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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
TAILWIND FINANCIAL INC.
Tailwind Financial Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"CORPORATION"), does hereby certify as follows:
1. The name of the Corporation is Tailwind Financial Inc. The date
of filing of the Corporation's original Certificate of Incorporation with the
Secretary of State was June 30, 2006.
2. The Amended and Restated Certificate of Incorporation of Tailwind
Financial Inc., in the form attached hereto as EXHIBIT A, has been duly adopted
in accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware by the directors and stockholders of
the Corporation.
3. The Amended and Restated Certificate of Incorporation of Tailwind
Financial Inc. so adopted reads in its entirety as set forth in EXHIBIT A
attached hereto and is incorporated herein by reference.
4. This Certificate shall be effective on the date of filing with
the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be executed by its Chairman on this
_______ day of _____, 2006.
Tailwind Financial Inc.
By: /s/ Gordon A. McMillan
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Gordon A. McMillan, Assistant Secretary
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
TAILWIND FINANCIAL INC.
FIRST: The name of the corporation is Tailwind Financial Inc. (the
"CORPORATION").
SECOND: The registered office of the Corporation is to be located at 2711
Centerville Road Suite 400, in the City of Wilmington, County of New Castle,
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 of the State of
Delaware ("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 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 75,000,000 of which 70,000,000
shares shall be common stock of the par value of $.01 per share ("COMMON STOCK")
and 5,000,000 shares shall be preferred stock of the par value of $.01 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.
FIFTH: The following provisions (A) through (E) shall apply during the
period commencing upon the filing of this Amended and Restated Certificate of
Incorporation and shall terminate upon the consummation of any Business
Combination (as defined below), and may not be amended during the Target
Business Acquisition Period (as defined below) 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,
exchangeable share transaction, asset or stock acquisition or other similar type
of transaction, of an operating business or businesses having collectively, a
fair market value
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(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, HOWEVER, 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 (as 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 investment banking firm with
respect to the satisfaction of such criteria.
(A) Immediately after the 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 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.
(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 20% or more of the IPO Shares (as defined below) exercise
their conversion 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
convert his, her or its IPO Shares into cash. If so demanded, the Corporation
shall, promptly after consummation of the Business Combination, convert such
shares into cash at a per share conversion price equal to (i) the amount held
in the Trust Account (net of taxes payable), less the portion of the proceeds
attributable to the underwriters' deferred compensation (calculated as of two
business days prior to the consummation of the Business Combination), divided
by (ii) the total number of IPO Shares.
(D) In the event that the Corporation does not consummate a Business
Combination by the later of (i) 18 months after the consummation of the IPO or
(ii) 24 months after the consummation of the IPO in the event that either a
letter of intent, an agreement in principle or a definitive agreement to
complete a Business Combination was executed but was not consummated within such
18 month period (such later date being referred to as the "TERMINATION DATE"),
the directors and officers of the Corporation shall take all such action
necessary to dissolve the Corporation and liquidate the Trust Account to holders
of IPO Shares as soon as reasonably practicable, and after approval of the
Corporation's stockholders and subject to the requirements of the GCL, including
the adoption of a resolution by the Board, prior to such Termination Date,
pursuant to Section 275(a) of the GCL, in which the Board finds the dissolution
of the Corporation advisable and providing such notices as are required by said
Section 275(a) of the GCL as promptly thereafter as possible. In the event that
the stockholders vote in favor of such dissolution and the Corporation is so
dissolved, the Corporation shall promptly adopt and implement a plan of
distribution which provides that only the holders of IPO Shares shall be
entitled to share ratably in the Trust Fund plus any other net assets of the
Corporation not used for or reserved to pay obligations and claims or such other
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corporate expenses relating to or arising during the Corporation's remaining
existence, including costs of dissolving and liquidating the Corporation. The
Corporation shall pay no liquidating distributions with respect to any shares
of capital stock of the Corporation other than IPO Shares.
(E) A holder of IPO Shares shall be entitled to receive funds from
the Trust Account only in the event of 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 in the event he, she or it demands conversion of such
IPO Shares in accordance with Paragraph (B), 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. A holder of shares issued in a 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.
(F) Unless and until the Corporation has consummated a Business
Combination as permitted under this Article Fifth, the Corporation may not
consummate any other business combination, whether by merger, capital stock
exchange, stock purchase, asset acquisition, exchangeable share transaction or
otherwise.
(G) The Board shall be divided into three classes: Class I, Class
II and Class III. The number of directors in each class shall be as nearly
equal as possible. At the first election of directors by the incorporator,
the incorporator shall elect a Class III director for a term expiring at the
Corporation's third annual meeting of stockholders. The Class III director
shall then appoint additional Class I, Class II and Class III directors, as
necessary. The directors in Class I shall be elected for a term expiring at
the first annual meeting of stockholders following the IPO, the directors in
Class II shall be elected for a term expiring at the second annual meeting of
stockholders following the IPO and the directors in Class III shall be
elected for a term expiring at the third annual meeting of stockholders
following the IPO. 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 or her successor shall have been elected and qualified.
SIXTH: 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) Election of directors need not be by ballot unless the by-laws of
the Corporation so provide.
(B) 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.
(C) The directors in their discretion may submit any contract or
act for approval or ratification at any annual meeting of stockholders or at
any special meeting of 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
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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.
(D) 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 Amended and Restated 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.
SEVENTH:
(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. 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.
EIGHTH: 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 GCL 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 GCL 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.
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