Attached files
| file | filename |
|---|---|
| 8-K - IMH Financial Corp | v188707_8-k.htm |
| EX-3.2 - IMH Financial Corp | v188707_ex3-2.htm |
| EX-4.1 - IMH Financial Corp | v188707_ex4-1.htm |
| EX-99.1 - IMH Financial Corp | v188707_ex99-1.htm |
CERTIFICATE
OF INCORPORATION
OF
IMH
FINANCIAL CORPORATION
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1.
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Name. The
name of the corporation is IMH Financial Corporation (the “Corporation”).
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2.
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Registered
Office; Registered Agent. The address of the
Corporation’s registered office in the State of Delaware is 2711
Centerville Road, Suite 400, in the City of Wilmington, County of New
Castle, Delaware. The name of the registered agent of the
Corporation at such address is Corporation Service
Company.
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3.
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Incorporator. The
incorporator of the Corporation is Shane C. Albers. The address
of the incorporator is 4900 N. Scottsdale Road, Suite 5000, Scottsdale,
Arizona 85251.
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4.
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Purpose. The
purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
the State of Delaware (the “DGCL”).
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5.
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Capital
Stock.
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5.1
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The
Corporation has the authority to issue an aggregate of 300,000,000
shares. Of the authorized shares of capital stock of the
Corporation: (i) 200,000,000 shares shall be designated as
Voting Common Stock, par value $0.01 per share (the “Voting
Common Stock”), and (ii) 100,000,000 shares shall be designated as
Preferred Stock, par value $0.01 per share (the “Preferred
Stock”). The shares of Voting Common Stock shall be
divided into the following classes: (A) 150,208,500 shares
shall be designated as Common Stock, par value $0.01 per share (the “Common
Stock”), (B) 16,994,144 shares shall be designated as Class B
Common Stock, par value $0.01 per share (the “Class B
Common Stock”), (C) 15,803,212 shares shall be designated as Class
C Common Stock, par value $0.01 per share (the “Class C
Common Stock”), and (D) 16,994,144 shares shall be designated as
Class D Common Stock, par value $0.01 per share (the “Class D
Common Stock” and together with the Common Stock, the Class B
Common Stock and the Class C Common Stock, the “Common
Securities”). The shares of Class B Common Stock shall
be divided into the following series: 4,023,400 shares of Class
B-1 Common Stock (the “Class B-1
Common Stock”), 4,023,400 shares of Class B-2 Common Stock (the
“Class B-2
Common Stock”), 8,165,700 shares of Class B-3 Common Stock (the
“Class B-3
Common Stock”), and 781,644 shares of Class B-4 Common Stock (the
“Class B-4
Common Stock”).
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5.2
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The
number of authorized shares of any class or classes of 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
stock of the corporation entitled to vote, voting together as a single
class, irrespective of the provisions of Section 242(b)(2) of the DGCL or
any corresponding provision hereinafter
enacted.
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5.3
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To
the full extent permitted by the DGCL, as the same exists or may hereafter
be amended, the Board of Directors is authorized by resolution to divide
and issue the shares of Preferred Stock in series and to fix the voting
powers and any designations, preferences, and relative, participating,
optional or other special rights of any such series of Preferred Stock and
any qualifications, limitations or restrictions thereof as are stated and
expressed in the resolution or resolutions providing for the issue of such
stock adopted by the Board of
Directors.
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5.4
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The
following is a description of the relative powers, preferences and
participating, optional or other special rights, and the qualifications,
limitations or restrictions of the Common
Securities.
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(a)
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General. Except
as otherwise set forth in this Article 4, the relative powers, preferences
and participating, optional or other special rights, and the
qualifications, limitations or restrictions of each class and series of
Common Securities are identical in all
respects.
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(b)
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Voting. At
every meeting of the stockholders of the Corporation in connection with
the election of directors and all other matters submitted to a vote of
stockholders, every holder of Common Securities is entitled to one vote in
person or by proxy for each share of Common Securities registered in the
name of the holder on the transfer books of the
Corporation. Except as otherwise required by law, the holders
of Common Securities shall vote together as a single class, subject to any
right that may be conferred upon holders of Preferred Stock to vote
together with holders of Common Securities on matters submitted to a vote
of stockholders of the Corporation.
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(c)
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Certain
Definitions. For purposes of this Certificate of
Incorporation:
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“Affiliate”
of any Person means any other Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control
with, such first Person.
“Aggregate IPO
Proceeds” means the aggregate amount received by the Corporation as
consideration for the sale of the Corporation’s Common Stock in the IPO, net of
any underwriting discounts or commissions.
“Approved
Financing” means (i) any transaction involving (A) the issuance of Voting
Common Stock or any other equity security of the Corporation (including, without
limitation, an IPO, any follow-on offering, or any private offering, and
regardless of the relative seniority, subordination, preference, or other rights
or terms of such equity security) or (B) the incurrence by the Corporation of
indebtedness having a maturity of no less than one (1) year, or (ii) any series
or combination of such transactions (whether related or otherwise), the
aggregate net proceeds to the Corporation of which transaction or transactions
are in excess of fifty million dollars ($50,000,000).
2
“Board of
Directors” means the Board of Directors of the Corporation.
“Business
Day” means any day that is not a Saturday, Sunday, or other day on which
banking institutions are authorized or required to close in New
York.
“Change in
Control” means the occurrence of any of the foregoing: (A) a
consolidation or merger of the Corporation with or into any other corporation or
entity in which the holders of record of the Corporation’s outstanding shares of
capital stock immediately before such consolidation or merger do not,
immediately after such consolidation or merger, hold (by virtue of securities
issued as consideration in such transaction or otherwise) a majority of the
voting power of the surviving corporation or entity of such consolidation or
merger; or (B) any transaction, or series of related transactions in which 50%
or more of the Corporation’s voting power is transferred to persons other than
the stockholders of the Corporation and their respective Affiliates immediately
prior to such transaction or series of transactions; or (C) a sale of all or
substantially all of the assets of the Corporation, except to one or more
Affiliates of the Corporation.
“IPO” means
the initial public offering under the Securities Act of 1933, as amended, of the
Corporation’s Common Stock.
“IPO Date”
means the date, if any, on which the IPO occurs.
“Market
Capitalization” means, as of any date of determination, the product of
(i) the total number of shares of Common Securities outstanding on such date
multiplied by (ii) the
closing per-share trading price of the Common Stock, as reported in the New York
City edition of The Wall
Street Journal for such date (or, if such date is not a trading day, for
the most recent trading day prior to such date), or, if not reported therein,
any other authoritative source to be selected by the Corporation.
“Notice
Date” means the date, if any, on which the Corporation sends notice to
the stockholders of the Corporation stating that the Board of Directors has
determined not to pursue an IPO.
“Permitted
Transfer” means, upon 10 days prior notice to the Corporation, (i) a
transfer to the Corporation, (ii) any gratuitous Transfer to any spouse or
member of a holder of Class B Common Stock’s, Class C Common Stock’s or Class D
Common Stock’s immediate family (including adopted children) or grandchildren,
or to a custodian, trustee (including a trustee of a voting trust), executor or
other fiduciary for the account of such holder’s spouse or members of such
holder’s immediate family or grandchildren, or to a trust for himself or
herself, or a charitable remainder trust, (iii) a Transfer effected pursuant to
a holder of Class B Common Stock’s, Class C Common Stock’s or Class D Common
Stock’s will or the laws of intestate succession, or (iv) a Transfer by a holder
of Class B Common Stock, Class C Common Stock or Class D Common Stock to such
holder’s partners, members or other equity owners, or retired partners, retired
members or other equity owners, or to the estate of any of its partners, members
or other equity owners or retired partners, retired members or other equity
owners.
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“Person”
means an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including any governmental
entity.
“Redemption
Price” means the price per share of Common Stock received by the
Corporation in the IPO, net of any underwriting discounts and
commissions.
“Transfer”
means, with respect to any capital stock of the Corporation, to directly or
indirectly, sell, offer, contract or grant any option to sell (including without
limitation any short sale), pledge, transfer, establish an open “put equivalent
position” within the meaning of Rule 16a-1(h) under the Securities Exchange Act
of 1934, as amended, or otherwise dispose of any such capital stock, options or
warrants to acquire such capital stock, or securities exchangeable or
exercisable for or convertible into such capital stock, or to publicly announce
an intention to do any of the foregoing, provided, however, that the conversion
of the Class B Common Stock, Class C Common Stock or Class D Common Stock
pursuant to Section
4.4(d)(ii) or (iii) hereof shall not
constitute a Transfer. “Transferred”,
“Transferee”
and “Transferor”
shall have correlative meanings.
“Trigger
Date” means the earlier to occur of (i) the IPO Date or (ii) the date
that is ninety (90) days following the Notice Date.
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(d)
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Rights of Holders of Class B
Common Stock, Class C Common Stock and Class D Common
Stock.
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(i)
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Transfer
Restrictions. Except for (A) Permitted Transfers that
comply with the notice requirements set forth below, (B) Transfers to the
Corporation, (C) the conversion of shares of Class B Common Stock, Class C
Common Stock or Class D Common Stock pursuant to Sections 4.4(d)(ii) and
4.4(d)(iii)
hereof, (D) redemption of Class C Common Stock pursuant to Section 4.5(i)
hereof, or (E) Transfers approved by the Board of Directors, shares of
Class B-1 Common Stock may not be Transferred during the period commencing
on the date hereof and continuing through the six-month anniversary of the
Trigger Date, shares of Class B-2 Common Stock may not be Transferred
during the period commencing on the date hereof and continuing through the
nine-month anniversary of the Trigger Date, shares of Class B-3 Common
Stock and Class B-4 Common Stock may not be Transferred during the period
commencing on the date hereof and continuing through the twelve-month
anniversary of the Trigger Date, and shares of Class C Common Stock and
Class D Common Stock may not be Transferred at any time. Except as
expressly provided in this Section 4.4(d), any
purported Transfer of shares of Class B Common Stock, Class C Common Stock
or Class D Common Stock shall be void. Shares of Class B Common Stock,
Class C Common Stock or Class D Common Stock may be Transferred pursuant
to a Permitted Transfer at any time, provided, however, that the
Transferor provides at least ten (10) Business Days prior written notice
to the Corporation, and any such Transferee shall take such shares subject
to all of the provisions and restrictions set forth in this Section
4.4(d). In addition to any other restrictions on
Transfer to which the Class B-4 Common Stock is subject (including,
without limitation, the restrictions set forth in the preceding sentences
of this Section
4.4(d)(i)), no holder shall be permitted to Transfer its shares of
the Class B-4 Common Stock at any time prior to the earliest to occur of
(I) the four-year anniversary of the date hereof, (II) following the
five-month anniversary of the first day of trading of the Common Stock on
a national securities exchange, either the Market Capitalization or the
book value of the Corporation has exceeded an amount equal to (x)
$730,383,530.78 plus (y) the aggregate
amount of any net proceeds to the Corporation from the IPO and any other
offerings of the securities of the Corporation prior to the time of
determination less (z) the amount of
any dividends or distributions paid on the securities of the Corporation
prior to the time of determination, (III) the conversion of the Class B
Common Stock pursuant to Section 4.4(d)(iii)(B)
hereof, or (IV) if such holder has entered into an employment agreement
approved by the compensation committee of the Corporation, the termination
of such holder as an officer of the Corporation “without cause” (as such
term is defined in the employment agreement by and between the Corporation
and such holder).
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(ii)
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Optional Conversion of Class B
Common Stock and Class D Common Stock. The shares of
Class B Common Stock and Class D Common Stock shall be subject to
conversion at the option of the holder thereof (or, if applicable,
automatically), as follows:
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(A)
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on
and after the six-month anniversary of the Trigger Date, each share of
Class B-1 Common Stock shall be convertible into one share of Common
Stock;
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(B)
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on
and after the nine-month anniversary of the Trigger Date, each share of
Class B-2 Common Stock shall be convertible into one share of Common
Stock;
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(C)
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if,
during the period beginning on the five-month anniversary of the IPO Date,
the closing per-share trading price of the Common Stock (as reported in
the New York City edition of The Wall Street Journal
for each such trading day, or, if not reported therein, any other
authoritative source to be selected by the Corporation) exceeds 125% of
the per-share price at which the Common Stock was initially sold to the
public in the IPO (before underwriting discounts and the like, and as
adjusted for stock splits, stock dividends and the like) for twenty (20)
consecutive trading days, each share of Class B-1 Common Stock, each share
of Class B-2 Common Stock, and each share of Class B-3 Common Stock shall
thereafter be convertible into one share of Common
Stock;
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(D)
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on
and after the twelve-month anniversary of the Trigger Date, each share of
Class D Common Stock shall be convertible into one share of Common Stock;
and
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(E)
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on
and after the four-year anniversary of the Trigger Date, each share of
Class B-4 Common Stock shall be convertible into one share of Common
Stock.
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In order
to effect any conversion pursuant to this Section 4.4(d)(ii), the
applicable holder shall give written notice to the transfer agent for the
Corporation’s capital stock and to the custodian appointed by the Corporation to
hold the Class B Common Stock, Class C Common Stock and Class D Common Stock of
its desire to convert shares (a “Conversion
Notice”) which Conversion Notice shall set forth the number of shares and
applicable series of Class B Common Stock or Class D Common Stock it desires to
convert. In addition, in connection with a conversion pursuant to
clauses (A), (B), (C), or (E) above, the applicable holder shall include in such
notice a representation that such holder has complied with all of the transfer
restrictions set forth in Section 4.4(d)(i) hereof (a
“Transfer
Representation”), and no such conversion shall be effected in the absence
of such a Transfer Representation. In connection with any conversion
pursuant to clause (D) above, the Conversion Notice shall contain an affirmative
statement that (I) such holder has complied with all of the transfer
restrictions set forth in Section 4.4(d)(i) hereof for
the ninety-day period prior to the date of such Conversion Notice and is not
currently in violation of any such restriction, and (II) if such holder was a
holder of Class B Common Stock on the Special Dividend Record Date (and the
Special Dividend was declared and paid), such holder will return to the
Corporation the full amount of the Special Dividend that such holder received (a
“Transfer
Cure Representation”). With respect to any conversion pursuant
to clauses (A), (B) (C), or (E) above, in the event that a holder delivers a
Conversion Notice that contains a statement that such holder has not complied
with the transfer restrictions set forth in Section 4.4(d)(i) hereof (a
“Transfer
Violation Representation”), then, notwithstanding the provisions of Section 4.4(d)(ii) hereof,
each share of Class B-1 Common Stock, each share of Class B-2 Common Stock, each
share of Class B-3 Common Stock, and each share of Class C Common Stock held by
such holder shall be automatically converted into one share of Class D Common
Stock instead of one share of Common Stock. With respect to any
conversion pursuant to clause (D) above, in the event that a holder delivers a
Conversion Notice that does not contain the Transfer Cure Representation, then
the custodian holding such holder’s shares of Class D Common Stock shall not
release such shares of Class D Common Stock for a period of 90 days after the
date such Conversion Notice is deemed delivered, and will thereafter release
such shares of Class D Common Stock only upon receipt from the holder of the
Transfer Cure Representation. If a holder owns certificated shares,
such holder shall also direct the custodian holding such shares of Class B
Common Stock to surrender the certificate or certificates therefor, duly
endorsed (or a reasonably acceptable affidavit and indemnity undertaking in the
case of a lost, stolen or destroyed certificate). To the extent
permitted by applicable law, all conversions pursuant to clauses (A), (B), (C),
(D), and (E) above shall be deemed to have been effected at the close of
business on the date the notice of desire to convert (and if applicable any
stock certificates or affidavits of loss thereof) is received by the
Corporation’s transfer agent.
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(iii)
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Automatic Conversion of Class B
Common Stock, Class C Common Stock and Class D Common
Stock. The shares of Class B Common Stock and Class C
Common Stock shall be subject to automatic conversion, without any action
by the holder thereof, as follows:
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(A)
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immediately
after the 12-month anniversary of the Trigger Date, each share of Class
B-1 Common Stock, each share of Class B-2 Common Stock, and each share of
Class B-3 Common Stock shall automatically convert into one share of
Common Stock;
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(B)
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in
the event of a Change in Control, each share of Class B Common Stock shall
automatically convert into one share of Common Stock, each share of Class
C Common Stock shall automatically convert into one share of Common Stock,
and each share of Class D Common Stock shall automatically convert into
one share of Common Stock, in each case, immediately prior to such Change
in Control;
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(C)
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in
the event that the Corporation has not initiated a Redemption on or before
the date that is thirty (30) days following the IPO Date, each share of
Class C Common Stock shall automatically convert into (i) 0.25 shares of
Class B-1 Common Stock, (ii) 0.25 shares of Class B-2 Common Stock and
(iii) 0.50 shares of Class B-3 Common
Stock;
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(D)
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in
the event that the Corporation consummates a Redemption, not later than
the Redemption Date, each share of Class C Common Stock outstanding
following such Redemption shall automatically convert into (i) 0.25 shares
of Class B-1 Common Stock, (ii) 0.25 shares of Class B-2 Common Stock and
(iii) 0.50 shares of Class B-3 Common Stock;
and
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(E)
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in
the event that that a Notice Date occurs, the Corporation may, in its sole
discretion, by action of the Board of Directors, beginning ninety (90)
days after such Notice Date, elect to convert up to twenty percent (20%)
of the then-outstanding shares of Class C Common Stock into Common Stock
on a pro rata basis based on the number of shares of Class C Common Stock
then held by each holder (a “Notice Date
Conversion”), with each such share of Class C Common Stock so
converted automatically converting into one share of Common Stock, and
upon such Notice Date Conversion, any share of Class C Common Stock not
converted into Common Stock automatically converting into (i) 0.25 shares
of Class B-1 Common Stock, (ii) 0.25 shares of Class B-2 Common Stock and
(iii) 0.50 shares of Class B-3 Common
Stock.
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To the
extent permitted by applicable law: all conversions pursuant to clauses (A), (D)
and (E) above shall be deemed to have been effected at the close of business on
the date of conversion; all conversions pursuant to clause (B) above shall be
deemed to have been effected immediately prior to the consummation of the
underlying transaction or sale, or upon the underlying change in composition of
the Board of Directors, as the case may be; and all conversions pursuant to
clauses (C) or (F) above shall be deemed to have been effected on such date as
the Board of Directors determines.
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(iv)
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Procedure for Transfers and
Withdrawal. Shares of Class B Common Stock, Class C
Common Stock or Class D Common Stock which are uncertificated shall be
transferred on the books of the Corporation upon presentation at the
office of the Secretary of the Corporation (or at such additional place or
places as may from time to time be designated by the Secretary of the
Corporation) of a written request for transfer in such form as the
Corporation requests, which shall include (I) a Transfer Representation
from the holder thereof for transfers of Class B Common Stock or Class C
Common Stock, or (II) Transfer Cure Representations for transfers of Class
D Common Stock or transfers by persons who have previously submitted a
Transfer Violation Representation of Common Securities, but not
subsequently submitted a Transfer Cure Representation. Shares of Class B
Common Stock, Class C Common Stock or Class D Common Stock represented by
certificates shall be transferred on the books of the Corporation, and a
new certificate therefor issued, upon presentation at the office of the
Secretary of the Corporation (or at such additional place or places as may
from time to time be designated by the Secretary of the Corporation) of
the certificate for the shares, in proper form for transfer and
accompanied by all requisite stock transfer tax stamps, and a Transfer
Representation from the holder thereof. In no event shall any
shares of Common Securities be Transferred by the holder thereof or
withdrawn from the custodian holding such shares unless the holder thereof
provides a Transfer Representation or Transfer Cure Representation, as
applicable, in connection with such withdrawal; if any holder fails to so
provide the Transfer Representation or Transfer Cure Representation, as
applicable, then the custodian holding such holder’s shares of Common
Securities shall not release such shares of Common Securities for a period
of 90 days after the date the request for withdrawal is deemed delivered,
and will thereafter release such shares of Common Securities only upon
receipt from the holder of the Transfer Cure Representation. In
the event that any Common Securities are, for any reason other than
pursuant to the terms hereof, released from the custodian appointed by the
Corporation to hold such shares, the transfer agent for the Corporation’s
capital stock shall instead hold such shares and all of the restrictions
contained herein shall continue to apply to such shares in book entry form
with equal effect.
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(v)
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Legends. Each
outstanding certificate, if any, representing shares of Class B Common
Stock, Class C Common Stock and Class D Common Stock shall contain a
legend reading substantially as follows, together with any other
endorsements that the Board of Directors deems necessary or
appropriate:
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“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) ARE SUBJECT TO
RESTRICTIONS ON TRANSFER SET FORTH IN THE CERTIFICATE OF INCORPORATION OF IMH
FINANCIAL CORPORATION, AS IT MAY BE AMENDED FROMTIME TO TIME (THE “CHARTER”) AND
ARE TO BE HELD BY A CUSTODIAN FOR THE BENEFIT OF THE HOLDER OF RECORD HEREOF
UNTIL SUCH RESTRICTIONS LAPSE BY THEIR TERMS. ANY PURPORTED SALE, GIFT,
MORTGAGE, PLEDGE, EXCHANGE, ASSIGNMENT OR OTHER DISPOSITION OR OTHER TRANSFER AS
DEFINED IN THE CHARTER (COLLECTIVELY, A “TRANSFER”), EXCEPT AS SET FORTH IN
SECTION 4.4(d) OF THE CHARTER, SHALL BE DEEMED NULL AND VOID. BY
ACCEPTING ANY INTEREST IN THE SECURITIES, THE RECIPIENT THEREOF SHALL BE DEEMED
TO HAVE AGREED TO, AND SHALL BECOME BOUND BY, ALL OF THE PROVISIONS SET FORTH IN
THE CHARTER, INCLUDING THE TRANSFER RESTRICTIONS SET FORTH THEREIN. A COPY OF
THE CHARTER MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF IMH
FINANCIAL CORPORATION.”
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(vi)
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Retirement of Class B Common
Stock, Class C Common Stock and Class D Common
Stock. The Corporation shall take all such action as is
necessary so that any shares of Class B Common Stock, Class C Common Stock
or Class D Common Stock that have been converted into shares of Common
Stock shall be retired and may not be reissued as shares of Class B Common
Stock, Class C Common Stock or Class D Common
Stock.
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(vii)
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Reservation of
Shares. The Corporation at all times shall reserve and
keep available, out of its authorized but unissued Common Stock, at least
the number of shares of Common Stock that would become issuable upon the
conversion of all shares of Class B Common Stock, Class C Common Stock and
Class D Common Stock then outstanding pursuant to Sections 4.4(d)(ii) and
4.4(d)(iii)
hereof. The Corporation at all times shall reserve and keep
available, out of its authorized but unissued Class D Common Stock, at
least the number of shares of Class D Common Stock that would become
issuable upon the conversion of all shares of Class B Common Stock then
outstanding pursuant to Section 4.4(d)(ii)
hereof.
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(e)
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Reclassifications, Subdivisions
and Combinations. No class of Common Securities, or
series thereof, may be reclassified, subdivided or combined, including
without limitation pursuant to any stock split, stock dividend or other
distribution, reorganization, reclassification or similar event, unless
such reclassification, subdivision or combination occurs simultaneously
and in the same proportion for each class of Common Securities, and each
series thereof, except that (i) the Common Stock, Class B-1 Common Stock,
Class B-2 Common Stock, Class B-3 Common Stock, and Class C Common Stock
may be reclassified as a single class of Common Securities at any time
following the conversion of all Class B-1 Common Stock, Class B-2 Common
Stock, Class B-3 Common Stock, and Class C Common Stock into Common Stock
pursuant to Sections
4.4(d)(ii) and (iii) hereof, and (ii)
the Common Stock, Class B Common Stock, and Class C Common Stock may be
reclassified as a single class of Common Securities at any time following
the conversion of all Class B Common Stock and Class C Common Stock into
Common Stock pursuant to Sections 4.4(d)(ii) and
(iii)
hereof. All dividends or other distributions payable in Common
Securities pursuant to stock splits of Common Securities, whether effected
by subdivision, combination or stock dividend, shall be paid as follows:
(i) only shares of Common Stock are paid or distributed with respect to
Common Stock; (ii) only shares of Class B-1 Common Stock are paid or
distributed with respect to Class B-1 Common Stock; (iii) only shares of
Class B-2 Common Stock are paid or distributed with respect to Class B-2
Common Stock; (iv) only shares of Class B-3 Common Stock are paid or
distributed with respect to Class B-3 Common Stock; (v) only shares of
Class B-4 Common Stock are paid or distributed with respect to Class B-4
Common Stock; (vi) only shares of Class C Common Stock are paid or
distributed with respect to Class C Common Stock; and (vii) only shares of
Class D Common Stock are paid or distributed with respect to Class D
Common Stock; provided, however, that (i)
except for the Special Dividend, if a dividend or other distribution is
paid with respect to one or more series or class of Common Securities
other than pursuant to stock splits of Common Securities, whether effected
by subdivision, combination or stock dividend, a proportionate dividend or
distribution shall paid with respect to the each other series of class of
Common Securities, and (ii) if a dividend or other distribution is paid
with respect to one or more classes or series of Common Securities
pursuant to stock splits or divisions of Common Securities, a
proportionate dividend or distribution shall be paid with respect to each
other class or series of Common
Securities.
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(f)
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Dividends and Other
Distributions.
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(i)
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All
holders of record of outstanding shares of Class B Common Stock on the
twelve-month anniversary of the IPO Date (the “Special
Dividend Record Date”) shall be entitled to payment of a one-time
cash dividend out of assets or funds of the Corporation legally available
therefor equal to $0.95 per share of Class B Common Stock then held by
such Person, with such payment to be made on a date determined by the
Board of Directors that is within 30 days of the Special Dividend Record
Date (the “Special
Dividend”); provided, however, that payment
of the Special Dividend shall be made to each holder of shares of Class B
Common Stock otherwise entitled to receive the Special Dividend only upon
receipt by the custodian holding such holder’s shares of Common Securities
of a Transfer Representation from such holder with respect to all of such
holder’s shares of Common Securities. Any holder of Class B Common Stock
on the Special Dividend Record Date that, upon the attempted withdrawal of
such holder’s Common Securities from the custodian, provides a Transfer
Violation Representation, shall promptly refund to the Corporation the
full amount of the Special Dividend that such holder received with respect
to its Common Securities.
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(ii)
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Subject
to the right to the Special Dividend, the rights of the holders of
Preferred Stock, and Section 4.4(e) hereof
with respect to stock splits or divisions of Common Securities, holders of
Common Securities are entitled to receive such dividends and other
distributions in cash, stock of any corporation or property of the
Corporation as may be declared thereon by the Board of Directors in its
sole discretion from time to time out of assets or funds of the
Corporation legally available therefor, and shall share equally on a per
share basis in all such dividends and other
distributions.
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(iii)
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Notwithstanding
anything herein to the contrary, unless both an Approved Financing has
been completed and the Common Stock has been listed on a national
securities exchange, no dividends or other distributions (including,
without limitation, the Special Dividend) otherwise due to the holders of
the Class B-4 Common Stock in respect of such holders’ shares of Class B-4
Common Stock shall be paid by the Corporation; provided, however, that such
dividends or distributions shall accrue on the books of Corporation and
become payable to the holders of the Class B-4 Common Stock immediately
following the occurrence of both an Approved Financing and the listing of
the Common Stock on a national securities
exchange.
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(g)
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Liquidation, Dissolution and
Winding Up. Unless both an Approved Financing has been
completed, and the Common Stock has been listed on a national securities
exchange, in the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, after
payment in full of the amounts required to be paid to the holders of
Preferred Stock (the “Preferred
Payments”), the remaining assets and funds of the Corporation (the
“Remaining
Assets”) shall be distributed as follows: (i) first, any Remaining
Assets with an aggregate fair market value less than or equal to the
difference of (A) $730,383,530.78 less (B) the amount of
any Preferred Payments, shall be distributed pro rata to the holders of
shares of the Common Stock, the Class B-1 Common Stock, the Class B-2
Common Stock, the Class B-3 Common Stock, the Class C Common Stock and the
Class D Common Stock; and (ii) second, any Remaining Assets with an
aggregate fair market value in excess of the difference of (A)
$730,383,530.78 less (B) the amount of
any Preferred Payments, shall be distributed pro rata to the holders of
shares of the Common Securities. Following the occurrence of
both an Approved Financing and the listing of the Common Stock on a
national securities exchange, in the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment in full of the Preferred Payments, the
Remaining Assets shall be distributed pro rata to the holders of shares of
the Common Securities. For purposes of this Section 4.4(g), the
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares
of stock, securities or other consideration) of all or substantially all
of the assets of the Corporation or a consolidation or merger of the
Corporation with one or more other corporations (whether or not the
Corporation is the corporation surviving the consolidation or merger)
shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary.
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(h)
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Fractional
Shares. Fractional shares of Common Securities may be
issued, but are not required to be issued, in the sole discretion of the
Board of Directors. If the Board of Directors elects to not
issue fractional shares of Common Securities in connection with the
conversion of any shares of Class B Common Stock, Class C Common Stock, or
Class D Common Stock pursuant to Section 4.4(d)(ii) or
(iii) hereof,
then after aggregating all fractional share amounts of each holder into
one or more whole shares of the class of Common Securities into which such
holder’s shares of Class B Common Stock, Class C Common Stock, or Class D
Common Stock are convertible, any remaining fractional share interest
shall either be (i) rounded up to the nearest whole share if the
fractional interest is equal to or greater than one-half (1⁄2) of a share,
in which case one additional share of the applicable class of Common
Securities will be issued to the such holder, or (ii) rounded down to the
nearest whole share if the fractional interest is less than one-half (1⁄2)
of a share.
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(i)
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Redemption.
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(i)
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In
the event of an IPO, the Corporation may, in its sole discretion, on a
date (the “Redemption
Date”) not later than thirty (30) days following the closing of the
IPO, redeem up to the lesser of (A) $50,000,000 or (B) thirty percent
(30%) of the Aggregate IPO Proceeds (the “Maximum
Aggregate Redemption Amount”) of shares of Class C Common Stock at
a price per share equal to the Redemption Price (the “Redemption”). In
the event that the product of (x) the number of shares of Class C Common
Stock outstanding at the Redemption Date multiplied by (y) the Redemption
Price is less than the Maximum Aggregate Redemption Amount, all
outstanding shares of Series C Common Stock shall be redeemed (a “Full
Redemption”). In the event that the product of (x) the
number of shares of Class C Common Stock outstanding at the Redemption
Date multiplied by (y) the Redemption Price exceeds the Maximum Aggregate
Redemption Amount (a “Partial
Redemption”), an aggregate number of shares of Class C Common Stock
equal to the quotient by dividing (I) the Maximum Aggregate Redemption
Amount by (II) the Redemption Amount shall be redeemed at a price per
share equal to the Redemption Price on a pro rata basis based on the
number of shares of Class C Common Stock held by each
holder.
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(ii)
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On
the Redemption Date, all shares of Class C Common Stock to be redeemed
(the “Redeemed
Shares”) shall be deemed to be surrendered to the Corporation by
the custodian thereof and all certificates representing such Redeemed
Shares shall be deemed to be surrendered to the Corporation by the
custodian thereof, and thereupon, with respect to each record holder of
such Redeemed Shares, an amount equal to the Redemption Price shall be
payable in cash to the order of the holder whose name appears on each such
certificate or on the stock ledger of the Corporation as the owner
thereof.
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(iii)
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In
the event of a Full Redemption, from and after the Redemption Date, unless
there shall have been a default in payment of any Redemption Price, all
rights of the holders of shares of Class C Common Stock, as holders of
Class C Common Stock (except the right to receive the Redemption Price,
without interest) shall cease with respect to such shares, and such shares
shall be retired and cancelled.
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(iv)
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In
the event of a Partial Redemption, from and after the Redemption Date,
unless there shall have been a default in payment of any Redemption Price,
all rights of the holders of Redeemed Shares, as holders of Class C Common
Stock with respect to such Redeemed Shares (except the right to receive
the Redemption Price, without interest) shall cease with respect to such
Redeemed Shares, and such Redeemed Shares shall be retired and
canceled. The shares of Class C Common Stock held by each
holder that are not Redeemed Shares shall be converted into Class B shares
as provided in Section
4.4(d)(iii)(D) hereof.
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(v)
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Shares
of Common Stock, Class B Common Stock or Class D Common Stock shall not be
redeemable.
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6.
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Limitation
of Liability. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability
(a) for any breach of the director’s duty of loyalty to the Corporation or
its stockholders, (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the DGCL, or (d) for any transaction from which the
director derived an improper personal benefit. If the DGCL is
amended to authorize the further elimination or limitation of the
liability of directors, then the liability of directors is eliminated or
limited to the full extent
authorized.
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7.
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Amendment
of Bylaws. In furtherance and not in limitation of the
powers conferred by the laws of the State of Delaware, the Board of
Directors is authorized to adopt, amend or repeal the Bylaws of the
Corporation (as may be amended and in effect from time to time, the “Bylaws”). No
adoption, amendment or repeal of any provision of the Bylaws by action of
stockholders shall be effective unless approved by the affirmative vote of
the holders of at least a majority of the voting power of the shares
entitled to vote generally in the election of
directors.
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8.
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Board of
Directors.
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8.1
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The
business and affairs of the Corporation are managed by or under the
direction of a Board of Directors. The number of directors of
the Corporation constituting the whole Board of Directors shall be fixed
exclusively by the Board of Directors. The election of directors need not
be by ballot.
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8.2
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Any
director may be removed, with or without cause, but only with the
affirmative vote of the holders of not less than a majority of the voting
power of all outstanding shares of stock of the Corporation entitled to
vote generally in the election of directors, considered for this purpose
as a single class.
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8.3
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Vacancies
and newly created directorships resulting from any increase in the
authorized number of directors or from any other cause (other than
vacancies and newly created directorships which the holders of any class
or classes of stock or series thereof are expressly entitled by this
Certificate of Incorporation to fill) shall, unless otherwise required by
resolution of the Board of Directors, be filled by, and only by, the
affirmative vote of a majority of the members of the Board of Directors
then in office, although less than a quorum, or by the sole remaining
director. Any director appointed to fill a vacancy or a newly
created directorship shall hold office until the next election of the
directors and until his or her successor is elected and qualified or until
his or her earlier resignation or
removal.
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9.
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Stockholder
Meetings. Except as set forth in the Bylaws, as may be
amended from time to time, the stockholders of the Corporation shall be
entitled to take any action by written consent as authorized by the DGCL.
In addition to the matters expressly required to be approved by
stockholders under the DGCL, the Corporation shall not change the nature
of its business unless approved by the affirmative vote of the holders of
at least a majority of the voting power of the shares entitled to vote
generally in the election of
directors.
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10.
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Indemnification.
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10.1
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Right to
Indemnification. The Corporation shall, as set forth
more fully in the Bylaws, indemnify and hold harmless each of its
directors and officers, and advance expenses (including attorneys fees)
incurred by directors and officers in matters subject to such
indemnification, in each case to the fullest extent permitted by Delaware
law, 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 such law
permitted the Corporation to provide prior to such amendment), and such
right to indemnification and advancement of expenses shall continue as to
any person who has ceased to be a director or officer and shall inure to
the benefit of his or her heirs, executors and
administrators. Notwithstanding the foregoing, except with
respect to proceedings to enforce rights to indemnification or advancement
of expenses, the Corporation shall not indemnify any current or former
director or officer in connection with a proceeding (or part thereof )
initiated by such director or officer unless such proceeding (or part
thereof ) was authorized by the Board of
Directors.
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10.2
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Non-Exclusivity of
Rights. The rights conferred on any person by this
Article 9 shall not be exclusive of any other right which such person may
have or hereafter acquire under applicable law, this Certificate of
Incorporation, the Bylaws, any agreement, vote of stockholders or
disinterested directors, or
otherwise.
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10.3
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Indemnification of Persons
Other Than Directors and Officers. This Article 9 shall
not limit the right of the Corporation, to the extent and in the manner
authorized or permitted thereby, to indemnify and to advance expenses,
pursuant to applicable law, the Bylaws, any agreement, vote of
stockholders or disinterested directors, or otherwise, to persons other
than directors or officers of the
Corporation.
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11.
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Amendments. Subject
to the provisions of this Certificate of Incorporation, the Corporation
reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon
stockholders in this Certificate of Incorporation are granted subject to
this reservation.
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[Signature
page follows]
16
IN
WITNESS WHEREOF, the undersigned duly authorized officer of the Corporation has
caused this Certificate of Incorporation to be executed as of June 18,
2010.
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By:
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/s/ Shane C.
Albers
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Name:
Shane C. Albers
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Title:
Incorporator
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17