Attached files
| file | filename |
|---|---|
| S-1 - Formula Acquisition Corp. | v183119_s1.htm |
| EX-3.2 - Formula Acquisition Corp. | v183119_ex3-2.htm |
| EX-5.1 - Formula Acquisition Corp. | v183119_ex5-1.htm |
| EX-4.1 - Formula Acquisition Corp. | v183119_ex4-1.htm |
| EX-23.1 - Formula Acquisition Corp. | v183119_ex23-1.htm |
| EX-10.1 - Formula Acquisition Corp. | v183119_ex10-1.htm |
| EX-3.1(I) - Formula Acquisition Corp. | v183119_ex3-1i.htm |
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
of
FORMULA
ACQUISITION CORP.
FORMULA ACQUISITION CORP., a
corporation existing under the laws of the state of Delaware (the “Corporation”) by its
Chief Executive Officer, hereby certifies as follows:
|
1.
|
The
Corporation’s Certificate of Incorporation (the “Certificate of
Incorporation”) was filed in the office of the Secretary of State
of Delaware on March 23, 2010.
|
|
2.
|
This
Amended and Restated Certificate of Incorporation restates, integrates and
amends the Certificate of
Incorporation.
|
|
3.
|
This
Amended and Restated Certificate of Incorporation was duly adopted on
[________], 2010 by joint written consent of the directors and
stockholders of the Corporation in accordance with the applicable
provisions of Sections 141(f), 228, 242 and 245 of the General Corporation
Law of the State of Delaware (the
“GCL”).
|
|
4.
|
The
text of the Certificate of Incorporation is hereby amended and restated to
read in full as follows:
|
FIRST: The
name of the corporation is: Formula Acquisition Corp. (the “Corporation”).
SECOND: The
address of the registered office of the Corporation in the State of Delaware is
615 South DuPont Highway, Dover, Delaware 19901, in the County of
Kent. The registered agent in charge thereof is National Corporate
Research, Ltd.
THIRD: Subject
to the immediately succeeding sentence, the purpose of the Corporation shall be
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 “GCL”). 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 which are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the Corporation;
provided, however, that in the event a Business Combination (as defined below)
is not consummated prior to the Termination Date (as defined below), then the
purposes of the Corporation shall automatically, with no action required by the
Board of Directors or the stockholders, on the Termination Date be limited to
effecting and implementing the dissolution and liquidation of the Corporation
and the taking of any other actions expressly required to be taken herein on or
after the Termination Date and the Corporation’s powers shall thereupon be
limited to those set forth in Section 278 of the GCL and as otherwise may be
necessary to implement the limited purposes of the Corporation as provided
herein. This Article Third may only be amended in connection with, and become
effective upon, the consummation of a Business Combination.
FOURTH: A.
The total number of shares of stock which the Corporation shall have authority
to issue is one hundred and one million (101,000,000) shares, which shall
consist of (i) one hundred million (100,000,000) shares of common stock, $0.0001
par value per share (the “Common Stock”); and
(ii) one million (1,000,000) shares of preferred stock, $0.0001 par value per
share (the “Preferred
Stock”).
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.
FIFTH: The
name and mailing address of the incorporator are as follows:
Kristin
J. Angelino, Esq.
c/o
Gersten Savage LLP
600
Lexington Avenue, 10th floor
New York,
NY 10022
SIXTH: The
Corporation’s existence shall terminate on [_______], 2012 (the “Termination
Date”). This provision may only be amended in connection with,
and become effective upon, the consummation of a Business
Combination. A proposal to so amend this section shall be submitted
to stockholders in connection with any proposed Business Combination pursuant to
Article Seventh (A) below.
SEVENTH: The
following provisions (A) through (E) shall apply during the period commencing
upon the filing of this Amended and Restated Certificate of Incorporation and
terminating upon the consummation of any Business Combination and may not be
amended during the Target Business Acquisition Period, as defined
below. A “Business Combination”
shall mean the acquisition by the Corporation, whether by merger, capital stock
exchange, asset or stock acquisition or other similar type of transaction, of an
operating business or businesses having collectively, a fair market value (as
calculated in accordance with the requirements set forth below) of at least 80%
of the Corporation’s net assets at the time of the acquisition (less the
deferred underwriting discount and commissions and taxes payable), provided,
that, any acquisition of multiple operating businesses shall occur
contemporaneously with one another (the “Target Business”).
The “Target Business
Acquisition Period” shall mean the period from the effectiveness of the
registration statement filed in connection with the Corporation’s initial public
offering (“IPO”) up to and
including the first to occur of (a) a Business Combination or (b) the
Termination Date. For purposes of this Article Seventh, fair market value shall
be determined by the Board of Directors based upon standards generally accepted
by the financial community, such as actual and potential sales, earnings and/or
cash flow, and book value. If the Board of Directors is not able to
independently determine that the Target Business has a sufficient fair market
value, or if a conflict of interest exists, the Corporation will obtain an
opinion from an unaffiliated, independent investment banking firm with respect
to the satisfaction of such criteria.
A. Immediately
after the Corporation’s IPO, the amount of the net offering proceeds received by
the Corporation in the IPO (including the proceeds of any exercise of the
underwriter’s over-allotment option) specified in the Corporation’s registration
statement on Form S-1 filed with the Securities and Exchange Commission (the
“Registration
Statement”) at the time it goes effective shall be deposited and
thereafter held in the Trust Fund (as defined below). Neither the Corporation
nor any officer, director or employee of the Corporation shall disburse any of
the proceeds held in the Trust Fund until the earlier of (i) a Business
Combination or (ii) the Termination Date, in each case in accordance with the
terms of the investment management trust agreement governing the Trust Fund;
provided, however, that
(x) up to the amount, as set forth in the Registration Statement of the interest
earned on the Trust Fund may be released to the Corporation to cover operating
expenses, and (y) the Corporation shall be entitled to withdraw such amounts
from the Trust Fund as would be required to pay its tax
obligations.
B. Prior
to the consummation of any Business Combination, the Corporation shall submit
such Business Combination to its stockholders for approval regardless of whether
the Business Combination is of a type which normally would require such
stockholder approval under the GCL. In the event that a majority of the IPO
Shares (defined below) present and entitled to vote at the meeting to approve
the Business Combination are voted for the approval of such Business
Combination, the Corporation shall be authorized to consummate the Business
Combination; provided that the Corporation shall not consummate any Business
Combination if the holders of 30% or more of the IPO Shares exercise their
conversion rights described in paragraph (C) below.
C. In
the event that a Business Combination is approved in accordance with paragraph
(B) above and is consummated by the Corporation, any stockholder of the
Corporation holding shares of Common Stock issued in the IPO (“IPO Shares”) who
voted against the Business Combination may, contemporaneously with such vote,
demand that the Corporation convert his IPO Shares into cash. If so demanded,
the Corporation shall, promptly after consummation of the Business Combination,
convert such shares into cash at a per share conversion price equal to the
quotient determined by dividing (i) the amount in the Trust Fund (as defined
below), inclusive of any interest thereon and net of taxes payable, calculated
as of two business days prior to the consummation of the Business Combination,
by (ii) the total number of IPO Shares. “Trust Fund” shall
mean the trust account established by the Corporation at the consummation of its
IPO and into which a certain amount of the net proceeds of the IPO is
deposited.
D. In
the event that the Corporation does not consummate a Business Combination by the
Termination Date, the officers of the Corporation shall take all such action
necessary to liquidate the Corporation as soon as reasonably practicable. In the
event that the Corporation is so liquidated, only the holders of IPO Shares
shall be entitled to receive liquidating distributions and the Corporation shall
pay no liquidating distributions with respect to any other shares of capital
stock of the Corporation.
E. A
holder of IPO Shares shall be entitled to receive distributions from the Trust
Fund only in the event (i) he demands conversion of his shares in accordance
with paragraph (C) above, or (ii) the liquidation of the Corporation. In no
other circumstances shall a holder of IPO Shares have any right or interest of
any kind in or to the Trust Fund. A holder of securities issued in the private
placement prior to the consummation of the IPO shall not have any right or
interest of any kind in or to the Trust Fund.
EIGHTH: 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:
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.
NINTH: 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.
TENTH: 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
the GCL or on the application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under Section 279 of the GCL 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.
IN WITNESS WHEREOF, the
undersigned has executed this Amended and Restated Certificate of Incorporation
as of the [_____] day of [__________], 2010.
|
FORMULA ACQUISITION
CORP.
|
||
|
By:
|
||
|
Thomas
J. Clarke, Jr.
|
||
|
Chief
Executive Officer
|
||