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THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JK ACQUISITION CORP.
(changing its name hereby to "Golden Gate Homes, Inc.")
The undersigned, Basil N. Argerson, hereby certifies that:
ONE: He is the duly elected and acting Senior Vice President of the
corporation.
TWO: The name of the corporation is JK Acquisition Corp. and the
corporation was originally incorporated on dateYear2005Day11Month5May 11, 2005,
pursuant to the General Corporation Law of the State of placeStateDelaware
under the name JK Acquisition Company.
THREE: The Certificate of Incorporation of the corporation shall be
amended and restated to read in full as follows:
I.
The name of the Corporation is Golden Gate Homes, Inc. (the
"Corporation").
II.
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of placeStateDelaware ("GCL").
III.
The address, including street, number, city and county, of the
registered office of the Corporation in the State of placeStateDelaware is
addressStreet1209 Orange Street, in the City of placeCityWilmington,
placeCityCounty of New Castle, StateDelaware PostalCode19801. The name of the
registered agent of the Corporation in the State of placeStateDelaware at such
address is The Corporation Trust Company.
IV.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares the Corporation is authorized to issue is six hundred and one million
(601,000,000) shares, six hundred million (600,000,000) shares of which shall be
Common Stock (the "Common Stock") and one million (1,000,000) shares of which
shall be Preferred Stock (the "Preferred Stock"). The Preferred Stock shall have
a par value of $0.0001 per share and the Common Stock shall have a par value of
$0.0001 per share.
B. The rights, preferences, privileges, restrictions and other matters
relating to the Preferred Stock and the Common Stock are as follows:
1. 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.
2. 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.
C. Upon the effectiveness of the filing with the Secretary of
State of Delaware of this Third Amended and Restated Certificate of
Incorporation adding this paragraph to the Corporation's certificate of
incorporation, each thirty-five (35) shares of Common Stock issued and
outstanding immediately prior to the filing of such Certificate of Amendment
as aforesaid shall be combined into one (1) share of validly issued, fully
paid and non-assessable Common Stock. As soon as practicable after such date,
the Corporation shall request holders of the Common Stock to be combined in
accordance with the preceding to surrender certificates representing their
Common Stock to the Corporation's authorized agent, and each such stockholder
shall receive upon such surrender one or more stock certificates to evidence and
represent the number of shares of Common Stock to which such stockholder is
entitled after the combination of shares provided for herein; provided,
however, that this Corporation shall not issue fractional shares of Common Stock
in connection with this combination, but all fractional shares that would
otherwise result shall be rounded up to one whole share of Common Stock.
V.
[INTENTIONALLY OMITTED]
VI.
The Corporation shall keep at its principal office a register for the
registration of the Preferred Stock and the Common Stock. Upon the surrender of
any certificate representing Preferred Stock or Common Stock at such place, the
Corporation shall, at the request of the record holder of such certificate,
execute and deliver (at the Corporation's expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number of
shares represented by the surrendered certificate. Each such new certificate
shall be registered in such name and shall represent such number of shares as is
requested by the holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate.
VII.
Upon receipt of evidence reasonably satisfactory to the Corporation (an
affidavit of the registered holder shall be satisfactory) of the ownership and
the loss, theft, destruction or mutilation of any certificate evidencing shares
of Preferred Stock or Common Stock, and in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation (provided that if the holder is a financial institution or other
institutional investor its own agreement shall be satisfactory), or in the case
of any such mutilation upon surrender of such certificate, the Corporation shall
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of shares of such class
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
VIII.
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
effecting the conversion of the shares of Preferred Stock, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Preferred Stock. If at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then-outstanding shares of Preferred Stock, the
Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
IX.
Any notice required by the provisions of this Article IX shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All notices to stockholders shall be
addressed to each holder of record at the address of such holder appearing on
the books of the Corporation.
X.
The Corporation will pay all documentary, excise and similar taxes or
governmental charges imposed by the Corporation upon the issuance of shares of
Common Stock upon conversion of shares of Preferred Stock, excluding any tax or
other charge imposed in connection with any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that in which the shares
of Preferred Stock so converted were registered.
XI.
The Corporation shall not amend its Certificate of Incorporation or
participate in any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, for the
purpose of avoiding or seeking to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation.
XII.
The Corporation is to have perpetual existence.
XIII.
A. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend or rescind the Bylaws.
B. 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.
C. 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 Bylaws
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
XIV.
The number of directors which shall constitute the whole Board of
Directors from time to time shall be fixed by, or in the manner provided in, the
Bylaws.
XV.
Election of directors at an annual or special meeting of stockholders
need not be by written ballot unless the Bylaws shall so provide.
XVI.
No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided that this Article XVI shall not eliminate or limit the liability of a
director (i) for any breach of such 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 the law, (iii)
under Section 174 of the General Corporation Law of the State of Delaware, or
(iv) for any transaction from which such director derived any improper personal
benefit. If the General Corporation Law of the State of placeStateDelaware 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 General Corporation Law of the State of placeStateDelaware as so amended. No
amendment to or repeal of this Article XVI shall adversely affect any right or
protection of any director of the Corporation existing at the time of such
amendment or repeal for or with respect to acts or omissions of such director
prior to such amendment or repeal.
XVII.
A. Any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, other than an action by or in
the right of the Corporation, by reason of the fact that he is or was a
director, officer, employee, trustee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee
trustee or agent of another corporation, partnership, joint venture, trust or
other enterprise, expressly including service as a director, officer or in a
similar position with any exchange, board of trade, clearing corporation or
similar institution on which the Corporation or any other corporation a majority
of the stock of which is owned directly or indirectly by the Corporation had
membership privileges at the relevant time during which any such position was
held, shall be indemnified by the Corporation against expenses including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; provided that funds paid or required to be paid to any
person as a result of the provisions of this Article XVII shall be returned to
the Corporation or reduced, as the case may be, to the extent that such person
receives funds pursuant to an indemnification from any other corporation or
organization. Any such person who could be indemnified pursuant to the preceding
sentence except for the fact that the subject action or suit is or was by or in
the right of the Corporation shall be indemnified by the Corporation against
expenses including attorneys' fees actually or reasonably incurred by him in
connection with the defense or settlement of such action or suit, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
B. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Article XVII.A above, or in defense of
any claim, issue or matter therein, he shall be indemnified by the Corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection therewith without the necessity of any action being taken by
the Corporation other than the determination, in good faith, that such defense
has been successful. In all other cases wherein such indemnification is provided
by this Article XVII, unless ordered by a court, indemnification shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct
specified in this Article XVII. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such quorum is
not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
holders of a majority of the shares of capital stock of the Corporation entitled
to vote thereon.
C. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful. Entry of a judgment by consent as part of
a settlement shall not be deemed a final adjudication of liability for
negligence or misconduct in the performance of duty, nor of any other issue or
matter.
D. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by the director, officer, employee
or agent involved to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation.
E. The indemnification hereby provided shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
F. By action of the Board of Directors, notwithstanding any interest of
the directors in the action, the Corporation may purchase and maintain
insurance, in such amounts as the Board of Directors deems appropriate, on
behalf of any person who is or was a director, owner, employee, trustee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee trustee or of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation shall have the power to indemnify him
against such liability under the provisions of this Article XVII.
XVIII.
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.
XIX.
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.
* * *
FOUR: The foregoing Third Amended and Restated Certificate of Incorporation
has been duly adopted by the corporation's Board of Directors in accordance with
the provisions of Sections 228, 242 and 245 of the Delaware General Corporation
Law.
FIFTH: The foregoing Third Amended and Restated Certificate of
Incorporation has been duly adopted by the necessary number of shares of
outstanding stock of the corporation in accordance with the provisions of
Sections 228, 242 and 245 of the Delaware General Corporation Law.
SIXTH: The foregoing Third Amended and Restated Certificate of
Incorporation will become effective on dateYear2010Day8Month3March 8, 2010 at
timeMinute1Hour012:01 a.m. in accordance with the provision of Section 103(d) of
the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Third Amended and
Restated Certificate of Incorporation on dateYear2010Day26Month2February 26,
2010.
JK ACQUISITION CORP.
By:/s/ Basil N. Argerson
-------------------------
Basil N. Argerson,
Senior Vice President
