Attached files
Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JWC ACQUISITION CORP.
CERTIFICATE OF INCORPORATION
OF
JWC ACQUISITION CORP.
JWC Acquisition Corp., a corporation organized and existing under the laws of the State of
Delaware (the Corporation), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is JWC Acquisition Corp. The Corporation was originally
incorporated under the name JWC Acquisition Corp. and the original certificate of incorporation
was filed with the Secretary of State of the State of Delaware on July 22, 2010 (the Original
Certificate).
2. This Second Amended and Restated Certificate of Incorporation (the Amended and Restated
Certificate) was duly adopted by the Board of Directors of the Corporation (the Board) and the
stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
3. This Amended and Restated Certificate restates, integrates and further amends the
provisions of the Original Certificate.
4. Certain capitalized terms used in this Amended and Restated Certificate are defined where
appropriate herein.
5. The text of the Original Certificate is hereby restated and amended in its entirety to read
as follows:
ARTICLE I
NAME
NAME
The name of the corporation is JWC Acquisition Corp. (the Corporation).
ARTICLE II
PURPOSE
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). In addition to the powers and privileges conferred upon the Corporation by law and those
incidental thereto, the Corporation shall possess and may exercise all the powers and privileges
that are necessary or convenient to the conduct, promotion or attainment of the business or
purposes of the Corporation including, but not limited to, effecting a merger, capital stock
exchange, asset acquisition, stock purchase, reorganization or similar business combination,
involving the Corporation and one or more businesses (a Business Combination).
ARTICLE III
REGISTERED AGENT
REGISTERED AGENT
The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, City of Wilmington,
County of New Castle, and the name of the Corporations registered agent at such address is The
Corporation Trust Company.
ARTICLE IV
CAPITALIZATION
CAPITALIZATION
Section 4.1 Authorized Capital Stock. The total number of shares of all classes of
capital stock which the Corporation is authorized to issue is 401,000,000 shares, consisting of
400,000,000 shares of common stock, par value $0.0001 per share (the Common Stock), and 1,000,000
shares of preferred stock, par value $0.0001 per share (the Preferred Stock).
Section 4.2 Preferred Stock. Subject to Article IX of this Amended and Restated
Certificate, the Preferred Stock may be issued from time to time in one or more series. The Board
is hereby expressly authorized to provide for the issuance of shares of the Preferred Stock in one
or more series and to establish from time to time the number of shares to be included in each such
series and to fix the voting rights, if any, designations, powers, preferences and relative,
participating, optional and other special rights, if any, of each such series and any
qualifications, limitations and restrictions thereof, as shall be stated in the resolution or
resolutions adopted by the Board providing for the issuance of such series and included in a
certificate of designations (a Preferred Stock Designation) filed pursuant to the DGCL, and the
Board is hereby expressly vested with the authority to the full extent provided by law, now or
hereafter, to adopt any such resolution or resolutions.
Section 4.3 Common Stock.
(a) The holders of shares of Common Stock shall be entitled to one vote for each such share on
each matter properly submitted to the stockholders on which the holders of the Common Stock are
entitled to vote. Except as otherwise required by law or this Amended and Restated Certificate
(including any Preferred Stock Designation), at any annual or special meeting of the stockholders
of the Corporation, the holders of the Common Stock shall have the exclusive right to vote for the
election of directors and on all other matters properly submitted to a vote of the stockholders.
Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated
Certificate (including a Preferred Stock Designation), the holders of the Common Stock shall not be
entitled to vote on any amendment to this Amended and Restated Certificate (including any amendment
to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding
series of the Preferred Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such series, to vote thereon pursuant
to this Amended and Restated Certificate (including any Preferred Stock Designation).
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(b) Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock
and the provisions of Article IX hereof, the holders of the Common Stock shall be entitled to
receive such dividends and other distributions (payable in cash, property or capital stock of the
Corporation) when, as and if declared thereon by the Board from time to time out of any assets or
funds of the Corporation legally available therefor, and shall share equally on a per share basis
in such dividends and distributions.
(c) Subject to the rights, if any, of the holders of any outstanding series of the Preferred
Stock and the provisions of Article IX hereof, in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment
of the debts and other liabilities of the Corporation, the holders of the Common Stock shall be
entitled to receive all the remaining assets of the Corporation available for distribution to its
stockholders, ratably in proportion to the number of shares of the Common Stock held by them.
Section 4.4 Rights and Options. The Corporation has the authority to create and issue
rights, warrants and options entitling the holders thereof to purchase shares of any class or
series of the Corporations capital stock or other securities of the Corporation, and such rights,
warrants and options shall be evidenced by instrument(s) approved by the Board. The Board is
empowered to set the exercise price, duration, times for exercise and other terms and conditions of
such rights, warrants or options; provided, however, that the consideration to be
received for any shares of capital stock subject thereto may not be less than the par value
thereof.
ARTICLE V
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 5.1 Board Powers. The business and affairs of the Corporation shall be managed
by, or under the direction of, the Board. In addition to the powers and authority expressly
conferred upon the Board by statute, this Amended and Restated Certificate or the Bylaws (Bylaws)
of the Corporation, the Board is hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions
of the DGCL, this Amended and Restated Certificate and any Bylaws adopted by the stockholders;
provided, however, that no Bylaws hereafter adopted by the stockholders shall
invalidate any prior act of the Board that would have been valid if such Bylaws had not been
adopted.
Section 5.2 Number, Election and Term.
(a) The number of directors of the Corporation, other than those who may be elected by the
holders of one or more series of the Preferred Stock voting separately by class or series, shall be
fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of
the Whole Board. For purposes of this Amended and Restated Certificate, Whole Board shall mean
the total number of directors the Corporation would have if there were no vacancies.
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(b) Subject to Section 5.5 hereof, the Board shall be divided into three classes, as
nearly equal in number as possible and designated Class I, Class II and Class III. The Board is
authorized to assign members of the Board already in office to Class I, Class II or Class III. The
term of the initial Class I Directors shall expire at the first annual meeting of the stockholders
of the Corporation following the effectiveness of this Amended and Restated Certificate; the term
of the initial Class II Directors shall expire at the second annual meeting of the stockholders of
the Corporation following the effectiveness of this Amended and Restated Certificate; and the term
of the initial Class III Directors shall expire at the third annual meeting of the stockholders of
the Corporation following the effectiveness of this Amended and Restated Certificate. At each
succeeding annual meeting of the stockholders of the Corporation, beginning with the first annual
meeting of the stockholders of the Corporation following the effectiveness of this Amended and
Restated Certificate, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. Subject to Section 5.5 hereof, if the
number of directors is changed, any increase or decrease shall be apportioned by the Board among
the classes so as to maintain the number of directors in each class as nearly equal as possible,
but in no case shall a decrease in the number of directors shorten the term of any incumbent
director.
(c) Subject to Section 5.5 hereof, a director shall hold office until the annual
meeting for the year in which his or her term expires and until his or her successor has been
elected and qualified, subject, however, to such directors earlier death, resignation, retirement,
disqualification or removal.
(d) Unless and except to the extent that the Bylaws shall so require, the election of
directors need not be by written ballot.
Section 5.3 Newly Created Directorships and Vacancies. Subject to Section 5.5
hereof, newly created directorships resulting from an increase in the number of directors and any
vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or
other cause may be filled solely by a majority vote of the remaining directors then in office, even
if less than a quorum, or by a sole remaining director (and not by stockholders), and any director
so chosen shall hold office for the remainder of the full term of the class of directors to which
the new directorship was added or in which the vacancy occurred and until his or her successor has
been elected and qualified, subject, however, to such directors earlier death, resignation,
retirement, disqualification or removal.
Section 5.4 Removal. Subject to Section 5.5 hereof, any or all of the
directors may be removed from office at any time, but only for cause and only by the affirmative
vote of holders of a majority of the voting power of all then outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors, voting together as a
single class.
Section 5.5 Preferred Stock Directors. Notwithstanding any other provision of this
Article V, and except as otherwise required by law, whenever the holders of one or more series of
the Preferred Stock shall have the right, voting separately by class or series, to elect one or
more directors, the term of office, the filling of vacancies, the removal from office and other
features of such directorships shall be governed by the terms of such series of the Preferred Stock
as set
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forth in this Amended and Restated Certificate (including any Preferred Stock Designation) and
such directors shall not be included in any of the classes created pursuant to this Article V
unless expressly provided by such terms.
ARTICLE VI
BYLAWS
BYLAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall
have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of
the Whole Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may
be adopted, amended, altered or repealed by the stockholders; provided, however,
that in addition to any vote of the holders of any class or series of capital stock of the
Corporation required by law or by this Amended and Restated Certificate (including any Preferred
Stock Designation), the affirmative vote of the holders of at least a majority of the voting power
of all then outstanding shares of capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class, shall be required for the
stockholders to adopt, amend, alter or repeal the Bylaws.
ARTICLE VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT
Section 7.1 Meetings. Subject to the rights of the holders of any outstanding series
of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders
of the Corporation may be called only by the Chairman of the Board, Chief Executive Officer of the
Corporation, or the Board pursuant to a resolution adopted by a majority of the Whole Board, and
the ability of the stockholders to call a special meeting is hereby specifically denied.
Section 7.2 Advance Notice. Advance notice of stockholder nominations for the election
of directors and of business to be brought by stockholders before any meeting of the stockholders
of the Corporation shall be given in the manner provided in the Bylaws.
Section 7.3 Action by Written Consent. Subsequent to the consummation of the Offering,
any action required or permitted to be taken by the stockholders of the Corporation must be
effected by a duly called annual or special meeting of such holders and may not be effected by
written consent of the stockholders.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Director Liability. A director of the Corporation shall not
be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent such exemption from liability or limitation thereof is not
permitted under the DGCL as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any right or protection
of a director of the corporation hereunder in respect of any act or omission occurring prior to the
time of such amendment, modification or repeal.
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Section 8.2 Indemnification and Advancement of Expenses.
(a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be
amended, the Corporation shall indemnify and hold harmless each person who is or was made a party
or is threatened to be made a party to or is otherwise involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a
proceeding) by reason of the fact that he or she is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, other enterprise or nonprofit entity, including service with
respect to an employee benefit plan (an indemnitee), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent, or in any other
capacity while serving as a director, officer, employee or agent, against all liability and loss
suffered and expenses (including, without limitation, attorneys fees, judgments, fines, ERISA
excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee
in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by
applicable law pay the expenses (including attorneys fees) incurred by an indemnitee in defending
or otherwise participating in any proceeding in advance of its final disposition; provided,
however, that, to the extent required by applicable law, such payment of expenses in
advance of the final disposition of the proceeding shall be made only upon receipt of an
undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall
ultimately be determined that the indemnitee is not entitled to be indemnified under this
Section 8.2 or otherwise. The rights to indemnification and advancement of expenses
conferred by this Section 8.2 shall be contract rights and such rights shall continue as to
an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions
of this Section 8.2(a), except for proceedings to enforce rights to indemnification and
advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the Board.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by
this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or
hereafter acquire under law, this Amended and Restated Certificate, the By-Laws, an agreement, vote
of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation
or by changes in law, or the adoption of any other provision of this Amended and Restated
Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be
prospective only (except to the extent such amendment or change in law permits the Corporation to
provide broader indemnification rights on a retroactive basis than permitted prior thereto), and
shall not in any way diminish or adversely affect any right or protection existing at the time of
such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding
(regardless of when such proceeding is first threatened, commenced or completed)
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arising out of, or related to, any act or omission occurring prior to such repeal or amendment
or adoption of such inconsistent provision.
(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and
in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other
than indemnitees.
ARTICLE IX
BUSINESS COMBINATION REQUIREMENTS; EXISTENCE
BUSINESS COMBINATION REQUIREMENTS; EXISTENCE
Section 9.1 General.
(a) The provisions of this Article IX shall apply during the period commencing upon the
effectiveness of this Amended and Restated Certificate of Incorporation and terminating upon the
consummation of the Corporations initial Business Combination and may be amended to be effective
prior to the consummation of the initial Business Combination only by the affirmative vote of the
holders of at least sixty-five percent (65%) of all then outstanding shares of the Common Stock.
(b) Immediately after the Corporations initial public offering (the Offering), a certain
amount of the net offering proceeds received by the Corporation in the Offering (including the
proceeds of any exercise of the underwriters over-allotment option) and certain other amounts
specified in the Corporations registration statement on Form S-1, as initially filed with the
Securities and Exchange Commission on August 12, 2010, as amended (the Registration Statement),
shall be deposited in a trust account established for the benefit of the Public Stockholders (the
Trust Account), pursuant to a trust agreement described in the Registration Statement. The
funds held in the Trust Account will be held in the name of a
wholly-owned subsidiary of the Corporation that is qualified as a
Massachusetts security corporation. Purchasers
of the Corporations Common Stock in the Offering or in the secondary market following the Offering
(whether or not such purchasers are affiliates of JWC Acquisition, LLC (the Sponsor)) are
referred to herein as Public Stockholders.
Section 9.2 Redemption Rights.
(a) Prior to the consummation of the initial Business Combination, the Corporation shall
provide all holders of shares of the Common Stock sold as part of the units in the Offering (the
Offering Shares) with the opportunity to have their Offering Shares redeemed upon the
consummation of the initial Business Combination pursuant to, and subject to the limitations of,
Sections 9.2(b) and 9.2(c) (such rights of such holders to have their Offering
Shares redeemed pursuant to such Sections, the Redemption Rights) hereof for cash equal to the
applicable redemption price per share determined in accordance with Section 9.2(b) hereof
(the Redemption Price); provided, however, that the Corporation shall not redeem
or repurchase Offering Shares to the extent that such redemption would result in the Corporations
failure to have net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the
Securities Exchange Act of 1934, as amended (the Exchange Act)) in excess of $5 million (such
limitation hereinafter called the Redemption Limitation). Notwithstanding anything to the
contrary contained in this Amended and Restated Certificate, there shall be no Redemption Rights or
liquidating distributions with respect to any warrant issued pursuant to the Offering.
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(b) If
the Corporation offers to redeem the Offering Shares other than in
conjunction with a stockholder vote on an initial Business
Combination pursuant to a proxy solicitation, the Corporation shall offer to redeem the Offering Shares upon the consummation of the
initial Business Combination, subject to lawfully available funds therefor, in accordance with the
provisions of Section 9.2(a) hereof pursuant to a tender offer in accordance with Rule
13e-4 and Regulation 14E of the Exchange Act (such rules and regulations hereinafter called the
Tender Offer Rules) which it shall commence prior to the consummation of the initial Business
Combination; provided, however, that if a stockholder vote is required by law to
approve the proposed initial Business Combination, or the Corporation decides to hold a stockholder
vote on the proposed initial Business Combination for business or other legal reasons, the
Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds
therefor, in accordance with the provisions of Section 9.2(a) hereof in conjunction with a
proxy solicitation pursuant to applicable Securities and Exchange Commission proxy rules at a price
per share equal to the Redemption Price calculated in accordance with the following provisions of
this Section 9.2(b). In the event that the Corporation offers to redeem the Offering Shares
pursuant to a tender offer in accordance with the Tender Offer Rules, the Redemption Price per
share of the Common Stock payable to holders of the Offering Shares tendering their Offering Shares
pursuant to such tender offer shall be equal to the quotient obtained by dividing (i) the aggregate
amount on deposit in the Trust Account as of two days prior to the date of the commencement of the
tender offer plus interest accrued from the date of the commencement of such tender offer until two
business days prior to the consummation of the initial Business Combination, less franchise and
income taxes payable, by (ii) the total number of then outstanding Offering Shares. If the
Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on the
proposed initial Business Combination pursuant to a proxy solicitation, the Redemption Price per
share of the Common Stock payable to holders of the Offering Shares exercising their Redemption
Rights shall be equal to the quotient obtained by dividing (i) the aggregate amount on deposit in
the Trust Account as of two business days prior to the consummation of the initial Business
Combination, less franchise and income taxes payable, by (ii) the total number of then outstanding
Offering Shares.
(c) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder
vote on an initial Business Combination pursuant to a proxy solicitation, a Public Stockholder,
together with any affiliate of such stockholder or any other person with whom such stockholder is
acting in concert or as a group (as defined under Section 13(d)(3) of the Exchange Act), shall be
restricted from seeking Redemption Rights with respect to more than an aggregate of 10% of the
Offering Shares.
(d) In the event that the Corporation has not consummated a Business Combination within 21
months from the closing of the Offering, the Corporation shall (i) cease all operations except for
the purpose of winding up, (ii) as promptly as reasonably possible, subject to lawfully available
funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable
in cash, equal to the quotient obtained by dividing (A) the aggregate amount
then on deposit in the Trust Account, including interest but net of franchise and income taxes payable (less up to
$100,000 of such net interest to pay dissolution expenses), by (B) the total number of then
outstanding Offering Shares, which redemption will completely extinguish rights of the Public
Stockholders (including the right to receive further liquidation distributions, if any), subject to
applicable law, and subject to the requirement that any refund of income taxes that
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were paid from the Trust Account which is received after the redemption shall be distributed
to the former Public Stockholders, and (iii) as promptly as reasonably possible following such
redemptions, subject to the approval of the remaining stockholders and the Board in accordance with
applicable law, dissolve and liquidate, subject in each case to the Corporations obligations under
the DGCL to provide for claims of creditors and other requirements of applicable law.
(e) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder
vote on an initial Business Combination, the Corporation shall consummate the proposed Business
Combination only if such initial Business Combination is approved by the affirmative vote of the
holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting
held to consider such initial Business Combination.
Section 9.3 Distributions from the Trust Account
(a) A Public Stockholder shall be entitled to receive funds from the Trust Account only (i) as
provided in Section 9.2(d) hereof or (ii) as provided in Sections 9.2(a) and
9.2(b) hereof. In no other circumstances shall a Public Stockholder have any right or
interest of any kind in or to distributions from the Trust Account, and no stockholder other than a
Public Stockholder shall have any interest in or to the Trust Account.
(b) Payment of the amounts necessary to satisfy the Redemption Rights exercised shall be made
as promptly as practical after the consummation of the initial Business Combination and the
delivery of shares by the applicable stockholder.
(c) Each Public Stockholder that does not exercise its Redemption Rights shall retain its
interest in the Corporation and shall be deemed to have given its consent to the release of the
remaining funds in the Trust Account to the Corporation, and following payment to any Public
Stockholders exercising their Redemption Rights, the remaining funds in the Trust Account shall be
released to the Corporation.
(d) The exercise by a Public Stockholder of the Redemption Rights shall be conditioned on such
Public Stockholder following the specific procedures for redemptions set forth by the Corporation
in any applicable tender offer or proxy statement materials sent to the Corporations Public
Stockholders relating to the proposed initial Business Combination..
(e) Notwithstanding anything to the contrary in this Article IX, but subject to the Redemption
Limitation, if the Corporation seeks stockholder approval of an initial Business Combination, prior
to the consummation thereof, the Corporation or its designee may instruct the trustee under the
Trust Agreement that amounts necessary to purchase up to 15% of the Offering Shares at any time
commencing after the filing of a preliminary proxy statement for the initial Business Combination
and ending on the date of the stockholder meeting to approve such initial Business
Combination (such purchases being referred to herein as Open Market Purchases) be released to the
Corporation from the Trust Account. Such Open Market Purchases may be made only at per share prices
(inclusive of commissions) that do not exceed an amount equal to (A) the aggregate amount then on
deposit in the Trust Account divided by (B)
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the total number of Offering Shares then outstanding. Any Offering Shares so purchased shall
be immediately cancelled.
Section 9.4 Share Issuances. Prior to the consummation of the Corporations initial
Business Combination, the Corporation shall not issue any additional shares of capital stock of the
Corporation that would entitle the holders thereof to receive funds from the Trust Account or vote
on any Business Combination.
Section 9.5 Transactions with Affiliates. In the event the Corporation enters into a
Business Combination with a target business that is affiliated with the Sponsor, or the directors
or officers of the Corporation, the Corporation, or a committee of the independent directors of the
Corporation, shall obtain an opinion from an independent investment banking firm that is a member
of Financial Industry Regulatory Authority that such Business Combination is fair to the
stockholders of the Corporation from a financial point of view.
Section 9.6
No Transactions with Other Blank Check Companies. The Corporation shall not enter
into a Business Combination with another blank check company or a similar company with nominal
operations.
ARTICLE X
CORPORATE OPPORTUNITY
CORPORATE OPPORTUNITY
The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply
with respect to the Corporation or any of its officers or directors or in circumstances where the
application of any such doctrine would conflict with (i) any fiduciary duties or contractual
obligations they may have currently or in the future in respect of J.W. Childs Associates, L.P. as a
general partner of J.W. Childs Equity Partners II L.P. and J.W.
Childs Equity Partners III L.P., or any companies in which
J.W. Childs Equity Partners II, L.P. or J.W. Childs Equity Partners III, L.P. have invested, or (ii) any other fiduciary duties or contractual obligations they may have
as of the date of this Amended and Restated Certificate of Incorporation.
ARTICLE
XI
AMENDMENT OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
AMENDMENT OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Amended and Restated Certificate (including any Preferred Stock Designation), in the manner
now or hereafter prescribed by this Amended and Restated Certificate and the DGCL; and, except as
set forth in Article VIII, all rights, preferences and privileges herein conferred upon
stockholders, directors or any other persons by and pursuant to this Amended and Restated
Certificate in its present form or as hereafter amended are granted subject to the right reserved
in this Article XI; provided, however, that Article IX of this Amended and Restated
Certificate may be amended only as provided therein.
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IN WITNESS WHEREOF, JWC Acquisition Corp. has caused this Second Amended and Restated
Certificate to be duly executed in its name and on its behalf by its President and Chief Executive
Officer this ___ day of ___, 2010.
JWC ACQUISITION CORP. |
||||
By: | ||||
Adam L. Suttin | ||||
President | ||||
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