Attached files
| file | filename |
|---|---|
| S-1/A - Crumbs Bake Shop, Inc. | v169534_s1a.htm |
| EX-3.1 - Crumbs Bake Shop, Inc. | v169534_ex3-1.htm |
| EX-4.4 - Crumbs Bake Shop, Inc. | v169534_ex4-4.htm |
| EX-10.1 - Crumbs Bake Shop, Inc. | v169534_ex10-1.htm |
| EX-10.2 - Crumbs Bake Shop, Inc. | v169534_ex10-2.htm |
| EX-10.9 - Crumbs Bake Shop, Inc. | v169534_ex10-9.htm |
| EX-10.3 - Crumbs Bake Shop, Inc. | v169534_ex10-3.htm |
| EX-10.8 - Crumbs Bake Shop, Inc. | v169534_ex10-8.htm |
| EX-10.10 - Crumbs Bake Shop, Inc. | v169534_ex10-10.htm |
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION OF
57TH
STREET GENERAL ACQUISITION CORP.
57th
Street General Acquisition Corp., a Delaware corporation (the “Corporation”),
does hereby certify as follows:
1. The
name of the Corporation is 57th Street General Acquisition Corp. The
date of filing of its original Certificate of Incorporation with the Secretary
of State was October 29, 2009 under the name of 57th Street General Acquisition
Corp.
2. This
Amended and Restated Certificate of Incorporation (“Amended and Restated
Certificate of Incorporation”) of 57th Street General Acquisition Corp. has been
duly adopted in accordance with the provisions of Sections 228, 242 and 245 of
the Delaware General Corporation Law by the directors and stockholders of the
Corporation.
3. This
Amended and Restated Certificate of Incorporation shall be effective on the date
of filing with the Secretary of State of the State of Delaware.
4. The
text of the Certificate of Incorporation of the Corporation is hereby amended
and restated to read in its entirety as follows:
FIRST:
The name of the corporation is 57th Street General Acquisition Corp.
(hereinafter sometimes referred to as the “Corporation”).
SECOND:
The address of the Corporation’s registered office in the State of Delaware is
National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover,
Delaware 19904, County of Kent. The name of the Corporation’s
registered agent at such address is National Registered Agents,
Inc.
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
Delaware 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 Transaction (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 of Directors”) 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 prior to
the consummation of a Business Transaction.
FOURTH:
The total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is 101,000,000, of which 100,000,000 shares shall
be Common Stock, par value $0.0001 per share, and 1,000,000 shares shall be
Preferred Stock, par value $0.0001 per share.
A.
Preferred Stock. The Board of Directors 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 of Directors
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 name and mailing address of the sole incorporator of the Corporation are as
follows:
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Name:
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Asim
Grabowski-Shaikh
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Address:
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c/o
Ellenoff Grossman & Schole LLP
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150
East 42nd
Street
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New
York, NY 10017
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SIXTH:
The following provisions (A) through (E) shall apply during the period
commencing upon the filing of this Amended and Restated Certificate of
Incorporation and terminating upon the consummation of any “Business
Transaction” and may not be amended prior to the consummation of any Business
Transaction. A “Business Transaction” shall mean the initial
acquisition by the Corporation, whether through a merger, capital stock
exchange, asset acquisition, stock purchase, reorganization, exchangeable share
transaction or other similar business transaction, of one or more operating
businesses or assets.
A. The
Corporation will proceed with the consummation of a Business Transaction only if
(i) the Corporation’s board of directors approves such Business Transaction and
authorizes the mailing of a notice (“Notice”) setting forth substantially the
same information that would be contained in a Schedule 14C information statement
prepared in accordance with the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), in connection with the proposed Business Transaction and (ii)
holders of no more than 88% of the shares of Common Stock (“IPO Shares”) issued
in the Corporation’s initial public offering (“IPO”) of securities elect to put
their shares back to the Corporation for cash. Following the
Corporation’s mailing of the Notice, stockholders holding IPO Shares will have
the right, up until the date provided in the Notice (which date shall not be
less than 15 days from the mailing thereof), to elect to put such holder’s IPO
Shares back to the Corporation for cash. If IPO Shares are put back
to the Corporation as set forth in the Notice, the Corporation shall, promptly
after consummation of the Business Transaction, effectuate such put right at a
per share put price initially equal to $9.75 per share, plus interest earned on
the Trust Account (net of taxes payable on the Trust Account). The Corporation
shall not grant any request for the exercise of put rights to it for cash in the
event such Business Transaction is not consummated. “Trust Account”
shall mean the trust account established by the Corporation at the consummation
of the IPO and into which $48,750,000, or $56,025,000 if the underwriters’
over-allotment option is exercised in full, of the net proceeds of the IPO are
deposited. Notwithstanding the foregoing, holders of IPO Shares,
together with any of their affiliates or any other person with whom such holder
is acting in concert or as a ‘‘group’’ (as defined under Section 13 of the
Exchange Act), are restricted from seeking put rights with respect to more than
an aggregate of 10% of the shares sold in the IPO.
B. In the
event the Corporation does not consummate a Business Transaction within 15
months from the consummation of the IPO (the “Termination Date”), the directors
and officers of the Corporation shall (i) cease all operations of the
Corporation except for the purposes of winding up, (ii) redeem 100% of the IPO
Shares for a per share pro rata portion of the Trust Account, including a
portion of the interest earned thereon, but net of any taxes (which redemption
will completely extinguish such holders’ rights as stockholders, including the
right to receive further liquidation distributions, if any) and (iii) as
promptly as reasonably possible following such redemption, following
approval of the Corporation’s then stockholders and subject to the requirements
of the GCL, including the adoption of a resolution by the Board pursuant to
Section 275(a) of the GCL, finding the dissolution of the Corporation advisable
and providing such notices as are required by said Section 275(a) of the
GCL, dissolve and liquidate the balance of the Corporation’s net assets to
its remaining stockholders, as part of the Corporation’s plan of dissolution and
liquidation.
C. In
the event the Corporation is required to seek stockholder approval to effect its
Business Transaction, the Corporation shall distribute the Notice and proceed
with the Business Transaction only if (i) a majority of the Corporation’s
outstanding shares of common stock voted are voted in favor of the Business
Transaction and (ii) holders of no more than 88% of the IPO Shares elect to put
their shares back to the Corporation for cash. In connection with
such stockholder vote, holders of IPO Shares exercising their put rights and
voting (1) in favor of the Business Transaction will be entitled to receive a
pro-rata portion of the Trust Account including interest and (2) against the
Business Transaction will be entitled to receive a pro-rata portion of the Trust
Account excluding interest, in each case net of taxes.
D. 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
pursuant to the terms of the Investment Trust Agreement governing the Trust
Account or in the event he exercises his put rights, the Corporation redeems the
IPO Shares (in accordance with Section B above) or the Corporation is required
to seek a stockholder vote on the Business Transaction, as set forth in Article
6A – C, inclusive, of this Amended and Restated Certificate of
Incorporation. In no other circumstances shall a holder of IPO Shares
have any right or interest of any kind in or to the Trust Account.
E. The
Board of Directors shall be divided into two classes: Class A and
Class B. The number of directors in each class shall be as nearly equal as
possible. Prior to the IPO, there shall be elected three Class A directors
for a term expiring at the Corporation’s first Annual Meeting of Stockholders
and three Class B directors for a term expiring at the Corporation’s second
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 second 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 of Directors, 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 by-laws of the Corporation), 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.
F. Prior
to the consummation of the Corporation’s Business Transaction, the Corporation
shall not issue any additional stock that participates in the proceeds of the
Trust Account, or that votes as a class with the IPO Shares, if the Corporation
is required to seek stockholder approval of a Business Transaction.
G. In
the event the Corporation enters into a Business Transaction with a
target business that is affiliated with 57th Street
GAC Holdings, LLC, or the directors or officers of the Corporation, the
Corporation will obtain an opinion from an independent investment banking firm
that is a member of Financial Industry Regulatory Authority that such Business
Transaction is fair to the Corporation’s stockholders from a financial point of
view.
SEVENTH:
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 of Directors 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.
C. 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.
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.
EIGHTH:
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such director 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.
NINTH:
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.
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be duly executed on its behalf by an authorized
officer on this _____th day of ___________, 2010.
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57TH
STREET GENERAL ACQUISITION CORP.
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By:
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Name:
Mark D. Klein
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Title:
Chief Executive Officer
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