Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
INTER-ATLANTIC FINANCIAL INC.
Inter-Atlantic Financial, Inc., a corporation organized and existing under
and by virtue of the provisions of the General Corporation Law of the State of
Delaware (the "General Corporation Law"), hereby certifies that:
1. The present name of the corporation is "Inter-Atlantic Financial, Inc."
(hereinafter sometimes referred to as the "Corporation").
2. The Corporation's original Certificate of Incorporation (the "Original
Certificate of Incorporation") was filed in the office of the Secretary of State
of Delaware on January 12, 2007 and amended and restated on February 7, 2007.
3. This Amended and Restated Certificate of Incorporation (this "Amended
and Restated Certificate of Incorporation") amends and restates in its entirety
the Original Certificate of Incorporation (including all amendments thereto).
4. The Amended and Restated Certificate of Incorporation (including all
amendments thereto) shall be amended and restated to read in its entirety as
follows:
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FIRST: The name of the corporation is Inter-Atlantic Financial, Inc. (the
"Corporation").
SECOND: The registered office of the Corporation is to be located at 2711
Centerville Road, Suite 400, Wilmington, Delaware 19808. The name of its
registered agent at that address is Corporation Service Company.
THIRD: Subject to the immediately succeeding sentence, the purpose of the
Corporation shall be to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law ("GCL"). In
addition to the powers and privileges conferred upon the Corporation by law and
those incidental thereto, the Corporation shall possess and may exercise all the
powers and privileges which are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the Corporation;
provided, however, that in the event a Business Combination (as defined below)
is not consummated prior to the Termination Date (as defined below), then the
purposes of the Corporation shall automatically, with no action required by the
board of directors (the "Board") or the stockholders, on the Termination Date be
limited to effecting and implementing the dissolution and liquidation of the
Corporation and the taking of any other actions expressly required to be taken
herein on or after the Termination Date and the Corporation's powers shall
thereupon be limited to those set forth in Section 278 of the GCL and as
otherwise may be necessary to implement the limited purposes of the Corporation
as provided herein. This Article Third may not be amended without the
affirmative vote of at least 95% of the IPO Shares (as defined below) cast at a
meeting of the Stockholders of the Corporation.
FOURTH: The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 50,000,000 of which 49,000,000
shares shall be common stock of the par value of $.0001 per share ("Common
Stock") and 1,000,000 shares shall be preferred stock of the par value of $.0001
per share ("Preferred Stock").
(A) Preferred Stock. The Board is expressly granted authority to issue
shares of the Preferred Stock, in one or more series, and to fix for each such
series such voting powers, full or limited, and such designations, preferences
and relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions adopted by the Board providing for
the issue of such series (a "Preferred Stock Designation") and as may be
permitted by the GCL. The number of authorized shares of Preferred Stock 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 voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, without a separate vote of the holders of the
Preferred Stock, or any series thereof, unless a vote of any such holders is
required pursuant to any Preferred Stock Designation.
(B) Common Stock. Except as otherwise required by law or as otherwise
provided in any Preferred Stock Designation, the holders of the Common Stock
shall exclusively possess all voting power and each share of Common Stock shall
have one vote. The holders of Common Stock shall have no conversion rights other
than as set forth in subparagraph C of ARTICLE SIXTH hereof. Subject to the
preferential dividend rights, if any, applicable to shares of Preferred Stock,
the holders of shares of Common Stock shall be entitled to receive only such
dividends as may be declared by the Board of Directors. Except as set forth in
ARTICLE SIXTH, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, after distribution in full of the
preferential amounts to be distributed to the holders of shares of Preferred
Stock, the holders of shares of Common Stock shall be entitled, ratably, in
proportion to the number of shares held by them, to receive all of the remaining
assets of the Corporation available for distribution to holders of Common Stock.
FIFTH: The Corporation's existence shall terminate on _______________, 2009
(the "Termination Date"). This ARTICLE FIFTH may not be amended without the
affirmative vote of at least 95% of the IPO Shares (as defined below) unless
such Amendment is in connection with, and becomes effective upon, the
consummation of a Business Combination (as defined below). A proposal to so
amend this ARTICLE FIFTH shall be submitted to stockholders in connection with
any proposed Business Combination pursuant to ARTICLE SIXTH below.
SIXTH: The following provisions (A) through (G) shall apply during the
period commencing upon the consummation of the IPO and terminating upon the
consummation of any "Business Combination," and may not be amended during the
"Target Business Acquisition Period" without the affirmative vote of at least
95% of the IPO Shares (as defined below) cast at a meeting of stockholders of
the Corporation. A "Business Combination" shall mean the acquisition by the
Corporation, whether by merger, capital stock exchange, asset or stock
acquisition or other similar type of transaction, of a domestic or foreign
operating business or businesses in or related to the financial services
industry having collectively, a fair market value (as calculated in accordance
with the requirements set forth below) of at least 80% of the Corporation's net
assets at the time of the acquisition, provided, that, any acquisition of
multiple operating businesses shall occur contemporaneously with one another
("Target Business"). The "Target Business Acquisition Period" shall mean the
period from the effectiveness of the registration statement filed in connection
with the Corporation's initial public offering of securities ("IPO") up to and
including the first to occur of (a) a Business Combination or (b) the
Termination Date (defined below). For purposes of this Article, fair market
value shall be determined by the Board based upon standards generally accepted
by the financial community, such as actual and potential sales, earnings and
cash flow, and book value. If the Board is not able to independently determine
that the Target Business has a sufficient fair market value, or if a conflict of
interest exists, the Corporation will obtain an opinion from an unaffiliated,
independent third party appraiser that is a member of the National Association
of Securities Dealers, Inc.
(A) Immediately after the Corporation's IPO, the amount of the net
offering proceeds received by the Corporation in the IPO (including the proceeds
of any exercise of the underwriter's over-allotment option) specified in the
Corporation's registration statement on Form S-1 filed with the Securities and
Exchange Commission (the "Registration Statement") at the time it goes effective
shall be deposited and thereafter held in a trust account established by the
Corporation (the "Trust Account"). Neither the Corporation nor any officer,
director or employee of the Corporation shall disburse any of the proceeds held
in the Trust Account until the earlier of (i) a Business Combination or (ii) the
liquidation of the Corporation as discussed in Paragraph D below, in each case
in accordance with the terms of the investment management trust agreement
governing the Trust Account; provided, however, that (x) up to $1,000,000 of the
interest earned on the Trust Account may be released to the Corporation to cover
operating expenses, and (y) the Corporation shall be entitled to withdraw such
amounts from the Trust Account as would be required to pay taxes on the interest
earned on the Trust Account and to pay the Corporation's franchise taxes.
Notwithstanding the foregoing, in no event may interest earned on the Trust
Account be released pursuant to clause (x) of the preceding sentence if such
release would reduce the balance in the Trust Account below the balance
immediately following the consummation of the Corporation's IPO.
(B) Prior to the consummation of any Business Combination, the
Corporation shall submit such Business Combination to its stockholders for
approval regardless of whether the Business Combination is of a type which
normally would require such stockholder approval under the GCL. In the event
that a majority of the shares cast at the meeting to approve the Business
Combination are voted for the approval of such Business Combination, the
Corporation shall be authorized to consummate the Business Combination; provided
that the Corporation shall not consummate any Business Combination if the
holders of 30% or more of the IPO Shares (as defined below) exercise their
redemption rights described in Paragraph C below.
(C) In the event that a Business Combination is approved in accordance
with the above Paragraph B and is consummated by the Corporation, any
stockholder of the Corporation holding shares of Common Stock issued in the IPO
(the "IPO Shares") who voted against the Business Combination may,
contemporaneous with such vote, demand that the Corporation redeem his IPO
Shares for cash. If so demanded, the Corporation shall, promptly after
consummation of the Business Combination, redeem such shares for cash at a per
share redemption price equal to the quotient determined by dividing (i) the
amount of the Trust Account (inclusive of any interest earned thereon, less (x)
any amount necessary to pay accrued federal, state or local income tax on such
interest, calculated as of two business days prior to the consummation of the
Business Combination, and (y) up to an aggregate amount of $1,000,000 of the
interest earned on the Trust Account, net of taxes payable, which will be
released to the Corporation upon its demand, and (c) the deferred portion of the
IPO underwriters' deferred discount), by (ii) the total number of IPO Shares
outstanding at that date.
(D) A holder of IPO Shares shall be entitled to receive funds from the
Trust Account only in the event of (i) a liquidation of the Trust Account to
holders of IPO Shares in connection with the dissolution of the Corporation
pursuant to the terms of the investment management trust agreement governing the
Trust Account or (ii) in the event he demands redemption of his shares in
accordance with paragraph (C), above. In no other circumstances shall a holder
of IPO Shares have any right or interest of any kind in or to the Trust Account
or any amount or other property held therein. A holder of securities issued in
the private placement concurrently with or prior to the consummation of the IPO
shall not have any right or interest of any kind in or to the Trust Account.
(E) Unless and until the Corporation has consummated a Business
Combination as permitted under this Article Sixth, the Corporation may not
consummate any other business combination, whether by merger, capital stock
exchange, stock purchase, asset acquisition or otherwise.
SEVENTH: Subject to any rights of the holders of any series of Preferred
Stock to elect additional directors (as specified in any Preferred Stock
Designation related to such series of Preferred Stock), the Board shall be
divided into three classes: Class A, Class B and Class C. The number of
directors in each class shall be as nearly equal as possible. The directors in
Class A shall be elected for a term expiring at the first Annual Meeting of
Stockholders, the directors in Class B shall be elected for a term expiring at
the second Annual Meeting of Stockholders and the directors in Class C shall be
elected for a term expiring at the third Annual Meeting of Stockholders.
Commencing at the first Annual Meeting of Stockholders, and at each annual
meeting thereafter, directors elected to succeed those directors whose terms
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. Except as the GCL may
otherwise require, in the interim between annual meetings of stockholders or
special meetings of stockholders called for the election of directors and/or the
removal of one or more directors and the filling of any vacancy in that
connection, newly created directorships and any vacancies in the Board,
including unfilled vacancies
resulting from the removal of directors for cause, may be filled by the vote of
a majority of the remaining directors then in office, although less than a
quorum (as defined in the Corporation's Bylaws), or by the sole remaining
director. All directors shall hold office until the expiration of their
respective terms of office and until their successors shall have been elected
and qualified. A director elected to fill a vacancy resulting from the death,
resignation or removal of a director shall serve for the remainder of the full
term of the director whose death, resignation or removal shall have created such
vacancy and until his successor shall have been elected and qualified.
EIGHTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(A) The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the Board of Directors shall be fixed
exclusively by resolutions adopted by a majority of the authorized number of
directors constituting the Board of Directors.
(B) Election of directors need not be by ballot unless the by-laws of
the Corporation so provide.
(C) The Board shall have the power, without the assent or vote of the
stockholders, to make, alter, amend, change, add to or repeal the by-laws of the
Corporation as provided in the by-laws of the Corporation.
(D) The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and binding upon the Corporation and upon all the
stockholders as though it had been approved or ratified by every stockholder of
the Corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interests, or for any other reason.
(E) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this Certificate of Incorporation, and to any by-laws
from time to time made by the stockholders; provided, however, that no by-law so
made shall invalidate any prior act of the directors which would have been valid
if such by-law had not been made.
NINTH:
(A) A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction
from which the director derived an improper personal benefit. To the fullest
extent permitted by the Delaware General Corporation Law, as the same exists or
may hereafter be amended, a director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. If the GCL is amended to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the GCL, as so amended. Any repeal or
modification of this paragraph A by the stockholders of the Corporation shall
not adversely affect any right or protection of a director of the Corporation
with respect to events occurring prior to the time of such repeal or
modification.
(B) The Corporation, to the full extent permitted by Section 145 of
the GCL, as amended from time to time, shall indemnify all persons whom it may
indemnify pursuant thereto. Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding for which such officer or director may
be entitled to indemnification hereunder shall 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 he is not entitled to be
indemnified by the Corporation as authorized hereby.
TENTH: 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 Delaware Code 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 Delaware Code 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, 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.
ELEVENTH: Prior to the date and time of the closing of the Corporation's
IPO, this Third Amended and Restated Certificate of Incorporation may be amended
by the written consent of the holders of a majority of the issued and
outstanding stock of the Corporation in accordance with Section 228 of the
General Corporation Law.
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5. The foregoing amendment and restatement has been duly adopted in
accordance with the provisions of Section 141, 242 and 245 of the General
Corporation Law by the directors of the Corporation, and in accordance with the
provisions of Sections 228, 242 and 245 by the holders of a majority of the
issued and outstanding stock of the Corporation.
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IN WITNESS WHEREOF, Inter-Atlantic Financial, Inc. has caused this Amended
and Restated Certificate of Incorporation to be signed by Andrew Lerner, its
Chief Executive Officer, on the __th day of ___________ 2007.
/s/ Andrew S. Lerner
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Andrew S. Lerner
Chief Executive Officer