Attached files
file | filename |
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S-1/A - S-1/A - Regional Management Corp. | b86265a3sv1za.htm |
EX-21.1 - EX-21.1 - Regional Management Corp. | b86265a3exv21w1.htm |
EX-10.1 - EX-10.1 - Regional Management Corp. | b86265a3exv10w1.htm |
EX-23.1 - EX-23.1 - Regional Management Corp. | b86265a3exv23w1.htm |
EX-10.6 - EX-10.6 - Regional Management Corp. | b86265a3exv10w6.htm |
EX-10.2.1 - EX-10.2.1 - Regional Management Corp. | b86265a3exv10w2w1.htm |
EX-10.5 - EX-10.5 - Regional Management Corp. | b86265a3exv10w5.htm |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
REGIONAL MANAGEMENT CORP.
The present name of the corporation is Regional Management Corp. (the Corporation).
The Corporation was incorporated under the name Regional Management Corp. as a South Carolina
corporation by the filing of its original articles of incorporation with the State of South
Carolina Secretary of State on March 16, 1987. On [_____], 2011, the Corporation was converted to
a Delaware corporation by the filing of the Certificate of Conversion to Corporation and the
original certificate of incorporation (the Original Certificate of Incorporation) with
the Secretary of State of the State of Delaware. This Amended and Restated Certificate of
Incorporation of the Corporation, which amends, restates and integrates the provisions of the
Original Certificate of Incorporation, was duly adopted in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of Delaware and by the written
consent of the stockholders in accordance with Section 228 of the General Corporation Law of the
State of Delaware. The Original Certificate of Incorporation of the Corporation is hereby amended
and restated to read in its entirety as follows:
ARTICLE I
Section 1.1. Name. The name of the Corporation is Regional Management Corp. (the Corporation).
ARTICLE II
Section 2.1. Address. The registered office of the Corporation in the State of Delaware is 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801; and the name of the Corporations registered agent
at such address is The Corporation Trust Company.
ARTICLE III
Section 3.1. 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).
ARTICLE IV
Section 4.1. Capitalization. The total number of shares of all classes of stock that the Corporation is authorized to
issue is 1,100,000,000 shares, consisting of (i) 1,000,000,000 shares of Common Stock, par value
$0.10 per share (Common Stock) and (ii) 100,000,000 shares of Preferred Stock, par value
$0.10 per share (Preferred Stock). The number of authorized shares of any of the Common
Stock or 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 in voting power of the stock
of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of
the DGCL (or any successor
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provision thereto), and no vote of the holders of any of the Common Stock or Preferred Stock
voting separately as a class shall be required therefor.
Section 4.2. Preferred Stock.
(A) The Board of Directors of the Corporation (the Board) is hereby expressly
authorized, by resolution or resolutions, at any time and from time to time, to provide, out of the
unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to
each such series, to fix the number of shares constituting such series and the designation of such
series, the voting powers (if any) of the shares of such series, and the powers, preferences and
relative, participating, optional or other special rights, if any, and any qualifications,
limitations or restrictions thereof, of the shares of such series and to cause to be filed with the
Secretary of State of the State of Delaware a certificate of designation with respect thereto. The
powers, preferences and relative, participating, optional and other special rights of each series
of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding.
(B) Except as otherwise required by law, holders of a series of Preferred Stock, as such,
shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this
Amended and Restated Certificate of Incorporation (including any certificate of designations
relating to such series).
Section 4.3. Common Stock.
(A) Voting Rights. Each holder of Common Stock, as such, shall be entitled to one vote
for each share of Common Stock held of record by such holder on all matters on which stockholders
generally are entitled to vote; provided, however, that to the fullest extent permitted by law,
holders of Common Stock, as such, shall have no voting power with respect to, and shall not be
entitled to vote on, any amendment to this Amended and Restated Certificate of Incorporation
(including any certificate of designations relating to any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of 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 of Incorporation
(including any certificate of designations relating to any series of Preferred Stock) or pursuant
to the DGCL.
(B) Dividends and Distributions. Subject to applicable law and the rights, if any, of
the holders of any outstanding series of Preferred Stock or any class or series of stock having a
preference over or the right to participate with the Common Stock with respect to the payment of
dividends and other distributions in cash, stock of any corporation or property of the Corporation,
such dividends and other distributions may be declared and paid on the Common Stock out of the
assets of the Corporation that are by law available therefor at such times and in such amounts as
the Board in its discretion shall determine.
(C) Liquidation, Dissolution or Winding Up. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment
or provision for payment of the debts and other liabilities of the Corporation and of the
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preferential and other amounts, if any, to which the holders of Preferred Stock shall be
entitled, the holders of all outstanding shares of Common Stock shall be entitled to receive the
remaining assets of the Corporation available for distribution ratably in proportion to the number
of shares held by each such stockholder.
ARTICLE V
Section 5.1. By-Laws. In furtherance and not in limitation of the powers conferred by the DGCL, the Board is
expressly authorized to make, amend, alter, change, add to or repeal the by-laws of the Corporation
without the assent or vote of the stockholders in any manner not inconsistent with the laws of the
State of Delaware or this Amended and Restated Certificate of Incorporation. Notwithstanding
anything to the contrary contained in this Amended and Restated Certificate of Incorporation, for
so long as the Shareholders party to the Amended and Restated Shareholders Agreement (the
Shareholders Agreement) dated on or about the date hereof as amended from time to time,
among the Corporation and the Shareholders from time to time party thereto (collectively, the
Shareholders), collectively, continue to beneficially own at least 40% of the total
voting power of all the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, the affirmative vote of
the holders of a majority of the voting power of all the then outstanding shares of 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 make, amend, alter, change, add to or repeal any
provision of the by-laws of the Corporation. From and after the date on which the Shareholders
cease to beneficially own at least 40% of the total voting power of all the then outstanding shares
of stock of the Corporation entitled to vote generally in the election of directors, voting
together as a single class, the affirmative vote of the holders of at least 80% of the voting power
of all the then outstanding shares of 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
make, amend, alter, change, add to or repeal any provision of the by-laws of the Corporation.
ARTICLE VI
Section 6.1. Board of Directors.
(A) The business and affairs of the Corporation shall be managed by or under the direction of
the Board, with the exact number of directors to be determined from time to time by resolution
adopted by the Board.
(B) Whenever the holders of any one or more series of Preferred Stock issued by the
Corporation shall have the right, voting separately as a series or separately as a class with one
or more such other series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, removal and other features of such directorships shall be governed by the
terms of this Amended and Restated Certificate of Incorporation (including any certificate of
designations relating to any series of Preferred Stock) applicable thereto. Notwithstanding
Section 6.1(A), the number of directors that may be elected by the holders of any such series of
Preferred Stock shall be in addition to the number fixed pursuant to Section 6.1(A) hereof.
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(C) Directors of the Corporation need not be elected by written ballot unless the by-laws of
the Corporation shall so provide.
ARTICLE VII
Section 7.1. Meetings of Stockholders. For so long as the Shareholders, collectively, continue to beneficially own at least 40% of
the total voting power of all the then outstanding shares of stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class, any action required
or permitted to be taken by the holders of stock of the Corporation may be effected by written
consent without a meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present and voted and shall
be delivered to the Corporation by delivery to its registered office in Delaware, its principal
place of business, or to an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. From and after the date on which the
Shareholders cease to beneficially own at least 40% of the total voting power of all the then
outstanding shares of stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, any action required or permitted to be taken by the
holders of stock of the Corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such holders unless such action
is recommended by all directors of the Corporation then in office; provided, however, that, to the
extent expressly permitted by the certificate of designation relating to one or more series of
Preferred Stock, any action required or permitted to be taken by the holders of such series of
Preferred Stock, voting separately as a series or separately as a class with one or more other such
series, may be taken without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by the holders of
outstanding shares of the relevant class or series having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which all shares entitled
to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or to an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of stockholders are
recorded. Except as otherwise required by law and subject to the rights of the holders of any
series of Preferred Stock, special meetings of the stockholders of the Corporation may be called
only by or at the direction of the Board, the Chairman of the Board or the Chief Executive Officer
of the Corporation or, for so long as the Shareholders, collectively, continue to beneficially own
at least 40% of the total voting power of all the then outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors, the Sponsor Panel (as defined
in the Shareholders Agreement).
ARTICLE VIII
Section 8.1. Limited Liability of Directors. No director of the Corporation will have any personal liability to the Corporation or its
stockholders for monetary damages for any 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 hereafter may be
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amended. Neither the amendment nor the repeal of this Article VIII shall eliminate or reduce
the effect thereof in respect of any state of facts existing or act or omission occurring, or any
cause of action, suit or claim that, but for this Article VIII, would accrue or arise, prior to
such amendment or repeal.
ARTICLE IX
Section 9.1. Business Combinations. The Corporation hereby elects not to be governed
by Section 203 of the DGCL until such time no Shareholder, together with its affiliates, continues
to beneficially own at least 5% of the total voting power of all the then outstanding shares of
stock of the Corporation entitled to vote generally in the election of directors voting together as
a single class, whereupon the Corporation shall immediately and automatically, without further
action on the part of the Corporation or any holder of stock of the Corporation, become governed by
Section 203 of the DGCL.
ARTICLE X
Section 10.1. Certain Acknowledgment. In recognition and anticipation that: (i)
certain affiliates of non-employee directors may engage in the same or similar activities or
related lines of business as those in which the Corporation, directly or indirectly, may engage
and/or other business activities that overlap with or compete with those in which the Corporation,
directly or indirectly, may engage, and (ii) the Corporation and its subsidiaries may engage in
material business transactions with affiliates of non-employee directors of the Corporation, the
provisions of this Article X are set forth to regulate and define the conduct of certain affairs of
the Corporation with respect to certain classes or categories of business opportunities as they may
involve one or more of the Corporations non-employee directors, and the powers, rights, duties and
liabilities of the Corporation and its officers, directors and stockholders in connection
therewith.
Section 10.2. Competition and Corporate Opportunities. The Corporations non-employee
directors and their affiliates shall not have any duty to refrain from engaging directly or
indirectly in the same or similar business activities or lines of business as the Corporation or
any of its subsidiaries. In the event that any of the Corporations non-employee directors or any
of their affiliates acquire knowledge of a potential transaction or matter which may be a corporate
opportunity for the director or any of his or her affiliates and the Corporation or any of its
subsidiaries, neither the Corporation nor any of its subsidiaries shall, to the fullest extent
permitted by law, have any expectancy in such corporate opportunity, and none of the Corporations
non-employee directors or their affiliates shall, to the fullest extent permitted by law, have any
duty to communicate or offer such corporate opportunity to the Corporation or any of its
subsidiaries and may pursue or acquire such corporate opportunity for itself or direct such
corporate opportunity to another person.
Section 10.3. Allocation of Corporate Opportunities. In the event that a non-employee
director of the Corporation acquires knowledge of a potential transaction or matter which may be a
corporate opportunity for the Corporation or any of its subsidiaries and such non-employee
director, neither the Corporation nor any of its subsidiaries shall, to the fullest extent
permitted by law, have any expectancy in such corporate opportunity unless such
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corporate opportunity is expressly offered to such person in his or her capacity as a director
of the Corporation.
Section 10.4. Certain Matters Deemed Not Corporate Opportunities. In addition to and
notwithstanding the foregoing provisions of this Article X, a corporate opportunity shall not be
deemed to belong to the Corporation if it is a business opportunity that the Corporation is not
financially able or contractually permitted or legally able to undertake, or that is, from its
nature, not in the line of the Corporations business or is of no practical advantage to it or that
is one in which the Corporation has no interest or reasonable expectancy.
Section 10.5. Renouncement. In connection with the foregoing, the Corporation
renounces any interest or expectancy in, or being offered an opportunity to participate in, the
business opportunities not allocated to the Corporation or deemed to belong to the Corporation as
set forth in Sections 10.3 and 10.4 of this Article X.
Section 10.6. Amendment of this Article. Notwithstanding anything to the contrary
elsewhere contained in this Amended and Restated Certificate of Incorporation and in addition to
any vote required by the DGCL, the affirmative vote of the shares held by Palladium Equity Partners
III, L.P. and Parallel 2005 Equity Fund, LP, together with their affiliates, shall be required to
alter, amend or repeal, or to adopt any provision inconsistent with, this Article X.
ARTICLE XI
Section 11.1. Severability. If any provision or provisions of this Amended and
Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as
applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of
such provisions in any other circumstance and of the remaining provisions of this Amended and
Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph
of this Amended and Restated Certificate of Incorporation containing any such provision held to be
invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby.
ARTICLE XII
Section 12.1. Forum. Unless the Corporation consents in writing to the selection of
an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and
exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation,
(ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer,
employee or agent of the Corporation to the Corporation or the Corporations stockholders, (iii)
any action asserting a claim arising pursuant to any provision of the DGCL, this Amended and
Restated Certificate of Incorporation (as it may be amended or restated) or the by-laws of the
Corporation or (iv) any action asserting a claim governed by the internal affairs doctrine, in each
such case subject to said Court of Chancery having personal jurisdiction over the indispensable
parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any
interest in shares of capital stock of the corporation shall be deemed to have notice of and
consented to the provisions of this Article XII.
* * *
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be signed by __________________, its _______________ this ____ day of _____ 2011.
REGIONAL MANAGEMENT CORP. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
[Signature page Amended and Restated Certificate of Incorporation]