Attached files
| file | filename |
|---|---|
| 8-K - 8-K - Halo Companies, Inc. | gvchalo_8k121509.htm |
| EX-3.3 - EXHIBIT 3.3 - Halo Companies, Inc. | gvchalo_8k121509ex33.htm |
| EX-3.2 - EXHIBIT 3.2 - Halo Companies, Inc. | gvchalo_8k121509ex32.htm |
| EX-99.1 - EXHIBIT 99.1 - Halo Companies, Inc. | gvchalo_8k121509ex991.htm |
EXHIBIT
3.1
RESTATED
CERTIFICATE
OF INCORPORATION
OF
GVC
VENTURE CORP.
(Pursuant
to Sections 245 and 242 of the General
Corporation
Law of the State of Delaware)
GVC
VENTURE CORP., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the “Corporation”), does
hereby, pursuant to the provisions of Sections 245 and 242 of the General
Corporation Law of the State of Delaware, amend and restate in its entirety the
Corporation’s Certificate of Incorporation. The Certificate of
Incorporation of the Corporation was originally filed on December 9, 1986 and
the name under which the Corporation was originally incorporated was Grow
Ventures Corp. The amendments and additions made by this Restated
Certificate of Incorporation have been duly authorized by the Board of Directors
of the Corporation and approved by written consent of the stockholders of the
Corporation, all in conformity with the provisions of the General Corporation
Law of the State of Delaware. This Restated Certificate of
Incorporation was duly adopted in accordance with the provisions of Sections 245
and 242 of the General Corporation Law of the State of Delaware.
The
Corporation’s Certificate of Incorporation is hereby superseded by the following
Restated Certificate of Incorporation.
FIRST: The name
of the corporation (the “Corporation”) is Halo Companies, Inc.
SECOND: The
address of the Corporation’s registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The
nature of the business and the purposes to be conducted or promoted by the
Corporation are to engage in, carry on and conduct any lawful act or activity
for which corporations may be now or hereafter organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total
number of shares of which the Corporation shall have authority to issue is Three
Hundred Seventy-Six Million (376,000,000), of which Three Hundred Seventy-Five
Million (375,000,000) shall be Common Stock with a par value of $0.001 per
share, and One Million shall be Preferred Stock with a par value of $0.001 per
share.
No holder
of any shares of any class of stock of the Corporation now or hereafter
authorized shall have any pre-emptive right or be entitled as a matter of right
as such holder to purchase, subscribe for or otherwise acquire any shares of
stock of the Corporation of any class now or hereafter authorized or any
securities convertible into or exchangeable for any such shares, or any warrants
or other instruments evidencing rights or options to subscribe for, purchase or
otherwise acquire any such shares, whether such shares, securities, warrants or
other instruments are now or hereafter authorized or issued and thereafter
acquired by the Corporation.
A
description of the different classes of stock of the Corporation and the manner
of determining the designations and number of series of Preferred Stock and the
relative voting, dividend, liquidation and other rights, preferences and
limitations of each such series are as follows:
1
(a) Preferred
Stock. The Board of Directors is hereby empowered to cause the
Preferred Stock to be issued from time to time for such consideration as it may
from time to time fix, and to cause such Preferred Stock to be issued in one or
more series, with such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions providing for the
issue of such stock adopted by the Board of Directors. Each such
series of Preferred Stock shall be distinctly designated. Except in
respect of the particulars fixed by the Board of Directors for each series as
permitted hereby, all shares of Preferred Stock shall be of equal rank and shall
be identical. All shares of any one series of Preferred Stock so
designated by the Board of Directors shall be alike in every particular, except
that shares of any one series issued at different times may differ as to the
dates from which dividends thereon shall be cumulative. The voting
rights, if any, of each such series and the preferences and relative,
participating, optional and other special rights of each such series and the
qualifications, limitations and restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and the Board of
Directors of the Corporation is hereby expressly granted authority to fix, by
resolutions duly adopted prior to the issuance of any shares of a particular
series of Preferred Stock so designated by the Board of Directors, the voting
powers of such series, if any, and the designations, preferences and relative,
participating. optional and other special tights and the qualifications,
limitations and restrictions thereof, if any, for such series, including without
limitation the following:
(1) The
distinctive designation of and the number of shares of Preferred Stock which
shall constitute. such series; provided that such number may be increased
(except where otherwise provided by the Board of Directors and in any case not
above the number of authorized but then unissued shares thereof) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board of
Directors;
(2) The rate
and time at which, and the terms and conditions upon which, dividends, if any,
on Preferred Stock of such series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable on any other series
of Preferred Stock or any other class of stock of the Corporation and whether
such dividends shall be cumulative or non-cumulative;
(3) The
right, if any, of the holders of Preferred Stock of such series to convert the
same into, or exchange the same for, shares of any other
class of stock or any series of any class of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether
or not Preferred Stock of such series shall be subject to redemption, and the
redemption price or prices and the time or times at which, and the terms and
conditions upon which, Preferred Stock of such series may be
redeemed;
(5) The
rights, if any, of the holders of Preferred Stock of such series upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(6) The terms
of the sinking fund or redemption or purchase account, if any, to be provided
for the Preferred Stock of such series; and
(7) The
voting powers, if any, of the holders of such series of the Preferred Stock
which may, without limiting the generality of the foregoing, include the right,
voting as a series by itself or together with any other series of the Preferred
Stock as a class, (i) to vote more or less than one vote per share on any or all
matters voted upon by the stockholders, and (ii) to elect one or more directors
of the Corporation if there has been a default in the payment of dividends on
any one or more series of the Preferred Stock or under such other circumstances
and upon such other conditions as the Board of Directors may fix.
Except as
otherwise provided in this Restated Certificate of Incorporation, the Board of
Directors shall have authority to authorize the issuance, from time to time,
without any vote or other action by the stockholders, of any or all shares of
stock of the Corporation of any class or series at any time authorized, and any
securities convertible into or exchangeable for any such shares, and any
options, rights or warrants to purchase or acquire any such shares, in each case
to such persons and on such terms (including as a dividend or distribution on or
with respect to, or in connection with a split or combination of, the
outstanding shares of stock of the same or any other class or series) as the
Board of Directors from time to time in its discretion lawfully may
determine. Shares so issued shall be fully paid stock, and the
holders of such
stock shall not be liable to any further call or assessments
thereon.
2
(b) Series
Z Preferred Stock. This subparagraph (b) of this Article FOURTH is
intended to fully incorporate the terms of, and be a successor to, that certain
Certificate of Designation of Series Z Convertible Preferred Stock filed with
the Secretary of State of the State of Delaware on September 30,
2009. The powers, designations, preferences and relative
participating, optional and other special rights, and the qualifications,
limitations and restrictions of the Corporation’s Series Z Convertible Preferred
Stock are hereby fixed as set forth below:
RESOLVED,
that pursuant to the authority conferred on the Board of Directors of the
Corporation by its Certificate of Incorporation, a series of Preferred Stock,
par value $0.01 per share, of the Corporation is hereby established and created,
and that the designation and number of shares thereof and the voting and other
powers, preferences and relative, participating, optional or other rights of the
shares of such series and the qualifications, limitations and restrictions
thereof are as follows:
1. Designation. The
series of preferred stock established hereby shall be designated “Series Z
Convertible Preferred Stock” (and shall be referred to herein as the “Series Z Preferred
Shares”).
2. Number. The
authorized number of Series Z Preferred Shares shall be one million
(1,000,000). The number of shares of Series Z Preferred Stock
may be decreased by resolution of the Board; provided, however, that no decrease
shall reduce the number of Series Z Preferred Shares to less than the number of
shares then issued and outstanding. In the event any Series Z
Preferred Shares shall be converted pursuant to Section 7, (i) the Series Z
Preferred Shares so converted shall be retired and cancelled and shall not be
reissued and (ii) the authorized number of Series Z Preferred Shares set forth
in this Section 2 hereof shall be automatically reduced by the number of Series
Z Preferred Shares so converted and the number of shares of the Corporation’s
undesignated Preferred Stock shall be deemed increased by such
number.
3. Rank. The
Series Z Preferred Shares shall, with respect to dividend rights, rank on a
parity with the Corporation’s Common Stock, having the entitlement to the
dividends provided in Section 5. The Series Z Preferred Shares shall,
with respect to rights upon the occurrence of a Liquidation Event (as defined in
Section 6 below), rank senior to the Corporation’s Common Stock to the extent of
$.001 per Series Z Preferred Share and on a parity with the Corporation’s Common
Stock as to amounts in excess thereof as provided in Section 6. The
Series Z Preferred Shares shall rank (a) senior to any other class or series of
capital stock of the Corporation hereafter created specifically ranking junior
to the Series Z Preferred Shares as to the payment of dividends and/or rights
upon the occurrence of a Liquidation Event (collectively, “Junior Stock”); (b)
on a parity with any class or series of capital stock of the Corporation
hereafter created specifically ranking on parity with the Series Z Preferred
Shares as to the payment of dividends and/or rights upon the occurrence of a
Liquidation Event (collectively, “Parity Stock”), and
(c) junior to any class or series of capital stock of the Corporation hereafter
created specifically ranking senior to the Series Z Preferred Shares as to the
payment of dividends and/or rights upon the occurrence of a Liquidation Event
(collectively, “Senior
Stock”).
4. Voting
Rights. The holders of Series Z Preferred Shares shall vote
together with the holders of the Common Stock as a single class on all matters
submitted to the holders of Common Stock, with each holder of Series Z Preferred
Shares having one vote for each share of Common Stock into which such holder’s
Series Z Preferred Shares would be converted if converted immediately prior to
the record date for determining holders of Common Stock entitled to vote on such
matters (regardless of the number of shares of Common Stock that the Corporation
is then authorized to issue). In addition to such voting rights and
such voting rights specifically afforded to holders of a series preferred stock
to vote as part of a class or series thereof under the Delaware General
Corporation Law (the “DGCL”), without the
affirmative vote of the holders (acting together as a separate class) of at
least a majority of Series Z Preferred Shares at the time outstanding given in
person or by proxy at any annual or special meeting, or, if permitted by law, in
writing without a meeting, the Corporation shall not alter, change, amend or
repeal the voting rights or the powers, preferences or rights of the Series Z
Preferred Shares.
3
5. Dividends. The
Series Z Preferred Shares shall not be entitled to receive a dividend, except as
provided in this Section 5. In the event that the Corporation
declares or pays any dividends upon its Common Stock (whether payable in cash,
securities or other property), other than dividends payable to holders of Common
Stock solely in shares of Common Stock, the Corporation shall also declare and
pay to the holders of its Series Z Preferred Shares at the same time that it
declares and pays such dividends to the holders of its Common Stock, the
dividends which would have been declared and paid with respect to the Common
Stock issuable upon conversion of the Series Z Preferred Shares had all of the
outstanding Series Z Preferred Shares been converted immediately prior to the
record date for determining holders of Common Stock entitled to such dividend
(regardless of the number of shares of Common Stock that the Corporation is then
authorized to issue) or, if no record date is fixed, the date as of which the
record holders of Common Stock entitled to such dividends is to be
determined. As long as any Series Z Preferred Shares remain
outstanding, no dividends shall be declared on any stock ranking junior as to
the payment of dividends without the consent in writing of holders of at least a
majority of the Series Z Preferred Shares then outstanding. No
dividend shall be declared, paid or set aside on Common Stock or any class or
series of capital stock ranking on a parity with Series Z Preferred Stock with
respect to dividends unless the dividend provided herein for Series Z Preferred
Stock is declared, paid or set aside; provided, however, that
dividends on Common Stock and any other class or series of capital stock ranking
on a parity as to dividends with shares of Series Z Preferred Stock shall be
declared, set aside and paid pro rata so that the amount of dividends declared,
set aside and paid per share on Series Z Preferred Stock and per share of such
other class or series of capital stock shall in all cases bear to each other the
same ratio that their respective dividend entitlements bear to each
other.
6. Liquidation Right and
Preference. In the event of the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary (a “Liquidation Event”),
the holders of Series Z Preferred Shares shall be entitled to receive in cash,
out of the assets of the Corporation available for distribution to stockholders,
an amount per share for each outstanding Series Z Preferred Share equal to
$0.001 (the “Liquidation Value”)
after any payments shall be made or any assets shall be distributed to the
holders of Senior Stock, but before any payments shall be made or any assets
shall be distributed to the holders of any class of Common Stock of the
Corporation or any Junior Stock. After payment of the full
Liquidation Value to which holders of Series Z Preferred Shares are entitled,
the holders of the Series Z Preferred Shares shall be entitled to receive the
amount which would have been payable in any distribution of assets of the
Corporation with respect to Common Stock issuable upon conversion of the Series
Z Preferred Shares had all of the outstanding Series Z Preferred Shares been
converted immediately prior to the Liquidation Event (regardless of the number
of shares of Common Stock that the Corporation is then authorized to
issue). As long as any Series Z Preferred Shares remain outstanding,
no amounts shall be paid upon Liquidation Event to any Junior Stock without the
consent in writing of holders of at least a majority of the Series Z Preferred
Shares then outstanding. If, upon any Liquidation Event, the assets
of the Corporation are insufficient to pay the Liquidation Value to which the
holders of such Series Z Preferred Shares, the holders of Parity Stock and
holders of Common Stock to the extent provided herein are entitled,
the holders of such Series Z Preferred Shares, Parity Stock and Common Stock to
the extent provided herein shall share pro rata in any such distribution in
proportion to the full amounts to which they would otherwise be respectively
entitled. Neither the merger or consolidation of the Corporation into
or with any other corporation nor the merger or consolidation of any other
corporation into or with the Corporation nor the sale, lease, exchange or other
disposition (for cash, shares of stock, securities or other consideration) of
all or substantially all the assets of the Corporation shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, of the
Corporation.
7. Conversion.
(a) Conversion
Rate. The Series Z Preferred Shares shall be initially
convertible into Common Stock at the rate of 340.668384 shares of Common
Stock per share of Series Z Preferred Stock (as adjusted pursuant to Sections
8(a) and (b), the “Conversion Rate”),
rounded up to the nearest whole share. The shares of Common Stock issuable upon
conversion of the Series Z Preferred Shares shall be referred to herein as the
“Conversion
Shares.” The Conversion Rate shall be subject to adjustment
pursuant to Sections 8(a) and (b).
4
(b) Conversion. The
Series Z Preferred Shares may not be converted until such time after the date
hereof as the Corporation shall have effected an Authorized Share Increase (as
hereinafter defined). At such time as an Authorized Share Increase
has become effective under all applicable provisions of the DGCL and the
Corporation’s Certificate of Incorporation (the “Automatic Conversion
Date”), the Series Z Preferred Shares shall, automatically and without
any action on the part of the holders thereof, convert into a number of fully
paid and nonassessable shares of Common Stock based on the Conversion Rate then
in effect. The term “Authorized Share
Increase” shall mean that the Corporation shall have amended its
Certificate of Incorporation so as to increase the number of shares of Common
Stock (whether by increasing the total number of authorized shares of Common
Stock or combining the outstanding shares of Common Stock into a smaller number
of shares or both) such that there exists a sufficient number of shares of
Common Stock (after giving effect to any increase and/or combination of
outstanding shares of Common Stock that the Corporation may implement) to enable
all of the authorized number of Series Z Preferred Shares to be converted at the
Conversion Rate then in effect.
(c) Conversion
Mechanics. Upon the Automatic Conversion Date, the rights of
each holder of Series Z Preferred Shares (other than the right to receive shares
of Common Stock upon conversion of the Series Z Preferred Shares pursuant to the
terms hereof, as such holder) shall cease and such holder shall be treated for
all purposes as the record holder of the Conversion Shares. As
promptly as practicable on or after the Automatic Conversion Date, the
Corporation shall issue and cause to be mailed or delivered to such holder a
notice stating that the Automatic Conversion Date has occurred and that the
Series Z Preferred Shares have been deemed to have been converted in accordance
with this Section 7. Upon the occurrence of an automatic conversion of the
Series Z Preferred Shares pursuant to this Section 7, the holders of the Series
Z Preferred Shares shall surrender to the Corporation the certificates
representing the Series Z Preferred Shares for which such conversion has
occurred and the Corporation shall, upon receipt of such certificate(s), cause
its transfer agent to deliver the shares of Common Stock issuable upon such
conversion to the holder promptly following the holder’s delivery of the
applicable Series Z Preferred Share certificate(s). The Corporation
shall not be obligated to issue the shares of Common Stock issuable upon such
conversion, however, unless certificates evidencing such Series Z Preferred
Shares are either delivered to the Corporation or the holder notifies the
Corporation that such certificates have been lost, stolen or destroyed, and
executes an affidavit or agreement satisfactory to the corporation to indemnify
the Corporation from any loss incurred by it in connection
therewith.
(d) Reservation of Shares
Issuable Upon Conversion. The Corporation shall, at all times
following the Authorized Share Increase, reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the Series Z Preferred Shares, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Series Z Preferred Shares; and, if at any time
following the Authorized Share Increase, the number of authorized but unissued
shares of Common Stock shall not be sufficient to effect the conversion of all
then outstanding Series Z Preferred Shares, the Corporation will, as soon as
practicable, take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued shares of Common Stock to
such number of shares as shall be sufficient for such purpose.
8. Other Terms of Series Z
Preferred Shares.
(a) Stock Split, Stock Dividend,
Recapitalization, etc. If the Corporation, at any time while
any Series Z Preferred Shares are outstanding, shall (i) pay a stock dividend or
otherwise make a distribution or distributions payable in shares of its capital
stock (whether payable in shares of its Common Stock or of capital stock of any
class), (ii) subdivide outstanding shares of Common Stock into a larger number
of shares, (iii) combine outstanding shares of Common Stock into a smaller
number of shares or (iv) issue by reclassification of shares of Common Stock any
shares of capital stock of the Corporation, then the Conversion Rate in effect
immediately prior thereto shall be adjusted to the nearest six decimal places by
the Corporation’s Board of Directors so that, upon the happening of such event,
the holder of any Series Z Preferred Shares thereafter surrendered for
conversion shall be entitled to receive, as nearly as is practicable, the number
of shares of Common Stock or other capital stock which such holder would have
owned or have been entitled to receive immediately after the happening of any of
the events described above had such Series Z Preferred Shares been converted
immediately prior to the happening of such event or the record date therefor,
whichever is earlier. Any adjustment made pursuant to this Section
8(a) shall become effective at the time of a distribution in the case of clauses
(i) and (ii) above and the effective date of the event in the case of clauses
(iii) and (iv) above.
5
(b) No
Impairment. Unless approved in accordance with Section 4
hereof, the Corporation will not, by amendment of its Certificate of
Incorporation or this Certificate of Designation or through any reorganization,
transfer of assets, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Corporation but
will at all times in good faith assist in the carrying out of all the provisions
of this Section 8 and in the taking of all such action as may be necessary or
appropriate in order to protect against impairment of the conversion rights
described in Section 7 to of the holders of the Series Z Preferred
Shares.
(c) Notices of Record
Date. In the event that the Corporation shall propose at any
time:
| (i) | to declare any dividend or distribution upon its Common Stock, whether in cash, property, stock or other securities, whether or not a regular cash dividend and whether or not out of earnings or earned surplus (for avoidance of doubt, the foregoing phrase does not include any event specified in clauses (i), (ii) and (iii) of Section 8(a)); | |
| (ii) | to effect any reclassification or recapitalization of its Common Stock outstanding involving a change in the Common Stock; or | |
| (iii) | to merge with or into any other corporation (other than a merger in which the holders of the outstanding voting equity securities of the Corporation immediately prior to such merger will hold more than fifty percent (50%) of the voting power of the surviving entity immediately following such merger), or sell, lease or convey all or substantially all its property or business, or to liquidate, dissolve or wind up; |
then, in
connection with each such event, the Corporation shall send to the holders of
the Series Z Preferred Stock:
(1) at least
ten (10) days’ prior written notice of the date on which a record shall be taken
for such dividend or distribution referred to in clause (i) above (and
specifying the date on which the holders of Common Stock shall be entitled
thereto) or for determining rights to vote in respect of the matters referred to
in (ii) and (iii) above; and
(2) in the
case of the matters referred to in (ii) and (iii) above, at least ten (10) days’
prior written notice of the date when the same shall take place (and specifying
the date on which the holders of Common Stock shall be entitled to exchange
their Common Stock for securities or other property deliverable upon the
occurrence of such event).
Each such
written notice shall be given by first class mail, postage prepaid, addressed to
the holders of Series Z Preferred Shares at the address for each such holder as
shown on the books of the Corporation and shall be deemed given when so
mailed.
9. Preemptive
Rights. Holders of Series Z Preferred Shares shall have no
preemptive rights with respect to any future issuances of securities by the
Corporation.
10. Loss, Theft, Destruction of
Series Z Preferred Shares. Upon receipt of evidence
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
certificates representing Series Z Preferred Shares and, in the case of any such
loss, theft or destruction, upon receipt of indemnity or security reasonably
satisfactory to the Corporation, or, in the case of any such mutilation, upon
surrender and cancellation of the Series Z Preferred Shares, the Corporation
shall make, issue and deliver, in lieu of such lost, stolen, destroyed or
mutilated certificates representing Series Z Preferred Shares, new certificates
representing Series Z Preferred Shares of like tenor.
(c) Common
Stock. The Common Stock shall be subject to the prior rights of the
holders of the Preferred Stock as set forth above.
At every
meeting of the stockholders, every holder of Common Stock shall be entitled to
one vote in person or by proxy for each share of Common Stock standing in his
name on the books of the Corporation.
6
Whenever
there shall have been paid, or declared and set aside for payment, to the
holders of the outstanding shares of Preferred Stock and to the holders of
outstanding shares of any other class of stock having preference over the Common
Stock as to the payment of dividends, the full amount of dividends and of
sinking fund or purchase fund or other retirement payments, if any, to which
such holders are respectively entitled in preference to the Common Stock, then
dividends may be paid on the Common Stock and on any class or series of stock
entitled to participate therewith as to dividends, out of any assets legally
available for the payment of dividends, but only when and as declared by the
Board of Directors.
In the
event of any liquidation, dissolution or winding up of the Corporation, after
there shall have been paid to or set aside for the holders of the shares of
Preferred Stock and any other class having preference over the Common Stock in
the event of liquidation, dissolution or winding up the full preferential
amounts to which they are respectively entitled, the holders of the Common
Stock, and of any class or series of stock entitled to participate therewith, in
whole or part, as to distributions of assets, shall be entitled to receive the
remaining assets of the Corporation available for distribution, in cash or in
kind.
Each
share of Common Stock shall have the same relative rights as and be identical in
all respects with all the other shares of Common Stock.
FIFTH: The
following provisions are inserted for the management of the business and the
conduct of the affairs of the Corporation, and it is expressly provided that the
same are intended to be in furtherance and not in limitation or exclusion of the
powers conferred by statute:
(1) The
Corporation may amend, alter, change or repeal any provisions contained in this
Restated Certificate of Incorporation or in any amendment thereto, in the manner
now or hereafter prescribed by law. The Board of Directors shall have
the power, concurrent with the power of the stockholders, to make, alter, amend
and repeal the By-Laws of the Corporation. Any By-Laws made by the
directors under the powers conferred hereby may be altered, amended or repealed
by the directors or by the stockholders.
(2) Board of
Directors
(a) Number,
Term of Office, Classification - The business and affairs of the Corporation
shall be managed by the Board of Directors. The number of directors
(exclusive of directors, if any, elected by the holders of one or more series of
Preferred Stock, which may at any time be outstanding, voting separately as a
class) shall be not fewer than 3 nor more than 12, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors.
(b) Vacancy,
Removal, Nomination - Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directorship to be filled by reason of an
increase in the number of directors and any other vacancy on the Board of
Directors, however caused, may be filled by the affirmative vote of a majority
of the directors then in office, although less than a quorum, or by a sole
remaining director. Any director so elected to fill a vacancy shall
hold office until his or her successor shall have been elected and
qualified.
No person
shall be eligible for election as a director at any annual or special meeting of
stockholders unless such person was nominated by action of the Board of
Directors or a written request that his or her name be placed in nomination is
received from a stockholder of record by the Secretary of the Corporation not
less than sixty (60) days prior to the date fixed for the meeting, together with
the written consent of such person to serve as a director.
Notwithstanding
the foregoing, whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of this
Restated Certificate of Incorporation and the resolution or resolutions adopted
by the Board of Directors pursuant to Article FOURTH applicable
thereto. During the terms of office of such directors, the Board of
Directors shall consist of such directors in addition to the number of directors
determined as provided in subparagraph (a) of this paragraph 2.
7
(3) The
By-Laws may prescribe the number of directors necessary to constitute a quorum
and such number may be less than a majority of the total number of directors,
but shall not be less than one-third of the total number of
directors.
SIXTH:
(1)
In addition to any
affirmative vote required by law or this Restated Certificate of Incorporation
or the By-Laws of the Corporation, a Business Combination (as hereinafter
defined) shall be approved by the affirmative vote of not less than eighty
percent (80%) of the votes entitled to be cast by the holders of all the then
outstanding shares of Voting Stock (as hereinafter defined), voting together as
a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage or separate class vote may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The
provisions of paragraph 1 of this Article SIXTH shall not be applicable to any
particular Business Combination, and such Business Combination need be approved
by only such affirmative vote, if any, as is required by law or by any other
provision of this Restated Certificate of Incorporation or the By-Laws of the
Corporation, or any agreement with any national securities exchange, if the
Business Combination shall have been approved (whether such approval is made
prior to or subsequent to the acquisition of beneficial ownership of the Voting
Stock that caused the Interested Stockholder, as hereinafter defined, to become
an Interested Stockholder) by a majority of the Continuing Directors (as
hereinafter defined).
(3) The
following definitions and interpretations shall apply with respect to this
Article SIXTH.
(a) The term
“Business Combination” shall mean:
1. any
merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (i) any Interested Stockholder or (ii) any other company (whether
or not itself an Interested Stockholder) which is or after such merger or
consolidation would be an Affiliate or Associate (as hereinafter defined) of an
Interested Stockholder; or
2. any sale,
lease, exchange, mortgage, pledge, transfer or other disposition or security
arrangement, investment, loan, advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint venture participation or other
agreement (in one transaction or a series of transactions) with or for the
benefit of any Interested Stockholder or any Affiliate or Associate of an
Interested Stockholder involving any assets, securities or commitments of the
Corporation, any Interested Stockholder, any Subsidiary of any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder;
or
3. the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation which is voted for, approved or consented to by any Interested
Stockholder; or
4. any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or otherwise involving an Interested Stockholder) that has the effect,
directly or indirectly, of increasing the proportionate share of any class or
series of Capital Stock, or any securities convertible into Capital Stock or
into equity securities of any Subsidiary, that is beneficially owned by an
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
5. any
agreement, contract or other arrangement providing for any one or more of the
actions specified in the foregoing clauses (1) to (4).
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(b) The term
“Capital Stock” shall mean all capital stock of the Corporation authorized to be
issued from time to time under Article FOURTH of this Restated Certificate of
Incorporation, and the term “Voting Stock” shall mean all Capital Stock which by
its terms may be voted on all matters submitted to stockholders of the
Corporation generally.
(c) The term
“person” shall mean any individual, firm, company or other entity and shall
include any group comprised of any person and any other person with whom such
person or any Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of Capital Stock.
(d) The term
“Interested Stockholder” shall mean any person (other than the Corporation or
any Subsidiary and other than any profit-sharing, employee stock ownership or
other employee benefit plan for the Corporation or any Subsidiary or any trustee
of or fiduciary with respect to any such plan when acting in such capacity) who
(i) is the beneficial owner of Voting Stock representing five percent (5%) or
more of the votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock; or (ii) is an Affiliate or Associate of the Corporation
and at any time within the two-year period immediately prior to the date in
question was the beneficial owner of Voting Stock representing five percent (5%)
or more of the votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock; provided, however, that
notwithstanding the foregoing and anything contained in this Restated
Certificate of Incorporation to the contrary, Halo Companies, Inc. or its
successors in interest shall not be deemed an Interested Stockholder as defined
in this Article SIXTH.
(e) A person
shall be a “beneficial owner” of any Capital Stock
(i) which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (ii) which such person or any of its Affiliates or
Associates has, directly or indirectly, (A) the right to acquire (whether such
right is exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options or otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or (iii) which are beneficially owned,
directly or indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of Capital
Stock. For the purposes of determining whether a person is an
Interested Stockholder pursuant to subparagraph (d) of this paragraph 3, the
number of shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned by such person through application of this
subparagraph (e) of paragraph 3, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights, warrants or options,
or otherwise.
(f) The terms
“Affiliate” and “Associate” shall have the respective meanings ascribed to such
terms in Rule 12b-2 under the Securities Exchange Act of 1934 as in effect on
the date that this Article SIXTH is approved by the Board (the term “registrant”
in such Rule 12b-2 meaning in this case the Corporation).
(g) The term
“Subsidiary” means any company of which a majority of any class of equity
security is beneficially owned by the Corporation; provided, however, that for
purposes of the definition of Interested Stockholder set forth in subparagraph
(d) of this paragraph 3, the term “Subsidiary”
shall mean only a company of which a majority of each class of equity security
is beneficially owned by the Corporation.
(h) The term
“Continuing Director” means any member of the Board of Directors, while such
person is a member of the Board of Directors, who is not an Affiliate or
Associate or representative of the Interested Stockholder and was a member of
the Board of Directors prior to the time that the Interested Stockholder became
an Interested Stockholder, and any successor of a Continuing Director while such
successor is a member of the Board of Directors, who is not an Affiliate or
Associate or representative of the Interested Stockholder and is recommended or
elected to succeed the Continuing Director by a majority of Continuing
Directors.
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(4) A
majority of the Continuing Directors shall have the power and duty to determine
for the purposes of this Article SIXTH, on the basis of information known to
them after reasonable inquiry, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Capital Stock or other securities
beneficially owned by any person, and (c) whether a person is an Affiliate or
Associate of another. Any such determination made in good faith shall be binding
and conclusive on all parties.
(5) Nothing
contained in this Article SIXTH shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
(6) Notwithstanding
any other provisions of this Restated Certificate of Incorporation or the
By-Laws of the Corporation (and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, this Restated
Certificate of Incorporation or the By-laws of the Corporation), the affirmative
vote of the holders of not less than eighty percent (80%) of the votes entitled
to be cast by the holders of all the then outstanding shares of Voting Stock,
voting together as a single class, shall be required to alter, amend, repeal or
adopt any provision inconsistent with this Article SIXTH.
SEVENTH: 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 the provisions of
Section 291 of the General Corporation Law of the State of Delaware or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of the General
Corporation Law of the State of Delaware, 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 all
the stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
EIGHTH: (1) Each
person who at any time is or was an officer or director of the Corporation, and
is threatened to be or is made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person was or is an officer or director of the Corporation or serves or served
at the request of the Corporation as an officer, director, employee, member,
trustee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall be indemnified against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any such action, suit or proceeding
to the full extent permitted by the General Corporation Law of the State of
Delaware.
(2) The
indemnification provided by this Article EIGHTH shall not be deemed exclusive of
any other rights to which a person seeking indemnification may be entitled under
any statute, by-law, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his or her official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, member, employee, trustee or agent and
shall inure to the benefit of heirs, executors and administrators of such
person.
(3) The
Corporation shall have power to 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,
member, employee, trustee 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 his
or her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article EIGHTH or of the General Corporation Law of the State of
Delaware.
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NINTH:
No person
who is or was a 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 unless, and only to the extent that, such director
is liable (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 General Corporation Law of the State of Delaware or any
amendment thereto or successor provision thereto, or (iv) for any transaction
from which the director derived an improper personal benefit. If the
General Corporation Law of the State of Delaware 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 General Corporation
Law of the State of Delaware, as so amended. No amendment to, repeal
or adoption of any provision of this Restated Certificate of Incorporation
inconsistent with this article shall apply to or have any effect on the
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment, repeal, or
adoption of an inconsistent provision.
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IN
WITNESS WHEREOF, GVC Venture Corp. has caused this Restated Certificate of
Incorporation to be signed by its Chief Executive Officer on this ___ day of
__________, 2009.
GVC Venture Corp.
By: _____________________________
Brandon
Cade Thompson
Chief
Executive Officer
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