Attached files
| file | filename |
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| S-1/A - SMG Industries Inc. | v187047_s1a.htm |
| EX-4.2 - SMG Industries Inc. | v187047_ex4-2.htm |
| EX-1.1 - SMG Industries Inc. | v187047_ex1-1.htm |
| EX-4.4 - SMG Industries Inc. | v187047_ex4-4.htm |
| EX-4.1 - SMG Industries Inc. | v187047_ex4-1.htm |
| EX-4.3 - SMG Industries Inc. | v187047_ex4-3.htm |
| EX-4.5 - SMG Industries Inc. | v187047_ex4-5.htm |
| EX-5.1 - SMG Industries Inc. | v187047_ex5-1.htm |
| EX-23.1 - SMG Industries Inc. | v187047_ex23-1.htm |
| EX-10.1 - SMG Industries Inc. | v187047_ex10-1.htm |
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
SMG
INDIUM RESOURCES, LTD.
SMG Indium Resources, Ltd., a
corporation organized and existing under the General Corporation Law (“GCL”) of
the State of Delaware, DOES HEREBY CERTIFY:
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1.
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The
name of the corporation is SMG Indium Resources, Ltd. The date
of filing of its original Certificate of Incorporation with the Secretary
of State was January 7, 2008 under the name Specialty Metals Group Indium
Corp.
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2.
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A
Certificate of Amendment of the Certificate of Incorporation of the
Corporation was filed with the Secretary of State on April 1, 2008 and on
November 23, 2009, respectively.
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3.
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This
Amended and Restated Certificate of Incorporation of the Corporation has
been duly adopted in accordance with the provisions of Sections 228, 242
and 245 of the GCL by the directors and stockholders of the
Corporation.
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4.
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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.
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5.
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The
text of the Amended and Restated Certificate of Incorporation of the
Corporation is hereby amended and restated to read in its entirety as
follows:
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FIRST: The
name of the corporation is SMG Indium Resources, Ltd. (hereinafter sometimes
referred to as the “Corporation”)
SECOND: The name
and address of the registered office of the Corporation in the State of Delaware
is National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover, DE
19904, Kent County.
THIRD: The nature
of the business or purposes to be conducted or promoted by the Corporation is to
engage in any lawful act or activity for which corporations may be organized
under the GCL of the State of Delaware.
FOURTH: The total number of
shares of all classes of capital stock which the Corporation shall have the
authority to issue is 31,000,000 shares, consisting of 30,000,000 shares of
Common Stock with a par value of $.001 per share (the “Common Stock”) and
1,000,000 shares of Preferred Stock with a par value of $.001 per share (the
“Preferred Stock”).
A
description of the respective classes of stock and a statement of the
designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows:
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A.
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PREFERRED
STOCK
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The
Preferred Stock may be issued in one or more series at such time or times and
for such consideration or considerations as the Corporation’s Board of Directors
may determine. Each series of Preferred Stock shall be so designated
as to distinguish the shares thereof from the shares of all other series and
classes. Except as otherwise provided in this Certificate of
Incorporation, different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by
classes.
The Board
of Directors is expressly authorized to provide for the issuance of all or any
shares of the Preferred Stock in one or more series, each with such
designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and such
qualifications, limitations or restrictions thereof as shall be stated in the
resolution or resolutions adopted by the Board of Directors to create such
series, and a certificate of said resolution or resolutions shall be filed in
accordance with the General Corporation Law of the State of
Delaware. The authority of the Board of Directors with respect to
each such series shall include, without limitation of the foregoing, the right
to provide that the shares of each such series may: (i) have such
distinctive designation and consist of such number of shares; (ii) be
subject to redemption at such time or times and at such price or prices;
(iii) be entitled to the benefit of a retirement or sinking fund for the
redemption of such series on such terms and in such amounts; (iv) be
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series of stock; (v) be entitled to such rights upon the
voluntary or involuntary liquidation, dissolution or winding up of the affairs,
or upon any distribution of the assets of the Corporation in preference to, or
in such relation to, any other class or classes or any other series of stock;
(vi) be convertible into, or exchangeable for, shares of any other class or
classes or any other series of stock at such price or prices or at such rates of
exchange and with such adjustments, if any; (vii) be entitled to the
benefit of such conditions, limitations or restrictions, if any, on the creation
of indebtedness, the issuance of additional shares of such series or shares of
any other series of Preferred Stock, the amendment of this Certification of
Incorporation or the Corporation’s By-Laws, the payment of dividends or the
making of other distributions on, or the purchase, redemption or other
acquisition by the Corporation of, any other class or classes or series of
stock, or any other corporate action; or (viii) be entitled to such other
preferences, powers, qualifications, rights and privileges, all as the Board of
Directors may deem advisable and as are not inconsistent with law and the
provisions of this Certificate of Incorporation.
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B.
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COMMON
STOCK
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1. Relative Rights of Preferred
Stock and Common Stock. All preferences, voting powers,
relative, participating, optional or other special rights and privileges, and
qualifications, limitations, or restrictions of the Common Stock are expressly
made subject and subordinate to those that may be fixed with respect to any
shares of the Preferred Stock.
2. Voting
Rights. Except as otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by him of record on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of stockholders of the Corporation.
3. Dividends. Subject
to the preferential rights of the Preferred Stock, if any, the holders of shares
of Common Stock shall be entitled to receive, when and if declared by the Board
of Directors, out of the assets of the Corporation which are by law available
therefor, dividends payable either in cash, in property or in shares of capital
stock.
4. Dissolution, Liquidation or
Winding Up. In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of shares of the
Preferred Stock, holders of Common Stock shall be entitled, unless otherwise
provided by law or this Certificate of Incorporation, to receive all of the
remaining assets of the Corporation of whatever kind available for distribution
to stockholders ratably in proportion to the number of shares of Common Stock
held by them respectively.
FIFTH. The
Corporation is to have perpetual existence.
SIXTH.
In furtherance and not in limitation of the powers conferred by the laws of the
State of Delaware:
A. The
Board of Directors of the Corporation is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
B. Elections
of directors need not be by written ballot unless the By-Laws of the Corporation
shall so provide.
C. The
books of the Corporation may be kept at such place within or without the State
of Delaware as the By-Laws of the Corporation may provide or as may be
designated from time to time by the Board of Directors of the
Corporation.
SEVENTH. 1.
Elimination of
Personal Liability. The Corporation eliminates
the personal liability of each member of its Board of Directors to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that, to the extent provided by
applicable law, the foregoing shall not eliminate 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 law, (iii) under
Section 174 of Title 8 of the Delaware Code or (iv) for any
transaction from which such director derived an improper personal
benefit.
If the Delaware General Corporation Law
is amended in the future 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 Delaware General Corporation Law, as so amended from time to
time.
Any repeal or modification of this
Article SEVENTH shall not increase the personal liability of any director of
this Corporation for any act or occurrence taking place prior to such repeal or
modification, or otherwise adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
2. (a) Right to
Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), by reason of the fact that he or she is or was a
director, officer or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans (hereinafter an
“indemnitee”), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys’ fees,
judgments, fines, taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith. Such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee’s heirs, executors and administrators; provided, however, that except
as provided in paragraph (b) hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred
in this Section shall be a contract right and shall include the right to be paid
by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an “advancement of expenses”);
provided, however, that, if the
Delaware General Corporation Law so requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
indemnitee, including without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this Section or otherwise (hereinafter an
“undertaking”).
(b) Right of Indemnitee to Bring
Suit. If a claim under paragraph (a) of this Section is
not paid in full by the Corporation within sixty days after a written claim has
been received by the Corporation, except in the case of a claim for advancement
of expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in
part in any such suit or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that the
indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law, and (ii) any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that the indemnitee has not met the applicable standard of conduct set forth in
the Delaware General Corporation Law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified or to such
advancement of expenses under this Section or otherwise shall be on the
Corporation.
(c) Non-Exclusivity of
Rights. The rights to indemnification and to the advancement
of expenses conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, this
Certificate of Incorporation, By-Law, contract or agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
(e) Indemnification of Employees
or Agents of the Corporation. The Corporation may, to the
extent authorized from time to time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses, to any agent of the
Corporation to the fullest extent of the provisions of this Section with respect
to the indemnification and advancement of expenses of directors, and officers of
the Corporation.
EIGHTH. The
Corporation reserves the right to amend or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute or otherwise as provided or subject to the rights granted
herein.
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
the provisions of 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 the provisions of 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 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.
TENTH. The name
and mailing address of the incorporator is:
Chris
E. Celano, Esq.
Ellenoff
Grossman & Schole LLP
370
Lexington Avenue, 19th
Floor
New
York, New York 10017
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.
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SMG
INDIUM RESOURCES, LTD.
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By:
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Name:
Ailon Z. Grushkin
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Title:
President
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