of the board, even if the
independent members of our board of directors are less than a quorum, and do not
include passive investments.
Corporate Opportunity Policy
If a Calamos Person acquires knowledge of a potential transaction or a
matter which is a Corporate Opportunity, such Calamos Person will have a duty to
communicate that Corporate Opportunity to us in which case the Corporate
Opportunity will belong to the CAM Group.
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 will belong to the CAM Group, unless the
Corporate Opportunity is expressly offered to that person 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 will belong to such
Calamos Person to the same extent as if the Corporate Opportunity came directly
to such Calamos Person.
Under our amended and restated certificate of incorporation, a director or
officer of the CAM Group (other than a Calamos Person) who acts in accordance
with the foregoing policy (1) will 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; (2) will 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 (3) will be deemed to have acted in
good faith and in a manner he or she reasonably believes to be in the best
interests of the CAM Group.
Any Corporate Opportunity that belongs to a Calamos Person or to the CAM
Group pursuant to the foregoing policy will 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 on our board of directors or any committee of the board, even if the
independent members of our board of 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).
Notwithstanding anything to the contrary, the foregoing provisions will
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
our outstanding voting stock.
Conflict of Interests Policy
Our amended and restated certificate of incorporation will provide that no
contract, agreement, arrangement or transaction, or any amendment, modification
or termination of any such contract, agreement, arrangement or transaction, or
any waiver of any right thereunder, entered into, made effected or given after
the date on which this offering is consummated (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; will
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 will be voidable solely because any such directors or officers are
present at or participate in the meeting of our board of directors or committee
of the board that authorizes the Transaction or because their votes are counted
for such purpose, if the standard specified is satisfied. That standard will be
satisfied, and such Calamos Person, the Related Entity, and the directors and
officers of the CAM Group or the Related Entity (as applicable) will be deemed
to have acted reasonably and in good faith (to the extent such standard is
applicable to such person's conduct) and fully to have 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 our board of directors or the
committee of the board that authorizes the Transaction, and our board of
directors or such committee in good faith approves the Transaction by the
affirmative vote of a majority of the independent members of our board or
on 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
entitled to vote thereon, and the Transaction is specifically approved by
the vote of the holders of a majority of the voting power of the then
outstanding voting stock 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 members of our board
of directors or of the applicable committee of the board or by vote of the
holders of a majority of the voting power of the then outstanding voting
stock not owned by such Calamos Person or such Related Entity, voting
together as a single class.
Our amended and restated certificate of incorporation will also provide
that any such Transaction authorized, approved, or effected, and each of such
guidelines so authorized or approved, as described in (1), (2) or (3) above,
will 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 will arise that such Transaction or guideline is
not fair to the CAM Group and its stockholders.
For a description of the requirements for amending our amended and
restated certificate of incorporation, see "Description of Capital Stock --
Amendments."
BYLAWS
Our amended and restated bylaws will provide for the committees of our
board of directors described above under " -- Board of Directors -- Committees
of the Board." Our amended and restated bylaws will also provide for meetings of
our board and meetings of our stockholders. For a description of the provisions
governing such meetings, see "Description of Capital Stock -- Board Meetings"
and "Description of Capital Stock -- Stockholder Meetings."
Our amended and restated bylaws will provide that the business of our
company will be managed under the direction of our board of directors and that
our board may, subject to specifically provided approval procedures and except
as otherwise required by law, exercise all such powers and do all such acts and
things as may be exercised or done by us. Without limiting the general powers of
the board, our amended and restated bylaws will provide that we may not, and we
may not permit any subsidiary of ours to, and no officer, employee or agent of
ours may, take any of the following actions without the prior approval of our
board of directors:
- any merger, consolidation, dissolution or liquidation of our
company, Calamos Holdings LLC or any other subsidiary of ours or any
transaction having the same effect,
- except pursuant to the conversion or exchange rights set forth in
our amended and restated certificate of incorporation, the limited
liability company agreement of Calamos Holdings LLC, as amended or
similar constitutive documents of any other subsidiary and issuances
pursuant to the Calamos Asset Management, Inc. Incentive
Compensation Plan, (1) the authorization of any equity security of
ours or any membership unit or other equity interest in any
subsidiary of ours (including, without limitation, in each case, any
security convertible or exchangeable for such an equity security or
interest), (2) the issuance, cancellation, alteration, modification,
redemption or any change in, of, or to, any equity security of ours
(other than any Class B common stock) or any membership unit or
other equity interest in any subsidiary of ours (including, without
limitation, in each case, any security convertible or exchangeable
for such an equity security or interest), or (3) the authorization,
issuance, cancellation, alteration, modification, redemption or any
change in, of, or to, any right, option, put, call or warrant with
respect to the equity securities or other equity interest referred
to in clause (2),
- the transfer or other disposition of, or placing of any encumbrance
on, any material asset of ours, Calamos Holdings LLC or any other
subsidiary of ours, except for certain permitted encumbrances,
- the acquisition of any interest in, or the making of any loan or
extension of credit to, another person by us, Calamos Holdings LLC
or any other subsidiary of ours for or in an amount in excess of
$10,000,000; any capital expenditure (or series of related capital
expenditures) by us, Calamos Holdings LLC or any other subsidiary of
ours in excess of $10,000,000; or any debt, loan or borrowing of
ours, Calamos Holdings LLC or any other subsidiary of ours exceeding
$10,000,000 outstanding in the aggregate at any time, or any
revolving credit facility of ours, Calamos Holdings LLC or any other
subsidiary of ours permitting aggregate borrowings at any one time
outstanding to exceed $10,000,000,
- adoption and approval of any business plan for our company, Calamos
Holdings LLC or any other subsidiary of ours, and
- adoption of any incentive or other employee benefit plan by our
company, Calamos Holdings LLC or any other subsidiary of ours.
Additionally, the following actions will require the approval of the Class
B directors:
- any merger, consolidation, dissolution or liquidation of our
company, Calamos Holdings LLC or any other subsidiary of ours or any
transaction having the same effect, and
- except pursuant to the conversion or exchange rights set forth in
our amended and restated certificate of incorporation, the limited
liability company agreement of Calamos Holdings LLC, as amended or
similar constitutive documents of any other subsidiary and issuances
pursuant to the Calamos Asset Management, Inc. Incentive
Compensation Plan, (1) the authorization of any equity security of
ours or any membership unit or other equity interest in any
subsidiary of ours (including, without limitation, in each case, any
security convertible or exchangeable for such an equity security or
interest), (2) the issuance, cancellation, alteration, modification,
redemption or any change in, of, or to, any equity security of ours
(other than any Class B common stock) or any membership unit or
other equity interest in any subsidiary of ours (including, without
limitation, in each case, any security convertible or exchangeable
for such an equity security or interest), or (3) the authorization,
issuance, cancellation, alteration, modification, redemption or any
change in, of, or to, any right, option, put, call or warrant with
respect to the equity securities or other equity interest referred
to in clause (2).
The amended and restated bylaws will further provide that the following
actions will require the approval of the Class B directors and a majority of the
independent members of our board of directors:
- any amendment, change or other modification or restatement of our
certificate of incorporation or bylaws, the limited liability
company agreement of Calamos Holdings LLC or any similar
constitutive document of any other subsidiary of ours (other than
any amendment to effect a merger or consolidation or any transaction
having the same effect), and
- the conduct by us, Calamos Holdings LLC or any other subsidiary of
ours of any business other than the investment advisory or
investment management business and any ancillary or related
businesses, or the establishment of a new entity to conduct any such
business, and
- the authorization, issuance, cancellation, alteration, modification,
redemption or any change in, of, or to, any Class B common stock or
any right, option, put, call or warrant with respect to any Class B
common stock.
Our officers will be appointed by the board of directors, except for our
chairman and chief executive officer who will be appointed by the Class B
directors, subject to the approval of a majority of the other members of the
board of directors; provided, however, that our chairman and chief executive
officer may be removed by a majority of the members of our board of directors.
For a description of the requirements for amending our amended and
restated bylaws, see "Description of Capital Stock -- Amendments."
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock and provisions of our
amended and restated certificate of incorporation, and the amended and restated
bylaws, each of which will be in effect prior to the date of this prospectus,
are summaries and are qualified by reference to the amended and restated
certificate of incorporation and the amended and restated bylaws, copies of
which have been filed with the Commission as exhibits to our registration
statement, of which this prospectus forms a part.
Our current authorized capital stock consists of 1,000 shares of common
stock, par value $0.01 per share. As of the consummation of this offering, our
authorized capital stock will consist of 600,000,000 shares of Class A common
stock, par value $0.01 per share, and 1,000 shares of Class B common stock, par
value $0.01 per share.
COMMON STOCK
As of the consummation of this offering, there will be 20,000,000 shares
of Class A common stock issued and outstanding, and 100 shares of Class B common
stock issued and outstanding and beneficially held of record by Calamos Family
Partners, Inc.
CLASS A COMMON STOCK
Voting Rights
The holders of Class A common stock will be entitled to one vote per
share. Holders of shares of Class A common stock will not be entitled to
cumulate their votes in the election of directors. Generally, all matters to be
voted on by stockholders must be approved by a majority (or, in the case of
election of directors, by a plurality) of the votes entitled to be cast by all
shares of Class A common stock and Class B common stock present in person or
represented by proxy, voting together as a single class. Except as otherwise
provided by law, amendments to the amended and restated certificate of
incorporation must be approved by a majority of the combined voting power of all
shares of Class A common stock and Class B common stock, voting together as a
single class. However, amendments to the amended and restated certificate of
incorporation that would alter or change the powers, preferences or special
rights of the Class A common stock so as to affect them adversely also must be
approved by a majority of the votes entitled to be cast by the holders of the
shares affected by the amendment, voting as a separate class. Notwithstanding
the foregoing, any amendment to our amended and restated certificate of
incorporation to increase or decrease the authorized shares of any class shall
be approved upon the affirmative vote of the holders of a majority of the common
stock, voting together as a single class.
Dividend Rights
Holders of Class A common stock will share ratably (based on the number of
shares of common stock held) in any dividend declared by the Board of Directors.
Dividends consisting of shares of Class A common stock may be paid only as
follows: (i) shares of Class A common stock may be paid only to holders of
shares of Class A common stock; and (ii) shares shall be paid proportionally
with respect to each outstanding share of Class A common stock. We may not
subdivide or combine shares of either class of Common Stock without at the same
time proportionally subdividing or combining shares of the other class.
Dividends payable to holders of Class B common stock can only be paid if
dividends in the same amount per share are simultaneously paid to holders of
Class A common stock.
Liquidation Rights
On our liquidation, dissolution or winding up, all holders of Class A
common stock, will be entitled to share ratably in any assets available for
distribution to holders of shares of common stock.
Other Matters
In the event of our merger or consolidation with or into another company
in connection with which shares of common stock are converted into or
exchangeable for shares of stock, other securities or property (including cash),
all holders of common stock, regardless of class, will be entitled to receive
the same kind and amount of shares of stock and other securities and property
(including cash), provided that if shares of common stock are exchanged for
shares of capital stock, such shares exchanged for or changed into may differ to
the extent that the Class A common stock and the Class B common stock differ.
No shares of any class of common stock will be subject to redemption or
have preemptive rights to purchase additional shares of common stock. Upon
consummation of this offering, all the outstanding shares of Class A common
stock will be legally issued, fully paid and non-assessable.
CLASS B COMMON STOCK
Voting Rights
The holders of Class B common stock will be entitled to a number of votes
per share equal to:
(1) ten, multiplied by the sum of (a) the aggregate number of shares of
Class B common stock owned by such holder and (b) the aggregate number of
membership units owned by such holder, divided by
(2) the number of shares of Class B common stock owned by such holder.
Holders of shares of Class B common stock will not be entitled to cumulate
their votes in the election of directors. Generally, all matters to be voted on
by stockholders must be approved by a majority (or, in the case of election of
directors, by a plurality) of the votes entitled to be cast by all shares of
Class B common stock and Class A common stock present in person or represented
by proxy, voting together as a single class. Except as otherwise provided by
law, amendments to the amended and restated certificate of incorporation must be
approved by a majority of the combined voting power of all shares of Class B
common stock and Class A common stock, voting together as a single class.
However, amendments to the amended and restated certificate of incorporation
that would alter or change the powers, preferences or special rights of the
Class B common stock so as to affect them adversely also must be approved by a
majority of the votes entitled to be cast by the holders of the shares affected
by the amendment, voting as a separate class. Notwithstanding the foregoing, any
amendment to our amended and restated certificate of incorporation to increase
or decrease the authorized shares of any class shall be approved upon the
affirmative vote of the holders of a majority of the Common Stock, voting
together as a single class.
Conversion
Each share of our Class B common stock will be convertible at the option
of the holder into one share of our Class A common stock. Any shares of Class B
common stock transferred to a person other than a member of the Calamos family
or any entity controlled by one or more members of the Calamos family shall
automatically convert to shares of our Class A common stock upon such
disposition. If the number of outstanding shares of our Class B common stock
plus the number of membership units in Calamos Holdings LLC and shares of Class
A common stock owned by the holders of the Class B common stock falls below 15%
of the total number of outstanding membership units in Calamos Holdings LLC,
then all outstanding shares of our Class B common stock shall automatically
convert into our Class A common stock.
Dividend Rights
Holders of Class B common stock will share ratably (based on the number of
shares of common stock held) in any dividend declared by the board of directors.
Dividends consisting of shares of Class B common stock may be paid only as
follows: (i) shares of Class B common stock may be paid only to holders of
shares of Class B common stock; and (ii) shares shall be paid proportionally
with respect to each outstanding share of Class B common stock. We may not
subdivide or combine shares of either class of Common Stock without at the same
time proportionally subdividing or combining shares of the other class.
Dividends payable to holders of Class B common stock can only be paid if
dividends in the same amount per share are simultaneously paid to holders of
Class A common stock.
Liquidation Rights
On our liquidation, dissolution or winding up, all holders of Class B
common stock, will be entitled to share ratably in any assets available for
distribution to holders of shares of common stock.
Other Matters
In the event of our merger or consolidation with or into another company
in connection with which shares of common stock are converted into or
exchangeable for shares of stock, other securities or property (including cash),
all holders of common stock, regardless of class, will be entitled to receive
the same kind and amount of shares of
stock and other securities and property (including cash), provided that, if
shares of common stock are exchanged for shares of capital stock, such shares
exchanged for or changed into may differ to the extent that the Class A common
stock and the Class B common stock differ.
No shares of any class of common stock will be subject to redemption or
will have preemptive rights to purchase additional shares of common stock. Upon
consummation of this offering, all the outstanding shares of Class B common
stock will be legally issued, fully paid and nonassessable.
ANTI-TAKEOVER EFFECTS OF THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
AND AMENDED AND RESTATED BYLAWS
Provisions of the amended and restated certificate of incorporation and
amended and restated bylaws, which provisions will be in effect prior to the
consummation of this offering and are summarized in the following paragraphs,
may be deemed to have an anti-takeover effect and may delay, defer or prevent a
tender offer or takeover attempt that a stockholder might consider in its best
interest, including those attempts that might result in a premium over the
market price for the shares held by stockholders. The relevant portions of the
amended and restated certificate of incorporation and amended and restated
bylaws will be designed to discourage certain types of transactions that may
involve an actual or threatened change of control of our company. These
provisions are meant to encourage persons interested in acquiring control of our
company to first consult with the board of directors to negotiate terms of a
potential business combination or offer. Further, these provisions will protect
against an unsolicited proposal for our takeover that may affect the long-term
value of our stock or that may be otherwise unfair to our stockholders.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
We will not be subject to Section 203 of the Delaware General Corporation
Law, an anti-takeover law. In general, Section 203 prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years following the date the
person became an interested stockholder, unless (with certain exceptions) the
"business combination" or the transaction in which the person became an
interested stockholder is approved in a prescribed manner. Generally, a
"business combination" includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested stockholder.
Generally, an "interested stockholder" is a person who, together with affiliates
and associates, owns (or within three years prior to the determination of
interested stockholder status, did own) 15% or more of a corporation's voting
stock. We have elected not to be bound by Section 203.
DIRECTOR'S EXCULPATION AND INDEMNIFICATION
We will include in our amended and restated certificate of incorporation
provisions to indemnify our directors and officers to the fullest extent
permitted by Delaware law. The amended and restated certificate of incorporation
will also include provisions to eliminate the personal liability of our
directors and officers to us and our stockholders to the fullest extent
permitted by Delaware law. Under current law, such exculpation would extend to
an officer's or director's breaches of fiduciary duty, except for (i) breaches
of such person's duty of loyalty, (ii) those instances where such person is
found not to have acted in good faith, (iii) those instances where such person
received an improper personal benefit as the result of such breach and (iv) acts
in violation of Section 174 of the Delaware General Corporation Law. Our amended
and restated bylaws will provide that we will indemnify our directors, officers
and employees against judgments, fines, amounts paid in settlement and
reasonable expenses. Insofar as the indemnification for liabilities resulting
under the Securities Act may be permitted to our directors or officers, we have
been informed that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is unenforceable.
BOARD OF DIRECTORS
Our board of directors will consist of five directors, three of whom will
be independent directors. Any vacancy on our board of directors 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), may be filled only by the affirmative vote of a majority of
the remaining directors, subject to the approval of the Class B directors. Any
vacancy on our board of directors resulting from the death, resignation,
disqualification, removal or other causes with respect to a Class B director may
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. The limitation on filling of vacancies could make
it more difficult for a third party to acquire, or discourage a third party from
attempting to acquire, control of our company.
BOARD MEETINGS
Our amended and restated bylaws will provide that special meetings of the
board of directors may be called by the chairman of our board of directors or by
a majority of the then authorized number of directors in office.
STOCKHOLDER MEETINGS
SPECIAL MEETINGS OF STOCKHOLDERS
The amended and restated bylaws will provide that special meetings of the
stockholders may only be called by the chairman of our board of directors, by a
committee that is duly designated by the board or by resolution adopted by the
affirmative vote of the majority of the board of directors.
REQUIREMENTS FOR ADVANCE NOTIFICATION OF STOCKHOLDER NOMINATIONS AND
PROPOSALS
The amended and restated bylaws will provide that stockholders seeking to
bring business before an annual meeting of stockholders, or to nominate
candidates for election as directors at an annual meeting of stockholders, must
provide timely notice of such proposed business in writing. To be timely, a
stockholder's notice must be delivered to or mailed and received at our
principal executive offices, not less than 60 days nor more than 90 days prior
to the annual meeting. The amended and restated bylaws will also specify certain
requirements as to the form and content of a stockholder's notice. These
provisions may preclude stockholders from bringing matters before an annual
meeting of stockholders or from making nominations for directors at an annual
meeting of stockholders.
STOCKHOLDER ACTION BY WRITTEN CONSENT
For so long as shares of our Class B common stock are issued and
outstanding, any action required to be taken at any annual or special meeting of
the stockholders, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing (or deemed to be in writing
under applicable law), setting forth the action so taken, is signed by
stockholders (or deemed to be signed by stockholders under applicable law)
representing not less than the minimum number of votes that would be necessary
to authorize or take such actions at a meeting at which all shares entitled to
vote thereon were present and voted and is delivered and dated as required by
law.
CUMULATIVE VOTING
Our amended and restated certificate of incorporation will provide that
our stockholders will have no cumulative voting rights.
AUTHORIZED BUT UNISSUED SHARES
The authorized but unissued shares of our common stock will be available
for future issuance without stockholder approval. These additional shares may be
utilized for a variety of corporate purposes, including future public offerings
to raise additional capital, corporate acquisitions and employee benefit plans.
The existence of authorized but unissued shares of common stock could render
more difficult or discourage an attempt to obtain control over us by means of a
proxy contest, tender offer, merger or otherwise.
AMENDMENTS
The Delaware General Corporation Law provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or by-laws,
unless a corporation's certificate of incorporation or by-laws, as the case may
be, requires a greater percentage. The affirmative vote of the holders of at
least a majority of the issued and outstanding common stock and any preferred
stock, voting as one class, is required to amend or repeal the amended and
restated certificate of incorporation, provided that if any amendment to our
amended certificate of incorporation would alter the rights of a particular
class of stock so as to affect them adversely, the amendment must also be
approved by a majority of the votes entitled to be cast by the holders of the
shares affected by the amendment, voting as a separate class. Subject to the
amended and restated bylaws, the board of directors may from time to time make,
amend, supplement or repeal the amended and restated bylaws by vote of a
majority of the board of directors; provided, however, that the stockholders may
change or amend or repeal any provision of the amended and restated bylaws by
the affirmative vote of the holders of a majority of the common stock and any
preferred stock, voting as one class.
MEMBERSHIP UNITS
Immediately following this offering, there will be 100,000,000 membership
units issued and outstanding, 20,000,000 of which will be beneficially owned by
us, and 80,000,000 of which will be beneficially owned by Calamos Family
Partners, Inc. and John P. Calamos in the aggregate. The number of outstanding
membership units owned by us will at all times equal the number of shares of
outstanding Class A common stock. The net cash proceeds received by us from any
issuance of shares of common stock, including with regard to the exercise of
options granted under the incentive compensation plan, shall be concurrently
transferred to Calamos Holdings LLC in exchange for membership units equal in
number to such number of shares of common stock issued by us.
The membership units will have no voting rights associated with them.
Pursuant to the terms of the amended and restated certificate of incorporation,
each membership unit not owned by us is exchangeable for one share of Class A
common stock at any time at the holder's option.
REGISTRATION RIGHTS
In connection with this offering, we will enter into an agreement with
Calamos Family Partners, Inc. and John P. Calamos that will grant registration
rights with respect to shares of Class A common stock, which we refer to as
registrable securities, issuable to Calamos Family Partners, Inc. upon
conversion of shares of Class B common stock or in exchange for membership units
in Calamos Holdings LLC. See "Certain Relationships and Related Party
Transactions -- Registration Rights Agreement."
NASDAQ NATIONAL MARKET TRADING
Our Class A common stock has been approved for quotation on the Nasdaq
National Market under the symbol CLMS.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Class A common stock is The Bank
of New York.