Attached files
file | filename |
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EX-4.3 - EX-4.3 - L&L Acquisition Corp. | b81977a3exv4w3.htm |
EX-4.4 - EX-4.4 - L&L Acquisition Corp. | b81977a3exv4w4.htm |
EX-10.4 - EX-10.4 - L&L Acquisition Corp. | b81977a3exv10w4.htm |
EX-10.3 - EX-10.3 - L&L Acquisition Corp. | b81977a3exv10w3.htm |
EX-10.7 - EX-10.7 - L&L Acquisition Corp. | b81977a3exv10w7.htm |
EX-10.5 - EX-10.5 - L&L Acquisition Corp. | b81977a3exv10w5.htm |
EX-23.1 - EX-23.1 - L&L Acquisition Corp. | b81977a3exv23w1.htm |
EX-10.10 - EX-10.10 - L&L Acquisition Corp. | b81977a3exv10w10.htm |
EX-10.11 - EX-10.11 - L&L Acquisition Corp. | b81977a3exv10w11.htm |
S-1/A - FORM S-1/A - L&L Acquisition Corp. | b81977a3sv1za.htm |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
L&L ACQUISITION CORP.
L&L ACQUISITION CORP.
L&L Acquisition Corp., a Delaware corporation (the Corporation), does hereby certify as
follows:
1. The name of the Corporation is L&L Acquisition Corp. The date of filing of its
original Certificate of Incorporation with the Secretary of State was July 26, 2010 under the name
of L&L Acquisition Corp.
2. This Amended and Restated Certificate of Incorporation (Amended and Restated
Certificate of Incorporation) of L&L 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 L&L Acquisition Corp. (hereinafter sometimes referred to
as the Corporation).
SECOND: The address of the Corporations registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle, 19801. The name of the
Corporations registered agent at such address is The Corporation Trust Company.
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
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 (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
Corporations 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 Combination.
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 Shares).
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 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 Combination and may not be amended prior to the consummation of any
Business Combination unless at least sixty-five (65%) percent of the Corporations outstanding
shares of Common Stock are voted in favor of such amendment. A Business Combination 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 Corporations 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 underwriters over-allotment option) specified in the Corporations 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 or a wholly-owned subsidiary of the Corporation
(the Subsidiary) (the Trust Account). Neither the Corporation nor any officer, director or
employee of the Corporation shall disburse, or cause or permit the
Subsidiary to disburse, any of the proceeds held in the Trust Account 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 (the Trust Agreement) governing the Trust
Account; provided, however, the Corporation or the Subsidiary 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 Combination, 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 Combination, 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
Combination, less taxes payable, divided by the total number of shares of Common Stock sold as part
of the units in the Corporations 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 Combination will be equal to the amount held in the Trust Account as of two business days
prior to the consummation of the Business Combination, less taxes payable, divided by the total number of IPO Shares and (2) against the
Business Combination will be equal to the amount held in the Trust Account as of two business days
prior to the consummation of the Business Combination, 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 $10.00
per share of Common Stock (or $10.00 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 Combination 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 Combination 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 Combination, a majority of the outstanding shares
of Common Stock voted are voted in favor of the Business Combination.
F. In the event that the Corporation does not consummate a Business Combination within
eighteen (18) months from the date of the closing of the IPO (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 Corporations 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 Corporations
net assets to its remaining stockholders, as part of the Corporations 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
Fifth, Section B above, or (iii) the Corporation redeems the IPO Shares or liquidates in accordance
with Article Fifth, Section F 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 Corporations first Annual Meeting of
Stockholders and two Class B directors for a term expiring at the Corporations 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 Corporations Business Combination, the Corporation shall
not issue any additional stock that participates in any manner 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
Combination.
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 Corporations expense, to the Corporations
attorneys or independent legal counsel, and unless the Corporations 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 Combination with a target business
that is affiliated with LLM Structured Equity Fund L.P., LLM Investors L.P., John L. Shermyen,
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 Combination is fair to the Corporations
stockholders from a financial point of view.
SIXTH: 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.
SEVENTH: 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 directors 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.
EIGHTH: 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 _____ day of
November, 2010.
L&L ACQUISITION CORP. |
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By: | ||||
Name: | John L. Shermyen | |||
Title: | Chief Executive Officer | |||