Attached files
file | filename |
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S-1/A - Crumbs Bake Shop, Inc. | v183022_s1.htm |
EX-1.1 - Crumbs Bake Shop, Inc. | v183022_ex1-1.htm |
EX-4.4 - Crumbs Bake Shop, Inc. | v183022_ex4-4.htm |
EX-5.1 - Crumbs Bake Shop, Inc. | v183022_ex5-1.htm |
EX-10.1 - Crumbs Bake Shop, Inc. | v183022_ex10-1.htm |
EX-10.4 - Crumbs Bake Shop, Inc. | v183022_ex10-4.htm |
EX-10.5 - Crumbs Bake Shop, Inc. | v183022_ex10-5.htm |
EX-10.7 - Crumbs Bake Shop, Inc. | v183022_ex10-7.htm |
EX-14.1 - Crumbs Bake Shop, Inc. | v183022_ex14-1.htm |
EX-10.6 - Crumbs Bake Shop, Inc. | v183022_ex10-6.htm |
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION OF
57TH
STREET GENERAL ACQUISITION CORP.
57th
Street General Acquisition Corp., a Delaware corporation (the “Corporation”),
does hereby certify as follows:
1. The
name of the Corporation is 57th Street General Acquisition Corp. The date of
filing of its original Certificate of Incorporation with the Secretary of State
was October 29, 2009 under the name of 57th Street General Acquisition
Corp.
2. This
Amended and Restated Certificate of Incorporation (“Amended and Restated
Certificate of Incorporation”) of 57th Street General Acquisition Corp. has been
duly adopted in accordance with the provisions of Sections 228, 242 and 245 of
the Delaware General Corporation Law by the directors and stockholders of the
Corporation.
3. This
Amended and Restated Certificate of Incorporation shall be effective on the date
of filing with the Secretary of State of the State of Delaware.
4. The
text of the Certificate of Incorporation of the Corporation is hereby amended
and restated to read in its entirety as follows:
FIRST:
The name of the corporation is 57th Street General Acquisition Corp.
(hereinafter sometimes referred to as the “Corporation”).
SECOND:
The address of the Corporation’s registered office in the State of Delaware is
National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover,
Delaware 19904, County of Kent. The name of the Corporation’s registered agent
at such address is National Registered Agents, Inc.
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
Delaware General Corporation Law (“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 Transaction (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 (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 not be amended prior to the consummation of a Business
Transaction.
FOURTH:
The total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is 101,000,000, of which 100,000,000 shares shall
be common stock, par value $0.0001 per share (the “Common Stock”), and 1,000,000
shares shall be preferred stock, par value $0.0001 per share (the “Preferred
Stock”).
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.
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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Asim
Grabowski-Shaikh
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Address:
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c/o
Ellenoff Grossman & Schole LLP
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150
East 42nd
Street
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New
York, NY 10017
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SIXTH:
The following provisions (A) through (K) 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
Transaction” and may not be amended prior to the consummation of any Business
Transaction unless at least sixty-five (65%) percent of the Corporation’s
outstanding shares of Common Stock are voted in favor of such amendment. A
“Business Transaction” shall mean the initial acquisition by the Corporation,
whether through a merger, capital stock exchange, asset acquisition, stock
purchase, reorganization, exchangeable share transaction or other similar
business transaction, of one or more operating businesses or
assets.
A.
Immediately after the Corporation’s initial public offering (the “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 (the
“Registration Statement”) filed with the Securities and Exchange Commission (the
“Commission”) shall be deposited and thereafter held in a trust account
established by the Corporation (the “Trust Account”). Neither the Corporation
nor any officer, director or employee of the Corporation shall disburse any of
the proceeds held in the Trust Account until the earlier of (i) a Business
Transaction or (ii) the Termination Date, in each case in accordance with the
terms of the investment management trust agreement (the “Trust Agreement”)
governing the Trust Account; provided, however, the Corporation shall be
entitled to withdraw such amounts from the Trust Account representing interest
earned on the amounts in the Trust Account as are required to pay any
taxes.
B. Prior
to the consummation of a Business Transaction, the Corporation shall provide all
holders of its Common Stock with the opportunity to redeem their shares of
Common Stock, effective upon consummation of the Business Transaction, for cash
equal to the redemption price specified below. The Corporation shall conduct
such redemptions either (i) through a tender offer pursuant to the tender offer
rules promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) or (ii) in conjunction with a stockholder vote and the
solicitation of proxies pursuant to the proxy rules promulgated under the
Exchange Act. If the Corporation conducts the redemption pursuant to the tender
offer rules, the redemption price payable per share of Common Stock shall be
equal to the amount held in the Trust Account as of the commencement of the
tender offer plus interest accrued until two business days prior to the
consummation of the Business Transaction, less taxes payable, divided by the
total number of shares of Common Stock sold as part of the units in the
Corporation’s IPO (the “IPO Shares”). If the Corporation conducts the redemption
in conjunction with a stockholder vote, the redemption price payable per share
of Common Stock to holders of IPO Shares exercising their redemption rights and
voting (1) in favor of the Business Transaction will be equal to the amount held
in the Trust Account as of two business days prior to the consummation of the
Business Transaction, less taxes payable, divided by the total number of IPO
Shares and (2) against the Business Transaction will be equal to the amount held
in the Trust Account as of two business days prior to the consummation of the
Business Transaction, less the portion attributable to interest earned on the
amounts in the Trust Account and less taxes payable, divided by the total number
of IPO Shares. Whether the Corporation conducts the redemption pursuant to the
tender offer rules or in conjunction with a stockholder vote, the redemption
price shall in no event be less than $9.75 per share of Common Stock (or $9.74
per share of Common Stock if the underwriters’ over-allotment option is
exercised in full).
C. If the
Corporation conducts the redemptions through a tender offer: (i) the Corporation
shall file tender offer documents with the Commission which will contain
substantially the same financial and other information about the Business
Transaction and the redemption rights as is required under the proxy rules
promulgated under the Exchange Act in connection with the solicitation of
proxies, even if such information is not required under the tender offer rules
promulgated under the Exchange Act; and (ii) the Corporation shall not commence
any such tender offer unless all holders of shares of Common Stock other than
IPO Shares have irrevocably agreed in writing not to redeem such shares in the
tender offer. If the Corporation conducts the redemption in conjunction with a
stockholder vote and not though a tender offer, the Corporation shall not redeem
any shares of Common Stock other than IPO Shares.
D. A
holder of IPO Shares, together with any affiliate of his or any other person
with whom such holder is acting in concert or as a ‘‘group’’ (as defined under
Section 13 of the Exchange Act), will be restricted from redeeming more than an
aggregate of 10% of the IPO Shares; provided, however, that this restriction
shall not apply if the Corporation conducts the redemption through a tender
offer.
E. The
Corporation will consummate a Business Transaction only if holders of no more
than 88% of the IPO Shares redeem their shares of Common Stock and, solely if
the Corporation holds a stockholder vote in connection with such Business
Transaction, a majority of the outstanding shares of Common Stock voted are
voted in favor of the Business Transaction.
F. In the
event that the Corporation does not consummate a Business Transaction within
fifteen (15) months from the effective date of the Registration Statement (the
“Termination Date”), the Corporation shall (i) cease all operations except for
the purposes of winding up, (ii) as promptly as reasonably possible redeem 100%
of the IPO Shares for cash for a redemption price per share equal to the amount
held in the Trust Account, including the interest earned thereon, less taxes
payable, divided by the total number of IPO Shares (which redemption will
completely extinguish such holders’ rights as stockholders, including the right
to receive further liquidation distributions, if any), and (iii) as promptly as
reasonably possible following such redemption, subject to approval of the
Corporation’s then stockholders and subject to the requirements of the GCL,
including the adoption of a resolution by the Board pursuant to Section 275(a)
of the GCL finding the dissolution of the Corporation advisable and the
provision of such notices as are required by said Section 275(a) of the GCL,
dissolve and liquidate the balance of the Corporation’s net assets to its
remaining stockholders, as part of the Corporation’s plan of dissolution and
liquidation. If, after the redemption of the IPO Shares and/or dissolution and
liquidation, the Corporation receives any refund of income taxes that were paid
from the Trust Account, the amount of such refund shall be distributed to the
former holders of IPO Shares.
G. A
holder of IPO Shares shall be entitled to receive funds from the Trust Account
only in the event (i) of a liquidation of the Trust Account to holders of IPO
Shares pursuant to the terms of the Trust Agreement; (ii) such holder exercises
its redemption rights in accordance with Article 6B above, or (iii) the
Corporation redeems the IPO Shares or liquidates in accordance with Article 6F
above). In no other circumstances shall a holder of IPO Shares have any right or
interest of any kind in or to the Trust Account, and no stockholder other than a
holder of IPO Shares shall have any interest in or to the Trust
Account.
H. The
Board of Directors shall be divided into two classes: Class A and
Class B. The number of directors in each class shall be as nearly equal as
possible. Prior to the IPO, there shall be elected three Class A directors
for a term expiring at the Corporation’s first Annual Meeting of Stockholders
and two Class B directors for a term expiring at the Corporation’s second
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 second 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 by-laws of the Corporation), 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.
I.. Prior
to the consummation of the Corporation’s Business Transaction, the Corporation
shall not issue any additional stock that participates in the proceeds of the
Trust Account, or that votes as a class with the IPO Shares, if the Corporation
seeks stockholder approval of a Business Transaction.
J. The
Corporation may not enter into any transaction with any affiliate of the
Corporation without the prior approval by a majority of the members of its board
of directors who do not have an interest in the transaction who had access, at
the Corporation’s expense, to the Corporation’s attorneys or independent legal
counsel, and unless the Corporation’s disinterested directors determine that the
terms of such transaction are no less favorable to it than those that would be
available to the Corporation with respect to such a transaction from
unaffiliated third parties.
K. In the
event the Corporation enters into a Business Transaction with a target business
that is affiliated with 57th Street
GAC Holdings, LLC, or the directors or officers of the Corporation, the
Corporation will obtain an opinion from an independent investment banking firm
that is a member of Financial Industry Regulatory Authority that such Business
Transaction is fair to the Corporation’s stockholders from a financial point of
view.
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:
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.
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 Amended and Restated 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 any breach of fiduciary
duty by such director 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.
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 GCL 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 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 Corporation has caused this Amended and Restated
Certificate of Incorporation to be duly executed on its behalf by an authorized
officer on this _____th day of ___________, 2010.
57TH
STREET GENERAL ACQUISITION CORP.
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By:
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Name:
Mark D. Klein
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Title:
Chief Executive Officer
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