Attached files
file | filename |
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10-K - FORM 10-K - MONEYGRAM INTERNATIONAL INC | c56456e10vk.htm |
EX-23 - EX-23 - MONEYGRAM INTERNATIONAL INC | c56456exv23.htm |
EX-24 - EX-24 - MONEYGRAM INTERNATIONAL INC | c56456exv24.htm |
EX-21 - EX-21 - MONEYGRAM INTERNATIONAL INC | c56456exv21.htm |
EX-32.1 - EX-32.1 - MONEYGRAM INTERNATIONAL INC | c56456exv32w1.htm |
EX-32.2 - EX-32.2 - MONEYGRAM INTERNATIONAL INC | c56456exv32w2.htm |
EX-31.2 - EX-31.2 - MONEYGRAM INTERNATIONAL INC | c56456exv31w2.htm |
EX-31.1 - EX-31.1 - MONEYGRAM INTERNATIONAL INC | c56456exv31w1.htm |
EX-10.41 - EX-10.41 - MONEYGRAM INTERNATIONAL INC | c56456exv10w41.htm |
EX-10.30 - EX-10.30 - MONEYGRAM INTERNATIONAL INC | c56456exv10w30.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
MONEYGRAM INTERNATIONAL, INC.
1. The name of the corporation (which is hereinafter referred to as the Corporation) is
MoneyGram International, Inc.
2. The original Certificate of Incorporation was filed with the Secretary of State of the
State of Delaware on December 18, 2003.
3. A Certificate of Amendment to the Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on June 28, 2004.
4. This Amended and Restated Certificate of Incorporation has been duly proposed by
resolutions adopted and declared advisable by the Board of Directors of the Corporation, duly
adopted by written consent of the sole stockholder of the Corporation in lieu of a meeting and vote
and duly executed and acknowledged by the officers of the Corporation in accordance with the
provisions of Sections 103, 228, 242 and 245 of the General Corporation Law of the State of
Delaware and, upon filing with the Secretary of State in accordance with Section 103 of the General
Corporation Law of the State of Delaware shall thenceforth supercede the original Certificate of
Incorporation and shall, as it may thereafter be amended in accordance with its terms and
applicable law, be the Certificate of Incorporation of the Corporation.
5. The text of the Certificate of Incorporation of the Corporation is hereby amended and
restated in its entirety to read as follows:
Article I
The name of the corporation (which is hereinafter referred to as the Corporation) is:
MoneyGram International, Inc.
Article II
The address of the Corporations registered office in the State of Delaware is The Corporation
Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle. The name of the
Corporations registered agent at such address is The Corporation Trust Company.
Article III
The purpose of the Corporation shall be to engage in any lawful act or activity for which
corporations may be organized and incorporated under the General Corporation Law of the State of
Delaware (the GCL).
Article IV
(A) Authorized Stock. The total number of shares of stock that the Corporation shall have
authority to issue is two hundred and fifty-seven million (257,000,000), consisting of (i) two
hundred and fifty million (250,000,000) shares of Common Stock, par value $0.01 per share
(hereinafter referred to as Common Stock) and (ii) seven million (7,000,000) shares of Preferred
Stock, par value $0.01 per share (hereinafter referred to as Preferred Stock).
(B) Preferred Stock. Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred
Stock in series and, by filing a certificate pursuant to the GCL (hereinafter, along with any
similar designation relating to any other class of stock that may hereafter be authorized, referred
to as a Preferred Stock Designation), to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences and rights of the
shares of each such series and the qualifications, limitations and restrictions thereof. The
authority of the Board of Directors with respect to each series shall include, but not be limited
to, determination of the following:
(i) The designation of the series, which may be by distinguishing number, letter or title.
(ii) The number of shares of the series, which number the Board of Directors may thereafter
(except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not
below the number of shares thereof then outstanding).
(iii) The amounts payable on, and the preferences, if any, of shares of the series in respect
of dividends, and whether such dividends, if any, shall be cumulative or noncumulative.
(iv) Dates on which dividends, if any, shall be payable.
(v) The redemption rights and price or prices, if any, for shares of the series.
(vi) The terms and amount of any sinking fund provided for the purchase or redemption of
shares of the series.
(vii) The amounts payable on and the preferences, if any, of shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation.
(viii) Whether the shares of the series shall be convertible into or exchangeable for shares
of any other class or series, or any other security, of the Corporation or any other corporation,
and, if so, the specification of such other class or series of such other security, the conversion
or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and conditions upon which such
conversion or exchange may be made.
(ix) Restrictions on the issuance of shares of the same series or of any other class or
series.
(x) The voting rights, if any, of the holders of shares of the series.
(C) Common Stock. The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. Each shares of Common Stock shall be equal to each
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other share of Common Stock. Except as may be provided in this Certificate of Incorporation or in a
Preferred Stock Designation, the holders of shares of Common Stock shall be entitled to one vote
for each such share upon all questions presented to the stockholders.
(D) Vote. Except as may be provided in this Certificate of Incorporation or in a Preferred
Stock Designation, or as may be required by applicable law, the Common Stock shall have the
exclusive right to vote for the election of directors and for all other purposes, and holders of
Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which
they are not entitled to vote.
(E) Record Holders. The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or interest in, such share on the part of any other
person, whether or not the Corporation shall have notice thereof, except as expressly provided by
applicable law.
Article V
The Board of Directors is hereby authorized to create and issue, whether or not in connection
with the issuance and sale of any of stock or other securities or property of the Corporation,
rights entitling the holders thereof to purchase from the Corporation shares of stock or other
securities of the Corporation or any other corporation. The times at which and the terms upon which
such rights are to be issued will be determined by the Board of Directors and set forth in the
contracts or instruments that evidence such rights. The authority of the Board of Directors with
respect to such rights shall include, but not be limited to, determination of the following:
(A) The initial purchase price per share or other unit of the stock or other securities or
property to be purchased upon exercise of such rights.
(B) Provisions relating to the times at which and the circumstances under which such rights
may be exercised or sold or otherwise transferred, either together with or separately from, any
other stock or other securities of the Corporation.
(C) Provisions that adjust the number or exercise price of such rights or amount or nature of
the stock or other securities or property receivable upon exercise of such rights in the event of a
combination, split or recapitalization of any stock of the Corporation, a change in ownership of
the Corporations stock or other securities or a reorganization, merger, consolidation, sale of
assets or other occurrence relating to the Corporation or any stock of the Corporation, and
provisions restricting the ability of the Corporation to enter into any such transaction absent an
assumption by the other party or parties thereto of the obligations of the Corporation under such
rights.
(D) Provisions that deny the holder of a specified percentage of the outstanding stock or
other securities of the Corporation the right to exercise such rights and/or cause the rights held
by such holder to become void.
(E) Provisions that permit the Corporation to redeem or exchange such rights.
(F) The appointment of a rights agent with respect to such rights.
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Article VI
(A) In furtherance of, and not in limitation of, the powers conferred by applicable law, the
Board of Directors is expressly authorized and empowered:
(i) to adopt, amend or repeal the Bylaws of the Corporation; provided, however, that the
Bylaws adopted by the Board of Directors under the powers hereby conferred may be amended or
repealed by the Board of Directors or by the stockholders having voting power with respect
thereto, provided further that in the case of amendments by stockholders, the affirmative vote of
the holders of at least eighty percent (80%) of the voting power of the then outstanding Voting
Stock, voting together as a single class, shall be required to alter, amend or repeal any
provision of the Bylaws; and
(ii) from time to time to determine whether and to what extent, and at what times and
places, and under what conditions and regulations, the accounts and books of the Corporation, or
any of them, shall be open to inspection of stockholders; and, except as so determined, or as
expressly provided in this Certificate of Incorporation or in any Preferred Stock Designation, no
stockholder shall have any right to inspect any account, book or document of the Corporation
other than such rights as may be conferred by applicable law.
(B) The Corporation may in its Bylaws confer powers upon the Board of Directors in addition to
the foregoing and in addition to the powers and authorities expressly conferred upon the Board of
Directors by applicable law. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, and in addition to approval by the Board of Directors, the
affirmative vote of the holders of at least eighty percent (80%) of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall be required to amend, repeal or
adopt any provision inconsistent with paragraph (A)(i) of this Article VI. For the purposes of this
Certificate of Incorporation, Voting Stock shall mean the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors.
Article VII
Subject to the rights of the holders of any series of Preferred Stock or any other series or
class of stock as set forth in this Certificate of Incorporation to elect additional directors
under specific circumstances, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing in lieu of a meeting of such
stockholders. Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, and in addition to approval by the Board of Directors, the affirmative vote of at least
eighty percent (80%) of the voting power of the then outstanding Voting Stock, voting together as a
single class, shall be required to amend, repeal or adopt any provision inconsistent with this
Article VII.
Article VIII
(A) Subject to the rights of the holders of any series of Preferred Stock or any other series
or class of stock as set forth in the Certificate of Incorporation, to elect additional directors
under specified circumstances, the number of directors of the Corporation shall be fixed by the
Bylaws of the Corporation and may be increased or decreased from time to time in such a manner as
may be prescribed by the Bylaws.
(B) Unless and except to the extent that the Bylaws of the Corporation shall so require, the
election of directors of the Corporation need not be by written ballot.
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(C) The directors, other than those who may be elected by the holders of any series of
Preferred Stock or any other series or class of stock as set forth in the Certificate of
Incorporation, shall be divided into three classes, as nearly equal in number as possible. One
class of directors shall be initially elected for a term expiring at the annual meeting of
stockholders to be held in 2005, another class shall be initially elected for a term expiring at
the annual meeting of stockholders to be held in 2006, and another class shall be initially elected
for a term expiring at the annual meeting of stockholders to be held in 2007. Members of each class
shall hold office until their successors are elected and qualified. At each succeeding annual
meeting of the stockholders of the Corporation commencing with the 2005 annual meeting, the
successors of the class of directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their election.
(D) Subject to the rights of the holders of any series of Preferred Stock or any other series
or class of stock, as set forth in the Certificate of Incorporation, to elect additional directors
under specified circumstances, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created directorships resulting
from any increase in the authorized number of directors, may be filled, unless the Board of
Directors otherwise determines, only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or by the sole remaining director,
and not by stockholders. Directors so chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of office of the class to which they have been elected
expires and until such directors successor shall have been duly elected and qualified. No decrease
in the number of authorized directors constituting the Board of Directors shall shorten the term of
any incumbent director.
(E) Subject to the rights of the holders of any series of Preferred Stock or any other series
or class of stock as set forth in this Certificate of Incorporation, to elect additional directors
under specified circumstances, any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of the then outstanding Voting Stock, voting together as a
single class.
(F) Notwithstanding anything contained in this Certificate of Incorporation to the contrary,
and in addition to approval by the Board of Directors, the affirmative vote of the holders of at
least 80 percent of the voting power of the then outstanding Voting Stock, voting together as a
single class, shall be required to amend, repeal or adopt any provision inconsistent with this
Article VIII.
Article IX
(A) Vote Required for Certain Business Combinations.
(i) Higher Vote for Certain Business Combinations. In addition to any affirmative vote
required by applicable law or this Certificate of Incorporation, and except as otherwise expressly
provided in paragraph (B) of this Article IX:
(a) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (1) any Interested Stockholder (as hereinafter defined) or (2) any other
corporation (whether or not itself an Interested Stockholder) that is, or after such merger
or consolidation would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Stockholder, including
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all Affiliates of the Interested Stockholder, of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value (as hereinafter defined) of $10,000,000 or
more; or
(c) the issuance or transfer by the Corporation or any Subsidiary (in one transaction
or a series of transactions) of any securities of the Corporation or any Subsidiary to any
Interested Stockholder, including all Affiliates of the Interested Stockholder, in exchange
for cash, securities or other property (or a combination thereof) having an aggregate Fair
Market Value of $10,000,000 or more; or
(d) the adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of an Interested Stockholder or any Affiliates of an
Interested Stockholder; or
(e) 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 an Interested Stockholder
is a party thereto) that has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary that are directly or indirectly owned by any
Interested Stockholder or one or more Affiliates of the Interested Stockholder;
shall require the affirmative vote of the holders of at least two-thirds (66 2/3%) of the
voting power of the then outstanding Voting Stock, voting together as a single class,
including the affirmative vote of the holders of at least two-thirds (66 2/3%) of the voting
power of the then outstanding Voting Stock not owned directly or indirectly by any Interested
Stockholder or any Affiliate of any Interested Stockholder, unless the requirement of such
vote is not permitted under applicable law. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser percentage may be
permitted, by applicable law or in any agreement with any national securities exchange or
otherwise.
(ii) Definition of Business Combination. The term Business Combination as used in this
Article IX shall mean any transaction described in any one or more of clauses (a) through (e) of
paragraph (A)(i) of this Article IX.
(B) When Higher Vote is Not Required. The provisions of paragraph (A) of this Article IX shall
not be applicable to any particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by applicable law or any other provision of this
Certificate of Incorporation, if the conditions specified in either of the following paragraphs
(B)(i) or (ii) of this Article IX are met:
(i) Approval by Continuing Directors. The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined).
(ii) Price and Procedure Requirements. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value (as hereinafter defined)
as of the date of the consummation of the Business Combination of consideration other than
cash, to be received per share by holders of Common Stock in such Business Combination,
shall be at least equal to the highest of the following:
(1) (if applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers fees) paid by the Interested
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Stockholder for any shares of Common Stock acquired by it (x) within the two-year period
immediately prior to the first public announcement of the proposal of such Business
Combination (the Announcement Date), or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher;
(2) the Fair Market Value per share of Common Stock on the Announcement Date or on
the date on which the Interested Stockholder became an Interested Stockholder (the
Determination Date), whichever is higher; and
(3) (if applicable) the price per share equal to the Fair Market Value per share of
Common Stock determined pursuant to paragraph (B)(ii)(a)(2) of this Article IX, multiplied
by the ratio of (x) the highest per
share price (including any brokerage commissions, transfer taxes and soliciting dealers
fees) paid by the Interested Stockholder for any shares of Common Stock acquired by it
within the two-year period immediately prior to the Announcement Date to (y) the Fair
Market Value per share of Common Stock on the first day in such two-year period upon which
the Interested Stockholder acquired any shares of Common Stock.
(b) The aggregate amount of the cash and the Fair Market Value as of the date of the
consummation of the Business Combination of consideration other than cash to be received per
share by holders of shares of any other class, other than Common Stock or Excluded Preferred
Stock, of outstanding Voting Stock shall be at least equal to the highest of the following
(it being intended that the requirements of this paragraph (B)(ii)(b) shall be required to
be met with respect to every such class of outstanding Voting Stock whether or not the
Interested Stockholder has previously acquired any shares of a particular class of Voting
Stock):
(1) (if applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers fees) paid by the Interested Stockholder for any
shares of such class of Voting Stock acquired by it (x) within the two-year period
immediately prior to the Announcement Date, or (y) in the transaction in which it became
an Interested Stockholder, whichever is higher;
(2) (if applicable) the highest preferential amount per share to which the holders of
shares of such class of Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(3) the Fair Market Value per share of such class of Voting Stock on the Announcement
Date or on the Determination Date, whichever is higher; and
(4) (if applicable) the price per share equal to the Fair Market Value per share of
such class of Voting Stock determined pursuant to paragraph (B)(ii)(b)(3) of this Article
IX, multiplied by the ratio of (x) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers fees) paid by the Interested
Stockholder for any shares of such class of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement Date to (y) the Fair Market Value
per share of such class of Voting Stock on the first day in such two-year period upon
which the Interested Stockholder acquired any shares of such class of Voting Stock.
(c) The consideration to be received by holders of a particular class of outstanding
Voting Stock (including Common Stock and other than Excluded Preferred Stock) shall be in
cash or in the same form as the Interested Stockholder has previously paid for shares of
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such class of Voting Stock. If the Interested Stockholder has paid for shares of any class
of Voting Stock with varying forms of consideration, the form of consideration for such
class of Voting Stock shall be either cash or the form used to acquire the largest number of
shares of such class of Voting Stock previously acquired by it.
(d) After such Interested Stockholder has become an Interested Stockholder and prior to
the consummation of such Business Combination: (1) there shall have been no failure to
declare and pay at the regular date therefor any full quarterly dividends (whether or not
cumulative) on any outstanding Preferred Stock, except as approved by a majority of the
Continuing Directors; (2) there shall have been no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the Continuing Directors; (3) there shall have
been an increase in the annual rate of dividends as necessary fully to reflect any
recapitalization (including any reverse stock split), reorganization or any similar
reorganization that has the effect of reducing the number of outstanding shares of the
Common Stock, unless the failure so to increase such annual rate is approved by a majority
of the Continuing Directors; and (4) such Interested Stockholder shall not have become the
Beneficial Owner of any additional Voting Stock except as part of the transaction that
results in such Interested Stockholder becoming an Interested Stockholder.
(e) After such Interested Stockholder has become an Interested Stockholder, such
Interested Stockholder shall not have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed Business Combination and
complying with the requirements of the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to stockholders of the Corporation at least thirty (30) days
prior to the consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or subsequent
provisions).
(C) Certain Definitions. For purposes of this Article IX:
(i) Person shall mean any individual, firm, corporation or other entity.
(ii) Interested Stockholder shall mean any Person (other than the Corporation or any
Subsidiary) that:
(a) itself, or along with its Affiliates, is the Beneficial Owner, directly or
indirectly, of more than ten percent (10%) of the then outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within the two-year period
immediately prior to the date in question was itself, or along with its Affiliates, the
Beneficial Owner, directly or indirectly, of ten percent (10%) or more of the then
outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any Voting Stock that was at any
time within the two-year period immediately prior to the date in question beneficially owned
by any Interested Stockholder, if such assignment or succession shall have
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occurred in the course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(iii) Beneficial Owner shall have the meaning ascribed to such term in Rule 13d-3 of the
General Rules and Regulations of the Securities Exchange Act of 1934, as in effect on the date
hereof. In addition, a Person shall be the Beneficial Owner of any Voting Stock that such
Person or any of its Affiliates or Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after 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, provided that, in the case of rights issued pursuant to the Rights
Agreement between the Corporation and Wells Fargo Bank, N.A., as rights agent, dated as of June
30, 2004, or any successor rights agreement, once such rights are exercisable, a holder thereof
shall not be deemed to be a Beneficial Owner for purposes of this provision of the shares of
Voting Stock issuable pursuant to such rights unless and until such holder, on or after the date
that such rights become exercisable, acquires any additional such rights or shares of Voting
Stock, or (b) the right to vote pursuant to any agreement, arrangement or understanding (but
neither such Person nor any such Affiliate or Associate shall be deemed to be the Beneficial
Owner of any shares of Voting Stock solely by reason of a revocable proxy granted for a
particular meeting of stockholders, pursuant to a public solicitation of proxies for such
meeting, and with respect to which shares neither such Person nor any such Affiliate or Associate
is otherwise deemed the Beneficial Owner).
(iv) For the purpose of determining whether a Person is an Interested Stockholder pursuant
to paragraph (C)(ii) of this Article IX, the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application of paragraph (C)(iii) of this
Article IX but shall not include any other shares of Voting Stock that may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants
or options or otherwise.
(v) Affiliate and Associate shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on the date hereof.
(vi) Subsidiary shall mean any corporation of which a majority of any share of equity
security is owned, directly or indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Interested Stockholder set forth in paragraph (C)(ii) of this
Article IX, the term Subsidiary shall mean only a corporation of which a majority of each share
of equity security is owned, directly or indirectly, by the Corporation.
(vii) Continuing Director shall mean any member of the Board of Directors of the
Corporation (the Board of Directors) who is unaffiliated with 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 director who is thereafter chosen to fill any vacancy on the
Board of Directors or who is elected and who, in either event, is unaffiliated with the
Interested Stockholder and in connection with his or her initial assumption of office is
recommended for appointment or election by a majority of Continuing Directors then on the Board
of Directors.
(viii) Fair Market Value shall mean (x) in the case of stock, the highest closing sale
price during the thirty (30) day period immediately preceding the date in question of a share of
such stock on the Composite Tape for New York Stock Exchange listed stocks, or, if such stock is
not quoted on the Composite Tape, on the New York Stock Exchange, or, if such stock is not listed
on such exchange, on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such stock is not listed on
any such exchange, the highest closing bid quotation with respect to a share of such
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stock during the thirty (30) day period preceding the date in question on the NASDAQ Stock Market
or any system then in use in its stead, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined by the Board of Directors in
accordance with paragraph (D) of this Article IX; and (y) in the case of property other than cash
or stock, the fair market value of such property on the date in question as determined by the
Board of Directors in accordance with paragraph (D) of this Article IX.
(ix) In the event of any Business Combination in which the Corporation survives, the phrase
other consideration to be received as used in paragraphs (B)(ii)(a) and (b) of this Article IX
shall include the shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
(x) Excluded Preferred Stock means any series of Preferred Stock with respect to which a
majority of the Continuing Directors have approved a Preferred Stock Designation creating such
series that expressly provides that the provisions of this Article IX shall not apply.
(D) The Continuing Directors of the Corporation shall have the power and duty to determine for
the purposes of this Article IX, on the basis of information known to them after reasonable
inquiry, all facts necessary to determine compliance with this Article IX, including, without
limitation (i) whether a Person is an Interested Stockholder, (ii) the number of shares of Voting
Stock beneficially owned by any Person, (iii) whether a Person is an Affiliate or Associate of
another, (iv) whether the applicable conditions set forth in paragraph (B)(ii) of this Article IX
have been met with respect to any Business Combination, (v) the Fair Market Value of stock or other
property in accordance with paragraph (C)(viii) of this Article IX, and (vi) whether the assets
that are the subject of any Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in any Business Combination
has, an aggregate Fair Market Value of $10,000,000 or more.
(E) No Effect on Fiduciary Obligations of Interested Stockholders. Nothing contained in this
Article IX shall be construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by applicable law.
(F) Amendment, Repeal, etc. Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be permitted by applicable law, this Certificate of Incorporation or the Bylaws of
the Corporation), but in addition to any affirmative vote of the holders of any particular class of
the Voting Stock required by applicable law or this Certificate of Incorporation, the affirmative
vote of the holders of two-thirds (66 2/3%) of the voting power of the shares of the then
outstanding Voting Stock voting together as a single class, including the affirmative vote of the
holders of two-thirds (66 2/3%) of the voting power of the then outstanding Voting Stock not owned
directly or indirectly by any Interested Stockholder or any Affiliate of any Interested
Stockholder, shall be required to amend or repeal, or adopt any provisions inconsistent with, this
Article IX of this Certificate of Incorporation.
Article X
Each person who is or was or had agreed to become a director or officer of the Corporation, or
each such person who is or was serving or who had agreed to serve at the request of the Board of
Directors or an officer of the Corporation as a director, officer or trustee of another
corporation, partnership, joint venture, trust or other enterprise (including the heirs, executor,
administrators or estate of such person), shall be indemnified by the Corporation, in accordance
with the Bylaws of the Corporation, to the fullest extent permitted from time to time by the GCL as
the same exists or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader indemnification rights than
said law
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permitted the Corporation to provide prior to such amendment) or any other applicable laws as
presently or hereafter in effect. The Corporation may, by action of the Board of Directors or
through the adoption of Bylaws, provide indemnification to employees and agents of the Corporation,
and to persons serving as employees or agents of another corporation, partnership, joint venture,
trust or other enterprise, at the request of the Corporation, with the same scope and effect as the
foregoing indemnification of directors and officers. The Corporation shall be required to indemnify
any person seeking indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the Board of Directors or
is a proceeding to enforce such persons claim to indemnification pursuant to the rights granted by
this Certificate of Incorporation or otherwise by the Corporation. The right to indemnification
conferred in this Article X shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of its final
disposition, such advances to be paid by the Corporation within twenty (20) days after the receipt
by the Corporation of a statement or statements from the claimant requesting such advance or
advances from time to time; provided, however, that if the General Corporation Law of the State of
Delaware requires, the payment of such expenses incurred by such a person in his or her capacity as
such a director or officer of the Corporation in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be determined that
such director or officer is not entitled to be indemnified under this Article X or otherwise.
Without limiting the generality or the effect of the foregoing, the Corporation may enter into one
or more agreements with any person that provide for indemnification greater or different than that
provided in this Article X. Any amendment or repeal of this Article X shall not adversely affect
any right or protection existing hereunder in respect of any act or omission occurring prior to
such amendment or repeal.
Article XI
To the fullest extent permitted by applicable law, 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. Any amendment or repeal of this Article XI shall not adversely affect
any right or protection of a director of the Corporation existing hereunder in respect of any act
or omission occurring prior to such amendment or repeal.
Article XII
Except as may be expressly provided in this Certificate of Incorporation, the Corporation
reserves the right at any time and from time to time to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation or a Preferred Stock Designation, and any
other provisions authorized by the laws of the State of Delaware at the time in force may be added
or inserted, in the manner now or hereafter prescribed herein or by applicable law, and all rights,
preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other
persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article XII; provided, however,
that any amendment or repeal of Article X or Article XI of this Certificate of Incorporation shall
not adversely affect any right or protection existing hereunder in respect of any act or omission
occurring prior to such amendment or repeal; and provided further that no Preferred Stock
Designation shall be amended after the issuance of any shares of the series of Preferred Stock
created thereby, except in accordance with the terms of such Preferred Stock Designation and the
requirements of applicable law; and provided further that paragraph (C) of Article IV shall not be
amended except in accordance with the terms thereof and the requirements of applicable law.
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IN WITNESS WHEREOF, said MoneyGram International, Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by its Chief Executive Officer and has caused its
corporate seal to be affixed, this 28th day of June, 2004.
MONEYGRAM INTERNATIONAL, INC. |
||||
By: | /s/ Philip W. Milne | |||
Name: | Philip W. Milne | |||
Title: | Chief Executive Officer |
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MONEYGRAM INTERNATIONAL, INC.
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MONEYGRAM INTERNATIONAL, INC.
It is hereby certified that:
1. The name of the corporation (which is hereinafter referred to as the Corporation) is
MoneyGram International, Inc.
2. Clause (A) of Article IV of the Amended and Restated Certificate of Incorporation of the
Corporation is hereby amended and restated in its entirety, as follows:
Article IV
(A) Authorized Stock. The total number of shares of stock that the Corporation shall have
authority to issue is one billion three hundred and seven million (1,307,000,000), consisting of
(i) one billion three hundred million (1,300,000,000) shares of Common Stock, par value $0.01 per
share (hereinafter referred to as Common Stock) and (ii) seven million (7,000,000) shares of
Preferred Stock, par value $0.01 per share (hereinafter referred to as Preferred Stock).
3. Clauses (C) and (D) of Article VIII of the Amended and Restated Certificate of
Incorporation of the Corporation are hereby amended and restated in their entirety as follows:
Article VIII
(C) The directors shall be elected annually at each annual meeting of stockholders of the
Corporation to hold office for a term expiring at the next annual meeting of stockholders, with
each director to hold office until his or her successor shall have been duly elected and qualified.
Directors elected at the 2009 annual meeting of stockholders of the Corporation shall commence
their term of office upon the effectiveness of this Amendment to the Amended and Restated
Certificate of Incorporation under the General Corporation Law of the State of Delaware (the
Effective Time) for a term expiring at the next annual meeting of stockholders, with each such
director to hold office until his or her successor shall have been duly elected and qualified.
(D) Subject to the rights of the holders of our Series B Participating Convertible Preferred
Stock and Series B-1 Participating Convertible Preferred Stock (the Series B Stock) or any other
series or class of stock, as set forth in this Amended and Restated Certificate of Incorporation,
to elect additional directors under specified circumstances, vacancies resulting from death,
resignation, retirement, disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors, may be filled,
unless the Board of Directors otherwise determines, only by the affirmative vote of a majority of
the remaining directors, though less than a quorum of the Board of Directors, or by the sole
remaining director, and not by stockholders. Directors so chosen shall hold office for a term
expiring at the next annual meeting of stockholders and until such directors successor shall have
been duly elected and qualified. No decrease in the number of authorized directors constituting
the Board of Directors shall shorten the term of any incumbent director.
4. Article XIII is hereby added to the Amended and Restated Certificate of Incorporation of
the Corporation as follows:
Article XIII
(A) At any time the investors that are party to the Purchase Agreement (as defined below) or
their respective affiliates (collectively, the Investors) have the right pursuant to Section
4.1(b) of the Purchase Agreement to appoint individuals to be nominated for election to the Board
of Directors (Board Representatives) to serve as directors of the Corporation, affiliates of
Goldman, Sachs & Co. (Goldman Sachs) (or its permitted successors or assigns) shall have the
right to designate one (1) Board Representative (the GS Board Representative), which such Board
Representative, if elected as a director, shall have one (1) vote, and affiliates of Thomas H. Lee
Partners, L.P. (THL) (or its permitted successors or assigns) shall have the right to designate
two (2) to four (4) Board Representatives (the THL Board Representatives), which THL Board
Representatives, if elected as directors, together shall be authorized to vote (with each THL Board
Representative having equal votes) on all matters occasioning action by the Board of Directors a
total number of votes equal to (x) the number of directors that the Investors would be entitled to
designate pursuant to Section 4.1(b) of the Purchase Agreement in order to have Proportional
Representation (as defined below) on the Board of Directors in the absence of this Article XIII,
minus (y) the one (1) vote of the GS Board Representative. Each director other than the THL Board
Representatives shall have one (1) vote. For the purposes of this Amended and Restated Certificate
of Incorporation, Proportional Representation shall mean the number of Board Representatives
(rounded to the nearest whole number) that the Investors would need to appoint (in the absence of
this Article XIII) in order for the number of Board Representatives appointed by the Investors as
compared to the number of directors constituting the entire Board of Directors to be proportionate
to the Investors common stock ownership, calculated on a fully-converted basis (assuming all
shares of Series B Stock are converted into common stock). For the purposes of this Amended and
Restated Certificate of Incorporation, the Purchase Agreement shall mean that certain Amended and
Restated Purchase Agreement, dated as of March 17, 2008, between the Corporation and the purchasers
named therein, including all schedules and exhibits thereto, as the same may be amended from time
to time.
(B) At any time the right of the Investors to appoint Board Representatives pursuant to this
Article XIII is in effect, all references in this Amended and Restated Certificate of
Incorporation, the Bylaws of the Corporation and any other charter document of the Corporation,
each as may be amended from time to time, to a majority of the directors, a majority of the
remaining directors, a majority of the Whole Board, a majority of the total number of directors
that the Corporation would have if there were no vacancies and similar phrases shall give effect
to the proportional voting provisions of this Article XIII such that the references to a majority
shall mean a majority of the votes of the directors.
5. The amendments of the Amended and Restated Certificate of Incorporation herein certified
have been duly adopted in accordance with the provisions of Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, said MoneyGram International, Inc. has caused this Certificate of
Amendment of Amended and Restated Certificate of Incorporation to be signed by its Executive Vice
President, General Counsel and Secretary this 12th day of May, 2009.
MONEYGRAM INTERNATIONAL, INC. |
||||
By | /s/ Teresa H. Johnson | |||
Teresa H. Johnson | ||||
Executive Vice President, General Counsel and Secretary |
||||
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