Attached files
| file | filename |
|---|---|
| 8-K - AFH HOLDING II, INC. | v184030_8k.htm |
| EX-3.2 - AFH HOLDING II, INC. | v184030_ex3-2.htm |
| EX-2.1 - AFH HOLDING II, INC. | v184030_ex2-1.htm |
| EX-4.1 - AFH HOLDING II, INC. | v184030_ex4-1.htm |
| EX-10.3 - AFH HOLDING II, INC. | v184030_ex10-3.htm |
| EX-10.2 - AFH HOLDING II, INC. | v184030_ex10-2.htm |
| EX-10.4 - AFH HOLDING II, INC. | v184030_ex10-4.htm |
| EX-10.1 - AFH HOLDING II, INC. | v184030_ex10-1.htm |
| EX-10.5 - AFH HOLDING II, INC. | v184030_ex10-5.htm |
| EX-99.1 - AFH HOLDING II, INC. | v184030_ex99-1.htm |
| EX-23.1 - AFH HOLDING II, INC. | v184030_ex23-1.htm |
| EX-10.7 - AFH HOLDING II, INC. | v184030_ex10-7.htm |
| EX-21.1 - AFH HOLDING II, INC. | v184030_ex21-1.htm |
| EX-10.6 - AFH HOLDING II, INC. | v184030_ex10-6.htm |
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
AFH
HOLDING II, INC.
Pursuant
to Sections 242 and 245
of the
General Corporation Law of the State of Delaware
The
original Certificate of Incorporation of AFH HOLDING II, Inc. (the “Corporation”), originally
incorporated under the General Corporation Law of the State of Delaware (the
“DGCL”) under the name
AFH Holding II, Inc., was filed with the Secretary of State on April 16,
2007.
This
Amended and Restated Certificate of Incorporation, which amends and restates in
its entirety the Certificate of Incorporation of the Corporation, was duly
adopted by the written consent of the Board of Directors of the Corporation (the
“Board of Directors”)
and by the written consent of the holders of all of the outstanding stock
entitled to vote thereon in lieu of a duly convened meeting of stockholders in
accordance with the provisions of Sections 141(f), 228, 242 and 245 of the
DGCL.
FIRST: Name. The name of the
Corporation is:
First
Blush Brands, Inc.
SECOND: Registered Office and
Agent. The
address of the Corporation’s registered office in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington 19808, County of New
Castle. The name of its registered agent at such address is
Corporation Service Company.
THIRD: Purpose. The purpose of the
Corporation is to engage in any lawful act or activity for which a corporation
may be organized under the laws of the DGCL.
FOURTH: Authorized Capital
Stock. The total number of shares of capital stock which the
Corporation shall have authority to issue is one hundred twenty million
(120,000,000) shares, of which one hundred million (100,000,000) shares shall be
Common Stock, par value $0.001 per share (“Common Stock”), and twenty
million (20,000,000) shares shall be Preferred Stock, par value $0.001 per share
(“Preferred
Stock”).
(a) Common
Stock. Each holder of record of Common Stock shall have the
right to one vote for each share of Common Stock registered in their name on the
books of the Corporation on all matters submitted to a vote of stockholders
except as the right to exercise such vote may be limited by the provisions of
this Amended and Restated Certificate of Incorporation or of any class or series
of Preferred Stock established hereunder. The holders of Common Stock
shall be entitled to such dividends as may be declared by the Board of Directors
from time to time, provided that required dividends, if any, on the Preferred
Stock have been paid or provided for. In the event of the
liquidation, dissolution, or winding up, whether voluntary or involuntary of the
Corporation, the assets and funds of the Corporation available for distribution
to stockholders, and remaining after the payment to holders of Preferred Stock
of the amounts (if any) to which they are entitled, shall be divided and paid to
the holders of the Common Stock according to their respective
shares.
(b) Preferred Stock. The Preferred Stock may
be issued from time to time in one or more series. The Board of
Directors of the Corporation is hereby expressly authorized to provide, by
resolution or resolutions duly adopted by it prior to issuance, for the creation
of each such series and to fix the designation and the powers, preferences,
rights, qualifications, limitations and restrictions relating to the shares of
each such series. The authority of the Board of Directors with
respect to each series of Preferred Stock shall include, but not be limited to,
determining the following:
(i) the
designation of such series, the number of shares to constitute such series and
the stated value if different from the par value thereof;
(ii) whether
the shares of such series shall have voting rights, in addition to any voting
rights provided by law, and, if so, the terms of such voting rights, which may
be general or limited;
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(iii) the
dividends, if any, payable on such series, whether any such dividends shall be
cumulative, and, if so, from what dates, the conditions and dates upon which
such dividends shall be payable, and the preference or relation which such
dividends shall bear to the dividends payable on any shares of stock of any
other class or any other series of Preferred Stock;
(iv) whether
the shares of such series shall be subject to redemption by the Corporation,
and, if so, the times, prices and other conditions of such
redemption;
(v) the
amount or amounts payable upon shares of such series upon, and the rights of the
holders of such series in, the voluntary or involuntary liquidation, dissolution
or winding up, or upon any distribution of the assets, of the
Corporation;
(vi) whether
the shares of such series shall be subject to the operation of a retirement or
sinking fund and, if so, the extent to and manner in which any such retirement
or sinking fund shall be applied to the purchase or redemption of the shares of
such series for retirement or other corporate purposes and the terms and
provisions relating to the operation thereof;
(vii) whether
the shares of such series shall be convertible into, or exchangeable for, shares
of stock of any other class or any other series of Preferred Stock or any other
securities and, if so, the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
(viii) the
limitations and restrictions, if any, to be effective while any shares of such
series are outstanding upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or other acquisition by the
Corporation of, the Common Stock or shares of stock of any other class or any
other series of Preferred Stock;
(ix) the
conditions or restrictions, if any, upon the creation of indebtedness of the
Corporation or upon the issue of any additional stock, including additional
shares of such series or of any other series of Preferred Stock or of any other
class; and
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(x) any
other powers, preferences and relative, participating, optional and other
special rights, and any qualifications, limitations and restrictions,
thereof.
(xi) 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. All shares of any one series of Preferred
Stock shall be identical in all respects with all other shares of such series,
except that shares of any one series issued at different times may differ as to
the dates from which dividends thereof shall be cumulative.
FIFTH: Directors; Stockholder
Actions and Voting.
(a) The
number of directors comprising the Board of Directors shall be not less than one
nor more than 15 as may be determined from time to time by resolution adopted by
the Board of Directors of the Corporation.
(b) The
directors shall be elected by the holders of shares of capital stock of the
Corporation entitled to vote on the election of directors, and directors shall
be elected by a plurality vote.
(c) At
each annual meeting of stockholders, any vacancy in the Board of Directors may
be filled and the successors to the directors whose terms shall expire in that
year shall be elected to hold office for the term of one year. Each
director shall serve until the next annual meeting of stockholders or until his
or her successor is duly elected and qualified subject, however to prior death,
resignation, retirement, disqualification or removal from
office. Except in the case of an annual meeting of stockholders, any
vacancy occurring in the Board of Directors, including any vacancy created by
reason of an increase in the number of directors, shall be filled for the
unexpired term exclusively by the concurring vote of a majority of the directors
then in office, whether or not a quorum, and not by the stockholders, and any
director so chosen shall hold office until the next annual meeting of
stockholders and until such director’s successor shall have been duly elected
and qualified.
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(d) A director may be removed from office
at any time only for Cause (as defined herein) by the affirmative vote of the
holders of not less than two-thirds of the outstanding stock of the Corporation
entitled to vote, voting together as a single class, at a duly called and convened annual or
special meeting of stockholders. For purposes hereof, “Cause” shall mean (i) a final conviction of
a felony involving moral turpitude or (ii) willful misconduct that is materially
and demonstrably injurious economically to the Corporation. For
purposes of the foregoing definition of “Cause,” no act, or failure to act, by a
director shall be considered “willful” unless committed in bad faith and without
a reasonable belief that the act or failure to act was in the best interest of
the Corporation or any Affiliate of the Corporation. “Cause” shall not exist
unless and until the Corporation has delivered to the director a written notice
of the act or failure to act that constitutes “Cause” and, if cure is possible,
such director shall not have cured such act or omission within 90 days after the
delivery of such notice. As used in this Amended and Restated
Certificate of Incorporation, the term “Affiliate” has the meaning given such
term under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”).
(e) Unless
required by law or determined by the chairman of the meeting to be advisable,
the vote by stockholders on any matter, including the election of directors,
need not be by written ballot.
(f) At
any time when the Corporation has 20 or more record holders of stock, any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called and convened annual or special meeting of such holders
and may not be effected by any consent in writing in lieu of such a meeting by
such holders. Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the affirmative vote of the holders of not
less than two-thirds of the outstanding stock of the Corporation entitled to
vote, voting together as a single class, at a duly called and convened annual or
special meeting of stockholders shall be required to alter, amend, adopt
any provision inconsistent with or repeal this subparagraph
(f).
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(g) Notwithstanding
anything contained in this Amended and Restated Certificate of Incorporation to
the contrary, the affirmative
vote of the holders of not less than two-thirds of the outstanding stock of the
Corporation entitled to vote, voting together as a single class, at a duly called and convened annual or
special meeting of stockholders shall be required to alter, amend, adopt
any provision inconsistent with or repeal this subparagraph (g).
(h) Whenever
a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the 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 the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under § 291 of the
DGCLor on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under § 279 of the DGCL order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the 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 the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as 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 the Corporation, as the case may be, and also on the
Corporation.
SIXTH: Limitation of
Liability. No director of
the Corporation shall be personally liable to the Corporation or its
stockholders for any monetary damages for breaches of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (a) for any breach of the director’s duty of loyalty to
the Corporation or its stockholders; (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (c) under
Section 174 of the DGCL; or (d) for any transaction from which the director
derived an improper personal benefit. No repeal or amendment of this
Article shall adversely affect any rights of any person pursuant to this Article
which existed at the time of such repeal or amendment with respect to acts or
omissions occurring prior to such repeal or amendment.
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SEVENTH: Indemnification.
(a) Mandatory
Indemnification. The Corporation shall, to the fullest extent
permitted by applicable law, indemnify its directors and officers who were or
are a party or are threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (whether or not such action, suit or proceeding arises or arose by
or in the right of the Corporation or other entity) by reason of the fact that
such director or officer is or was a director or officer of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee, general partner, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise (including service with
respect to employee benefit plans), against expenses (including, but not limited
to, attorneys fees and costs), judgments, fines (including excise taxes assessed
on a person with respect to any employee benefit plan) and amounts paid in
settlement actually and reasonably incurred by such director or officer in
connection with such action, suit or proceeding, except as otherwise provided in
subparagraph (c) of this Article. A director or officer of the
Corporation entitled to indemnification under this subparagraph (a) is hereafter
called a “covered person.”
(b) Expenses. Expenses
incurred by a covered person in defending a threatened, pending or completed
civil or criminal action, suit or proceeding 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 person to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation, except as otherwise provided in subparagraph (c)
of this Article.
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(c) Exceptions. No
indemnification under subparagraph (a) hereof or advancement or reimbursement of
expenses under subparagraph (b) hereof shall be provided to a covered person (i)
with respect to expenses or the payment of profits arising from the purchase or
sale of securities of the Corporation in violation of Section 16(b) of the
Exchange Act; (ii) if a final unappealable judgment or award establishes that
such director or officer engaged in intentional misconduct or a transaction from
which the member, director or officer derived an improper personal benefit;
(iii) for expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, and amounts paid in settlement) which have been
paid directly to, or for the benefit of, such person by an insurance carrier
under a policy of officers’ and directors’ liability insurance paid for or
maintained by the Corporation or other person or entity; or (iv) for amounts
paid in settlement of any threatened, pending or completed action, suit or
proceeding without the written consent of the Corporation, which written consent
shall not be unreasonably withheld. The Board of Directors of the
Corporation is hereby authorized, at any time by resolution and without
stockholder approval, to add to the above list of exceptions from the right of
indemnification under subparagraph (a) hereof or advancement or reimbursement of
expenses under subparagraph (b) hereof, but any such additional exception shall
not apply with respect to any event, act or omission which has occurred prior to
the date that the Board of Directors in fact adopts such
resolution. Any such additional exception may, at any time after its
adoption, be amended, supplemented, waived or terminated by further resolution
of the Board of Directors of the Corporation.
(d) Continuation of
Rights. The indemnification and advancement or reimbursement
of expenses provided by, or granted pursuant to, this Article shall continue as
to a person who has ceased to be a director or officer of the Corporation, and
shall inure to the benefit of the heirs, executors and administrators of such
person.
(e) General
Provisions.
(i) The
term “to the fullest extent permitted by applicable law”, as used in this
Article, shall mean the maximum extent permitted by public policy, common law or
statute. Any covered person may, to the fullest extent permitted by
applicable law, elect to have the right to indemnification or to advancement or
reimbursement of expenses, interpreted, at such covered person’s option, (A) on
the basis of the applicable law on the date this Article, was approved by the
stockholders, or (B) on the basis of the applicable law in effect at the time of
the occurrence of the event, act or omission giving rise to the action, suit or
proceeding, or (C) on the basis of the applicable law in effect at the time
indemnification is sought.
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(ii) The
right of a covered person to be indemnified or to receive an advancement or
reimbursement of expenses pursuant to this Article: (A) may also be enforced as
a contract right pursuant to which the person entitled thereto may bring suit as
if the provisions hereof were set forth in a separate written contract between
the Corporation and such person, (B) to the fullest extent permitted by
applicable law, is intended to be retroactive and shall be available with
respect to events, acts or omissions occurring prior to the adoption hereof, and
(C) shall continue to exist after the rescission or restrictive modification (as
determined by such covered person) of this Article with respect to events, acts
or omissions occurring before such rescission or restrictive modification is
adopted.
(iii) If
a request for indemnification or for the advancement or reimbursement of
expenses pursuant hereto is not paid in full by the Corporation within thirty
days after a written claim has been received by the Corporation together with
all supporting information reasonably requested by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim (plus interest at the prime rate announced from time
to time by the Corporation’s primary lender) and, if successful in whole or in
part, the claimant shall be entitled also to be paid the expenses (including,
but not limited to, attorney’s fees and costs) of prosecuting such
claim. Neither the failure of the Corporation (including its Board of
Directors or independent legal counsel) to have made a determination prior to
the commencement of such action that indemnification of or the advancement or
reimbursement of expenses to the claimant is proper in the circumstances, nor an
actual determination by the Corporation (including its Board of Directors or
independent legal counsel) that the claimant is not entitled to indemnification
or to the reimbursement or advancement of expenses, shall be a defense to the
action or create a presumption that the claimant is not so
entitled.
(iv) The
indemnification and advancement or reimbursement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement or reimbursement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
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(v) Nothing
contained in this Article shall be construed to limit the rights and powers the
Corporation possesses under applicable provisions of the DGCL, or otherwise,
including, but not limited to, the powers to purchase and maintain insurance,
create funds to secure or insure its indemnification obligations, and any other
rights or powers the Corporation may otherwise have under applicable
law.
(vi) The
provisions of this Article may, at any time (and whether before or after there
is any basis for a claim for indemnification or for the advancement or
reimbursement of expenses pursuant hereto), be amended, supplemented, waived or
terminated, in whole or in part, with respect to any covered person covered by a
written agreement signed by the Corporation and such person.
(vii) The
Corporation shall have the right to appoint the attorney for a covered person,
provided such appointment is not unreasonable under the
circumstances.
(f) Optional
Indemnification. The Corporation may, to the fullest extent
permitted by applicable law, indemnify, and advance or reimburse expenses for,
persons in all situations other than that covered by this Article.
EIGHTH: Amendments to Certification
of Incorporation. The Corporation reserves
the right to increase or decrease its authorized capital stock, or any class or
series thereof, and to reclassify the same, and to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation under which the Corporation is organized or in any amendment
thereto, in the manner now or hereafter prescribed by law, and all rights
conferred upon stockholders in this Amended and Restated Certificate of
Incorporation or any amendment thereto are granted subject to the aforementioned
reservation.
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NINTH: Amendments to
By-laws. The Board of Directors shall have the power at any
time, and from time to time, to adopt, amend and repeal any and all By-laws of
the Corporation. Any amendment to, or repeal of, any provision of the
Bylaws of the Corporation which has not previously received the approval of the
Board of Directors shall require for adoption the affirmative vote of the
holders of not less than two-thirds of the outstanding stock of the Corporation
entitled to vote at a duly called and convened annual or special meeting of
stockholders, voting together as a single class, in addition to any other
approval which is required by law, this Amended and Restated Certificate of
Incorporation of the Corporation, the Bylaws of the Corporation, or
otherwise.
TENTH: DGCL Section
203. The Corporation expressly elects to be governed by
Section 203 of the DGCL; provided, that such election shall not apply to
restrict a business combination between the Corporation and any interested
stockholder (as defined in Section 203(c)(5) of the DGCL) of the Corporation if
the interested stockholder became an interested stockholder prior to the
effective date of the filing of this Amended and Restated Certificate of
Incorporation.
[Signature Page
Follows]
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IN WITNESS WHEREOF, the
Corporation has caused this Amended and Restated Certificate of Incorporation to
be signed by the officer of the Corporation named below, by and on behalf of the
Corporation.
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AFH
HOLDING II, Inc.
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By:
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/s/ Amir Heshmatpour
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Name:
Amir Heshmatpour
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Title: President
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