Attached files
file | filename |
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S-1/A - S-1/A - Armstrong Energy, Inc. | c64870a4sv1za.htm |
EX-23.3 - EX-23.3 - Armstrong Energy, Inc. | c64870a4exv23w3.htm |
EX-99.2 - EX-99.2 - Armstrong Energy, Inc. | c64870a4exv99w2.htm |
EX-99.1 - EX-99.1 - Armstrong Energy, Inc. | c64870a4exv99w1.htm |
EX-23.2 - EX-23.2 - Armstrong Energy, Inc. | c64870a4exv23w2.htm |
EX-99.3 - EX-99.2 - Armstrong Energy, Inc. | c64870a4exv99w3.htm |
EX-10.61 - EX-10.61 - Armstrong Energy, Inc. | c64870a4exv10w61.htm |
EX-10.54 - EX-10.54 - Armstrong Energy, Inc. | c64870a4exv10w54.htm |
EX-10.45 - EX-10.45 - Armstrong Energy, Inc. | c64870a4exv10w45.htm |
EX-10.52 - EX-10.52 - Armstrong Energy, Inc. | c64870a4exv10w52.htm |
Exhibit 3.4
AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
ARMSTRONG ENERGY, INC.
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
ARMSTRONG ENERGY, INC.
Pursuant to Section 151 of The
General Corporation Law of Delaware
General Corporation Law of Delaware
Armstrong Energy, Inc., a Delaware corporation (the Corporation), does hereby certify that
pursuant to the authority expressly granted to and vested in the Board by the provisions of Article
Sixth of the Certificate of Incorporation of the Corporation (the Certificate of Incorporation),
and pursuant to Section 151 of the General Corporation Law of the State of Delaware, its Board of
Directors amended and restated the Certificate of Designation for the shares of Series A
Convertible Preferred Stock, par value $.01 per share, to read as follows:
Section 1. Number of Shares and Designation. |
This series of preferred stock shall be designated as Series A Convertible Preferred Stock
(the Convertible Preferred) and the number of shares which shall constitute such series shall be
300,000 shares, par value $.01 per share (the Shares), which number may be increased or decreased
(but not below the number thereof then outstanding plus the number required to fulfill the
Corporations obligations under options, rights or warrants or securities convertible into
Convertible Preferred, issued by the Corporation) from time to time by the Board. The Convertible
Preferred shall not be redeemable without the written consent of the holders thereof.
Section 2. Dividends. |
The holders of Convertible Preferred shall not be entitled to the payment of any dividends by
the Corporation.
Section 3. Liquidation. |
Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary (a Liquidation), each holder of Convertible Preferred shall be entitled to receive,
out of the assets of the Corporation available for distribution to stockholders, before any
distribution or payment is made upon any Junior Securities, an amount in cash equal to the
aggregate Liquidation Value of all Shares held by such holder. After payment to the holders of the
Convertible Preferred in full of the preferential amounts provided for in this Section 3, the
holders of Convertible Preferred shall have no right or claim to any of the remaining assets of the
Corporation. If upon any Liquidation the Corporations assets to be distributed among the holders
of the Convertible Preferred are insufficient to permit payment to such holders of the aggregate
amount which they are entitled to be paid under this Section 3, then the entire assets available to
be distributed to the Corporations stockholders shall be distributed pro rata among such holders
based upon the aggregate Liquidation Value of the Convertible Preferred held by each such holder.
Not less than 30 days prior to the payment date stated therein, the Corporation shall mail written
notice of any such Liquidation to each record holder of Convertible Preferred
as of a date at least three Business Days prior to the mailing of such notice, setting forth
in reasonable detail the amount of proceeds to be paid with respect to each share of Convertible
Preferred in connection with such Liquidation (assuming no conversion of Shares into Common Stock).
At any time prior to a Liquidation, the holders of Convertible Preferred shall be entitled to
convert their Shares into Common Stock in accordance with the provisions of Section 5 below.
Neither the consolidation or merger of the Corporation into or with any other entity or entities
(whether or not the Corporation is the surviving entity), nor the sale, conveyance, exchange or
transfer (for cash, securities or other consideration) by the Corporation of all or any part of its
assets, nor the reduction of the capital stock of the Corporation nor any other form of
recapitalization or reorganization affecting the Corporation shall be deemed to be a Liquidation
within the meaning of this Section 3.
Section 4. Voting Rights. |
4A. Voting Procedures. The holders of Convertible Preferred shall be entitled to
notice of all meetings of the Corporations stockholders in accordance with the Corporations
Bylaws. Each Share of Convertible Preferred shall have one (1) vote per Share.
4B. General Voting Rights. The holders of Convertible Preferred shall vote together
as a single class with the holders of the Common Stock as provided in Section 4A above on all
matters submitted to a vote of the holders of the Common Stock.
4C. Special Voting Rights. In addition to the voting rights provided in Section 4B
above and any voting rights provided by applicable law, so long as any Convertible Preferred
remains outstanding, the holders of a majority of the Convertible Preferred outstanding must
approve, voting separately as a class:
(i) any amendment to the Corporations Certificate of Incorporation (including any Certificate
of Designations) or Bylaws that would affect adversely the rights, preferences, privileges or
voting rights of holders of the Convertible Preferred or the terms of the Convertible Preferred;
(ii) any proposed issuance of capital stock of the Corporation that ranks pari passu or senior
to the Convertible Preferred, or any proposed issuance of Junior Securities which are required to
be redeemed by the Corporation at any time that any Shares of Convertible Preferred are
outstanding, whether upon the occurrence of certain events or otherwise; or
(iii) any increase in the number of authorized shares of capital stock of the Corporation,
except as specifically required in this Certificate of Designations.
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Section 5. Conversion. |
5A. Automatic Conversion.
(i) On the IPO Conversion Date, and provided that an Exit Transaction has not occurred, all of
the outstanding shares of Convertible Preferred on such date shall automatically and without
further action required by any Person, convert into that number of shares of Common Stock equal to
the quotient obtained by dividing (a) by (b), where (a) is the aggregate Liquidation Value
represented by all the Shares to be converted, and (b) is the IPO Price minus the Discount
Amount.
(ii) Upon the date that an Exit Transaction is consummated, and provided that an IPO
Conversion Date has not occurred, all of the outstanding shares of Convertible Preferred on such
date shall automatically and without further action required by any Person, convert into that
number of shares of Common Stock equal to the quotient obtained by dividing (a) by (b), where (a)
is the aggregate Liquidation Value represented by all the Shares to be converted, and (b) is the
Exit Price. Prior to the consummation of any Exit Transaction, the Corporation shall make
appropriate provisions to insure that each of the holders of Convertible Preferred shall thereafter
have the right to acquire and receive, in lieu of or in addition to (as the case may be) the shares
of Common Stock immediately theretofore acquirable and receivable upon the conversion of such
holders Convertible Preferred pursuant to this Section 5A(ii), such shares of stock, securities or
assets as such holder would have received in connection with such Exit Transaction if such holder
had converted its Convertible Preferred immediately prior to such Exit Transaction. The Corporation
shall not effect any Exit Transaction, unless prior to the consummation thereof, the successor
entity (if other than the Corporation) resulting from consolidation or merger or the Person
purchasing such assets assumes by written instrument, the obligation to deliver to each such holder
such shares of stock, securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to acquire. The provisions of this Section 5A(ii) shall not apply in the
event of a conversion of the Convertible Preferred pursuant to Section 5A hereof prior to the
consummation of the Exit Transaction.
5B. Conversion Procedure.
(i) At the time any conversion of Convertible Preferred pursuant to Section 5A has been
effected, the rights of the holder of the Shares converted as a holder of Convertible Preferred
shall cease and the Person or Persons in whose name or names any certificate or certificates for
shares of Conversion Stock are to be issued upon such conversion shall be deemed to have become the
holder or holders of record of the shares of Conversion Stock represented thereby.
(ii) As soon as practicable (but in any event within five Business Days) after the
certificates representing the Shares are actually surrendered for conversion during normal business
hours at the principal office of the Corporation, the Corporation shall deliver or cause to be
delivered to the record holder of the Shares converted:
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(a) unless in book entry form, a certificate or certificates representing the number of shares
of Conversion Stock issuable by reason of such conversion in such name or names and such
denomination or denominations as the converting holder has specified; and
(b) a certificate representing any Shares of Convertible Preferred which were represented by
the certificate or certificates delivered to the Corporation in connection with such conversion but
which were not converted;
(iii) The issuance or delivery of certificates for shares of Common Stock upon conversion of
Convertible Preferred shall be made without charge to the holders of such Convertible Preferred for
any issuance tax in respect thereof or other cost incurred by the Corporation in connection with
such conversion and the related issuance of shares of Conversion Stock; provided, however, that the
Corporation shall not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificate in a name other than that of the
holder of Shares converted.
(iv) The Corporation shall not close its books against the transfer of Convertible Preferred
or of Conversion Stock issued or issuable upon conversion of Convertible Preferred in any manner
which interferes in any material respect with the timely conversion of Convertible Preferred. The
Corporation shall assist and cooperate with any holder of Shares required to make any governmental
filings or obtain any governmental approval prior to or in connection with any conversion of Shares
hereunder (including, without limitation, making any filings required to be made by the
Corporation).
(v) The Corporation shall at all times reserve and keep available out of its authorized but
unissued shares of Common Stock, solely for the purpose of issuance upon the conversion of the
Convertible Preferred, such number of shares of Common Stock issuable upon the conversion of all
outstanding Convertible Preferred. All shares of Common Stock which are so issuable shall be free
of preemptive rights and, when issued, be duly and validly issued, fully paid and nonassessable and
free from all taxes (other than income taxes payable by the holder), liens, charges and
encumbrances created by, through or under the Corporation. The Corporation shall not take any
action which would cause the number of authorized but unissued shares of Common Stock to be less
than the number of such shares required to be reserved hereunder for issuance upon conversion of
the Convertible Preferred.
(vi) The Corporation shall not be required to issue fractional shares of stock upon the
conversion of the Convertible Preferred. As to any final fraction of a share which the holder of
one or more shares of Convertible Preferred would otherwise be entitled to receive upon conversion,
the Corporation shall, in lieu of issuing any fractional share, the fraction will be rounded up or
down to the nearest whole number of shares.
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5C. Notices.
(i) The Corporation shall give written notice to all holders of Convertible Preferred of any
conversion of the Convertible Preferred pursuant to Section 5A hereof within five Business Days
after the effective date of such conversion.
(ii) The Corporation shall give written notice to all holders of Convertible Preferred at
least 15 days prior to the date on which the Corporation closes its books or takes a record (a)
with respect to any dividend or distribution upon Common Stock or (b) with respect to any pro rata
subscription offer to holders of Common Stock.
(iii) The Corporation shall also give written notice to the holders of Convertible Preferred
at least 20 days prior to the date on which any Exit Transaction shall take place.
Section 6. Purchase Rights. |
If at any time the Corporation grants, issues or sells any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property pro rata to the record holders of
any class of Common Stock (the Purchase Rights), then each holder of Convertible Preferred shall
be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase
Rights which such holder could have acquired if such holder had held the number of shares of
Conversion Stock acquirable upon conversion of such holders Convertible Preferred immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights,
or if no such record is taken, the date as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
Section 7. Record Holders. |
The Corporation shall deem and treat the record holder of any Convertible Preferred as the
true and lawful owner thereof for all purposes, and the Corporation shall be affected by any notice
to the contrary.
Section 8. Definitions. |
Business Day means any day other than a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York City, New York are not required to be opened.
Common Stock means, collectively, the Corporations Common Stock, par value $.01 per
share (including any and all Conversion Stock) and any capital stock of any class of the
Corporation hereafter authorized which is not limited to a fixed sum or percentage of par or stated
value in respect to the rights of the holders thereof to participate in dividends or in the
distribution of assets upon any Liquidation of the Corporation.
Conversion Stock means shares of the Corporations Common Stock, provided that if
there is a change such that the securities issuable upon conversion of the Convertible Preferred
are issued by an entity other than the Corporation or there is a change in the type or class of
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securities so issuable, then the term Conversion Stock shall mean one share of the security
issuable upon conversion of the Convertible Preferred if such security is issuable in shares, or
shall mean the smallest unit in which such security is issuable if such security is not issuable in
shares.
Convertible Securities means any stock or securities directly or indirectly
convertible into or exchangeable for Common Stock.
Discount Amount means an amount determined by multiplying the IPO Price by a
percentage equal to the difference between (a) 100% and (b) the fraction, expressed as a
percentage, the numerator of which is $300,000,000 and the denominator of which is the IPO
Valuation Amount; provided, however, that if the IPO Valuation amount is $300,000,000 or less, the
Discount Amount shall be zero.
Exit Price means the price or value per share of Common Stock to be paid to the
Corporations stockholders by the Person or successor entity in an Exit Transaction, or if such
price or value is not readily ascertainable, a price determined in good faith by the Board, and in
each case, net of selling expenses.
Exit Transaction means the sale of all or substantially all of the assets of the
Corporation on a consolidated basis to an Person, (ii) a merger, reorganization or consolidation in
which the holders of the Corporations outstanding voting power immediately prior to such
transaction do not own a majority of the outstanding voting power of the surviving or resulting
entity immediately upon completion of such transaction, (iii) the sale of all or a majority of the
outstanding equity interests in the Corporation to an Person whether by share exchange or otherwise
or (iv) any other transaction or series of transactions in which, the owners of the Corporations
outstanding voting power prior to such transaction do not own at least a majority of the
outstanding voting power of the successor entity immediately upon completion of the transaction, in
each case which is effected in such a manner that the holders of Common Stock are entitled to
receive (either directly or upon subsequent liquidation or distribution) stock, securities or
assets with respect to or in exchange for Common Stock.
IPO means an initial public offering of shares of Common Stock of the Corporation to
the public in an underwritten offering pursuant to a registration statement under the Securities
Act or the securities laws of any other jurisdiction.
IPO Conversion Date means the date of the effectiveness of the IPO.
IPO Price means the initial public offering price per share, less any underwriting
discount per share, of Common Stock sold in the IPO, as reflected in the prospectus filed with the
SEC on or immediately prior to the IPO Conversion Date.
IPO Valuation Amount means an amount determined by multiplying the IPO Price by the
total number of shares of Common Stock issued and outstanding as of the date of the execution and
delivery of the underwriting agreement relating to the IPO, including the shares of Common Stock
issued in the IPO and assuming the conversion in full of the Convertible Preferred at the IPO Price
minus the Discount Amount.
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Junior Securities means any capital stock or other equity securities of the
Corporation other than the Convertible Preferred.
Liquidation Value of any Share as of any particular date shall be equal to $100.00.
Options means any rights, warrants or options to subscribe for or purchase Common
Stock or Convertible Securities.
Person means any individual, corporation, association, partnership, joint venture,
limited liability company, trust, estate, or other entity or organization, other than the
Corporation, any of its Subsidiaries, any employee benefit plan of the Corporation or any of its
Subsidiaries, or any entity holding shares of Common Stock for or pursuant to the terms of any such
plan.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended, or any successor
statute thereof, together with the rules and regulations promulgated thereunder.
Section 9. Amendment and Waiver. |
No amendment, modification or waiver shall be binding or effective with respect to any
provision of Sections 1 to 12 hereof without the prior written consent of the holders of two-thirds
of the Convertible Preferred outstanding at the time such action is taken.
Section 10. Notices. |
Except as otherwise expressly provided hereunder, all notices referred to herein shall be in
writing and shall be delivered by first class mail or by reputable overnight courier service,
charges prepaid, and shall be deemed to have been given when so mailed or sent (i) to the
Corporation (attention: Secretary) at its principal executive offices and (ii) to any holder of the
Convertible Preferred, at such holders address as it appears in the stock records of the
Corporation, or to such other address as the Corporation or holder, as the case may be, shall have
designated by notice similarly given.
Section 11. Acquired Shares. |
Any Shares of Convertible Preferred purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such
Shares shall upon their cancellation become authorized but unissued shares of preferred stock of
the Corporation and may be re-issued as part of a new series of preferred stock to be created by
resolution or resolutions of the Board, subject to the conditions and restrictions on issuance set
forth herein.
Section 12. Successors and Transferees. |
The provisions applicable to Shares of Convertible Preferred shall bind and inure to the
benefit of and be enforceable by the Corporation, the respective successors to the Corporation, and
by any record holder of Shares of Convertible Preferred.
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* * * *
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed
and attested this 6th day of March, 2012.
ARMSTRONG ENERGY, INC. |
||||
By: | /s/ Martin D. Wilson, President | |||
Name: Martin D. Wilson | ||||
Title: President | ||||
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