Attached files
file | filename |
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S-1 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_s1.htm |
EX-3.3 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_ex3-3.htm |
EX-23.1 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_ex23-1.htm |
EX-10.4 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_ex10-4.htm |
Delaware
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PAGE
1
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The
First State
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I,
JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF “CAPITOL ACQUISITION CORP. II”, FILED IN THIS OFFICE ON THE
NINTH DAY OF AUGUST, A.D. 2010, AT 9:42 O’CLOCK A.M.
A
FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY RECORDER OF
DEEDS.
State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 10:18 AM 08/09/2010
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FILED 09:42 AM 08/09/2010
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SRV 100810488 - 4857588 FILE
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CERTIFICATE
OF INCORPORATION
OF
CAPITOL
ACQUISITION CORP. II
Pursuant
to Section 102 of the
Delaware
General Corporation Law
I, the
undersigned, in order to form a corporation for the purposes hereinafter stated,
under and pursuant to the provisions of the General Corporation Law of the State
of Delaware (the “GCL”), do hereby certify as follows:
FIRST:
The name of the corporation is Capitol Acquisition Corp. II (hereinafter
sometimes referred to as the “Corporation”)
SECOND:
The registered office of the Corporation is to be located at 615 S. DuPont Hwy.,
Kent County, Dover, Delaware. The name of its registered agent at that address
is National Corporate Research, Ltd.
THIRD:
The purpose of the Corporation shall be to engage in any lawful act or activity
for which corporations may be organized under the GCL.
FOURTH:
The total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is 201,000,000 of which 200,000,000 shares shall
be Common Stock of the par value of $.0001 per share and 1,000,000 shares shall
be Preferred Stock of the par value of $.0001 per share.
A. Preferred Stock. The
Board of Directors is expressly granted authority to issue shares of the
Preferred Stock, in one or more series, and to fix for each such
series such voting powers, full or limited, and such designations, preferences
and relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a “Preferred Stock Designation”) and as
may be permitted by the GCL. The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, without a separate vote of the holders of the
Preferred Stock, or any series thereof, unless a vote of any such holders is
required pursuant to any Preferred Stock Designation.
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B. Common Stock. Except
as otherwise required by law or as otherwise provided in any Preferred Stock
Designation, the holders of the Common Stock shall exclusively possess all
voting power and each share of Common Stock shall have one vote.
FIFTH: The
name and mailing address of the sole incorporator of the Corporation are as
follows:
Name
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Address
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Jeffrey
M. Gallant
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Graubard
Miller
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The
Chrysler Building
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405
Lexington Avenue
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New
York, New York 10174
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SIXTH: The
Board of Directors shall be divided into three classes; Class A, Class B and
Class C. The number of directors in each class shall be as nearly equal as
possible. At the first election of directors by the incorporator, the
incorporator shall elect a Class C director for a term expiring at the
Corporation’s third Annual Meeting of Stockholders. The Class C director shall
then appoint additional Class A, Class B and Class C directors, as necessary.
The directors in Class A shall be elected for a term expiring at the first
Annual Meeting of Stockholders, the directors in Class B shall be elected for a
term expiring at the second Annual Meeting of Stockholders and the directors in
Class C shall be elected for a term expiring at the third Annual Meeting of
Stockholders. Commencing at the first Annual Meeting of Stockholders, and at
each annual meeting thereafter, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election. Except as the
GCL may otherwise require, in the interim between annual meetings of
stockholders or special meetings of stockholders called for the election of
directors and/or the removal of one or more directors and the filling of any
vacancy in that connection, newly created directorships and any vacancies in the
Board of Directors, including unfilled vacancies resulting from the removal of
directors for cause, may be filled by the vote of a majority of the remaining
directors then in office, although less than a quorum (as defined in the
Corporation’s Bylaws), or by the sole remaining director. All directors shall
hold office until the expiration of their respective terms of office and until
their successors shall have been elected and qualified. A director elected to
fill a vacancy resulting from the death, resignation or removal of a director
shall serve for the remainder of the full term of the director whose death,
resignation or removal shall have created such vacancy and until his successor
shall have been elected and qualified.
SEVENTH: The
following provisions are inserted for the management of the business and for the
conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders:
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A. Election
of directors need not be by ballot unless the by-laws of the Corporation so
provide.
B. The
Board of Directors shall have the power, without the assent or vote of the
stockholders, to make, alter, amend, change, add to or repeal the by-laws of the
Corporation as provided in the by-laws of the Corporation.
C. The
directors in their discretion may submit any contract or act for approval or
ratification at any annual meeting of the stockholders or at any meeting of the
stockholders called for the purpose of considering any such act or contract, and
any contract or act that shall be approved or be ratified by the vote of the
holders of a majority of the stock of the Corporation which is represented in
person or by proxy at such meeting and entitled to vote thereat (provided that a
lawful quorum of stockholders be there represented in person or by proxy) shall
be as valid and binding upon the Corporation and upon all the stockholders as
though it had been approved or ratified by every stockholder of the Corporation,
whether or not the contract or act would otherwise be open to legal attack
because of directors’ interests, or for any other reason.
D. In
addition to the powers and authorities hereinbefore or by statute expressly
conferred upon them, the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this Certificate of Incorporation, and to any by-laws from time to
time made by the stockholders; provided, however, that no by-law so made shall
invalidate any prior act of the directors which would have been valid if such
by-law had not been made.
EIGHTH: A. A
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which
the director derived an improper personal benefit. If the GCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended. Any repeal or modification of this paragraph A by the stockholders of
the Corporation shall not adversely affect any right or protection of a director
of the Corporation with respect to events occurring prior to the time of such
repeal or modification.
B. The
Corporation, to the full extent permitted by Section 145 of the GCL, as amended
from time to time, shall indemnify all persons whom it may indemnify pursuant
thereto. Expenses (including attorneys’ fees) incurred by an officer or director
in defending any civil, criminal, administrative, or investigative action, suit
or proceeding for which such officer or director may be entitled to
indemnification hereunder shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized hereby.
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NINTH: Whenever
a compromise or arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
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IN WITNESS WHEREOF, I have signed this
Certificate of Incorporation this 9th
day of August, 2010.
/s/ Jeffrey M. Gallant
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Jeffrey
M. Gallant, Sole
Incorporator
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