SX CERTIFICATE OF INCORPORATION

 

                                       OF

 

                                  ADAPTEC, INC.

 

 

                                   ARTICLE ONE

 

        The name of the Corporation is Adaptec, Inc. (the "Corporation").

 

                                   ARTICLE TWO

 

        The address of the Corporation's registered office in the State of

Delaware is Corporation Trust Center, 1209 Orange Street, in the City of

Wilmington, County of New Castle, zip code 19801. The name of its registered

agent at such address is The Corporation Trust Company.

 

                                  ARTICLE THREE

 

        The purpose of the Corporation is to engage in any lawful act or

activity for which corporations may be organized under the General Corporation

Law of Delaware.

 

                                  ARTICLE FOUR

 

        Part 1. Authorized Capital Stock. This Corporation is authorized to

issue two classes of shares of stock to be designated, respectively, "Common

Stock" and "Preferred Stock." The total number of shares which the Corporation

is authorized to issue is 401,000,000 shares consisting of:

 

               (i)  400,000,000 shares of Common Stock, $.001 per share par

value; and

 

               (ii) 1,000,000 shares of Preferred Stock, $.001 per share par

value of which Two-Hundred Fifty Thousand (250,000) shares have been designated

Series A Participating Preferred Stock.

 

        Part 2. Undesignated Preferred Stock. The Board of Directors is hereby

authorized, subject to limitations prescribed by the Corporation Law, to provide

for the issuance of the shares of undesignated Preferred Stock in one or more

series, and by filing a certificate pursuant to the Corporation Law, to

establish from time to time the number of shares to be included in each such

series, and to fix the designation, powers, preferences and rights of the shares

of each such series and the qualifications, limitations or restrictions thereof.

 

               The authority of the Board of Directors with respect to each

series of undesignated Preferred Stock shall include, but not be limited to,

determination of the following:

<PAGE>   2

 

               (i) the number of shares constituting that series and the

distinctive designation of that series;

 

               (ii) the dividend rate on the shares of that series, whether

dividends shall be cumulative, and if so, from which date or dates, and the

relative rights of priority, if any, of payment of dividends on shares of that

series;

 

               (iii) whether that series shall have voting rights in addition to

the voting rights provided by law, and if so, the terms of such voting rights;

 

               (iv) whether that series shall have conversion privileges, and if

so, the terms and conditions of such privileges, including provision for

adjustment of the conversion rate in such events as the Board of Directors shall

determine;

 

               (v) whether or not the shares of that series shall be redeemable,

and if so, the terms and conditions of such redemption, including the date or

dates upon or after which they shall be redeemable, and the amount per share

payable in case of redemption, which amount may vary under different conditions

and at different redemption rates;

 

               (vi) whether that series shall have a sinking fund for the

redemption or purchase of shares of that series, and if so, the terms in the

amount of such sinking funds;

 

               (vii) the rights of the shares of that series in the event of

voluntary or involuntary liquidation, dissolution or winding up of the

Corporation, and the relative rights of priority, if any, of payment of shares

of that series; and

 

               (viii) any other relative rights, preferences and limitations of

that series.

 

        Unless otherwise provided in the certificate establishing the

designation, powers, preferences, and rights of shares of Undesignated Preferred

Stock, the number of shares of any series of Undesig nated Preferred Stock may

be increased (but not above the total number of authorized shares of

Undesignated Preferred Stock) or decreased (but not below the number of shares

thereof then outstanding) by a certificate pursuant to the Corporation Law. In

case the number of shares of any series of Undesignated Preferred Stock shall be

decreased, the shares constituting such decrease shall resume the status which

they had prior to the adoption of the resolution originally fixing the number of

shares of such series of Undesignated Preferred Stock.

 

        Part 3. Series A Participating Preferred Stock. The Series A

Participating Preferred Stock shall have the following designations, powers,

preferences and relative and other special rights and qualifications,

limitations and restrictions:

 

               (i) Proportional Adjustment. In the event the Corporation shall

at any time after the issuance of any share or shares of Series A Participating

Preferred Stock (a) declare any dividend on Common Stock of the Corporation

("Common Stock") payable in shares of Common Stock, (b) subdivide the

outstanding Common Stock or (c) combine the outstanding Common Stock into a

smaller number of shares, then in each such case the Corporation shall

simultaneously effect a

 

                                      -2-

<PAGE>   3

 

 

 

proportional adjustment to the number of outstanding shares of Series A

Participating Preferred Stock.

 

               (ii) Dividends and Distributions.

 

                      (a) Subject to the prior and superior right of the holders

of any shares of any series of Preferred Stock ranking prior and superior to the

shares of Series A Participating Preferred Stock with respect to dividends, the

holders of shares of Series A Participating Preferred Stock shall be entitled to

receive when, as and if declared by the Board of Directors out of funds legally

available for the purpose, quarterly dividends payable in cash on the last day

of January, April, July and October in each year (each such date being referred

to herein as a "Quarterly Dividend Payment Date"), commencing on the first

Quarterly Dividend Payment Date after the first issuance of a share or fraction

of a share of Series A Participating Preferred Stock, in an amount per share

(rounded to the nearest cent) equal to 1,000 times the aggregate per share

amount of all cash dividends, and 1,000 times the aggregate per share amount

(payable in kind) of all non-cash dividends or other distributions other than a

dividend payable in shares of Common Stock or a subdivision of the outstanding

shares of Common Stock (by reclassification or otherwise), declared on the

Common Stock since the immediately preceding Quarterly Dividend Payment Date,

or, with respect to the first Quarterly Dividend Payment Date, since the first

issuance of any share or fraction of a share of Series A Participating Preferred

Stock.

 

                      (b) The Corporation shall declare a dividend or

distribution on the Series A Participating Preferred Stock as provided in

paragraph (a) above immediately after it declares a dividend or distribution on

the Common Stock (other than a dividend payable in shares of Common Stock).

 

                      (c) Dividends shall begin to accrue on outstanding shares

of Series A Participating Preferred Stock from the Quarterly Dividend Payment

Date next preceding the date of issue of such shares of Series A Participating

Preferred Stock, unless the date of issue of such shares is prior to the record

date for the first Quarterly Dividend Payment Date, in which case dividends on

such shares shall begin to accrue from the date of issue of such shares, or

unless the date of issue is a Quarterly Dividend Payment Date or is a date after

the record date for the determination of holders of shares of Series A

Participating Preferred Stock entitled to receive a quarterly dividend and

before such Quarterly Dividend Payment Date, in either of which events such

dividends shall begin to accrue from such Quarterly Dividend Payment Date.

Accrued but unpaid dividends shall not bear interest. Dividends paid on the

shares of Series A Participating Preferred Stock in an amount less than the

total amount of such dividends at the time accrued and payable on such shares

shall be allocated pro rata on a share-by-share basis among all such shares at

the time outstanding. The Board of Directors may fix a record date for the

determination of holders of shares of Series A Participating Preferred Stock

entitled to receive payment of a dividend or distribution declared thereon,

which record date shall be no more than 30 days prior to the date fixed for the

payment thereof.

 

 

                                      -3-

<PAGE>   4

 

               (iii) Voting Rights. The holders of shares of Series A

Participating Preferred Stock shall have the following voting rights:

 

                      (a) Each share of Series A Participating Preferred Stock

shall entitle the holder thereof to 1,000 votes on all matters submitted to a

vote of the stockholders of the Corporation.

 

                      (b) Except as otherwise provided herein or by law, the

holders of shares of Series A Participating Preferred Stock and the holders of

shares of Common Stock shall vote together as one class on all matters submitted

to a vote of stockholders of the Corporation.

 

                      (c) Except as required by law, holders of Series A

Participating Preferred Stock shall have no special voting rights and their

consent shall not be required (except to the extent they are entitled to vote

with holders of Common Stock as set forth herein) for taking any corporate

action.

 

               (iv) Certain Restrictions.

 

                      (a) The Corporation shall not declare any dividend on,

make any distribution on, or redeem or purchase or otherwise acquire for

consideration any shares of Common Stock after the first issuance of a share or

fraction of a share of Series A Participating Preferred Stock unless

concurrently therewith it shall declare a dividend on the Series A Participating

Preferred Stock as required by Section (ii) hereof.

 

                      (b) Whenever quarterly dividends or other dividends or

distributions payable on the Series A Participating Preferred Stock as provided

in Section (ii) are in arrears, thereafter and until all accrued and unpaid

dividends and distributions, whether or not declared, on shares of Series A

Participating Preferred Stock outstanding shall have been paid in full, the

Corporation shall not:

 

                             1. declare or pay dividends on, make any other

distributions on, or redeem or purchase or otherwise acquire for consideration

any shares of stock ranking junior (either as to dividends or upon liquidation,

dissolution or winding up) to the Series A Participating Preferred Stock;

 

                             2. declare or pay dividends on, make any other

distributions on any shares of stock ranking on a parity (either as to dividends

or upon liquidation, dissolution or winding up) with Series A Participating

Preferred Stock, except dividends paid ratably on the Series A Participating

Preferred Stock and all such parity stock on which dividends are payable or in

arrears in proportion to the total amounts to which the holders of all such

shares are then entitled;

 

                             3. redeem or purchase or otherwise acquire for

consideration shares of any stock ranking on a parity (either as to dividends or

upon liquidation, dissolution or winding up) with the Series A Participating

Preferred Stock, provided that the Corporation may at

 

                                      -4-

<PAGE>   5

 

 

any time redeem, purchase or otherwise acquire shares of any such parity stock

in exchange for shares of any stock of the Corporation ranking junior (either as

to dividends or upon dissolution, liquidation or winding up) to the Series A

Participating Preferred Stock;

 

                             4. purchase or otherwise acquire for consideration

any shares of Series A Participating Preferred Stock, or any shares of stock

ranking on a parity with the Series A Participating Preferred Stock, except in

accordance with a purchase offer made in writing or by publication (as

determined by the Board of Directors) to all holders of such shares upon such

terms as the Board of Directors, after consideration of the respective annual

dividend rates and other relative rights and preferences of the respective

series and classes, shall determine in good faith will result in fair and

equitable treatment among the respective series or classes.

 

                      (c) The Corporation shall not permit any subsidiary of the

Corporation to purchase or otherwise acquire for consideration any shares of

stock of the Corporation unless the Corporation could, under paragraph (a) of

this Section (iv), purchase or otherwise acquire such shares at such time and in

such manner.

 

               (v) Reacquired Shares. Any shares of Series A Participating

Preferred Stock purchased or otherwise acquired by the Corporation in any manner

whatsoever shall be retired and canceled promptly after the acquisition thereof.

All such shares shall upon their cancellation become authorized but unissued

shares of Preferred Stock and may be reissued as part of a new series of

Preferred Stock to be created by resolution or resolutions of the Board of

Directors, subject to the conditions and restrictions on issuance set forth

herein.

 

               (vi) Liquidation, Dissolution or Winding Up. Upon any

liquidation, dissolution or winding up of the Corporation, the holders of shares

of Series A Participating Preferred Stock shall be entitled to receive an

aggregate amount per share equal to 1,000 times the aggregate amount to be

distributed per share to holders of shares of Common Stock plus an amount equal

to any accrued and unpaid dividends on such shares of Series A Participating

Preferred Stock.

 

               (vii) Consolidation, Merger, etc. In case the Corporation shall

enter into any consolidation, merger, combination or other transaction in which

the shares of Common Stock are exchanged for or changed into other stock or

securities, cash and/or any other property, then in any such case the shares of

Series A Participating Preferred Stock shall at the same time be similarly

exchanged or changed in an amount per share equal to 1,000 times the aggregate

amount of stock, securities, cash and/or any other property (payable in kind),

as the case may be, into which or for which each share of Common Stock is

changed or exchanged.

 

               (viii) No Redemption. The shares of Series A Participating

Preferred Stock shall not be redeemable.

 

               (ix) Ranking. The Series A Participating Preferred Stock shall

rank junior to all other series of the Corporation's Preferred Stock as to the

payment of dividends and the distribution of assets, unless the terms of any

such series shall provide otherwise.

 

                                      -5-

<PAGE>   6

 

               (x) Amendment. The Certificate of Incorporation of the

Corporation shall not be further amended in any manner which would materially

alter or change the powers, preference or special rights of the Series A

Participating Preferred Stock so as to affect them adversely without the

affirmative vote of the holders of a majority of the outstanding shares of

Series A Participating Preferred Stock, voting separately as a class.

 

               (xi) Fractional Shares. Series A Participating Preferred Stock

may be issued in fractions of a share which shall entitle the holder, in

proportion to such holder's fractional shares, to exercise voting rights,

receive dividends, participate in distributions and to have the benefit of all

other rights of holders of Series A Participating Preferred Stock.

 

                                  ARTICLE FIVE

 

        The name and mailing address of the incorporator are as follows:

 

                      Wady H. Milner

                      Wilson Sonsini Goodrich & Rosati, Professional Corporation

                      650 Page Mill Road

                      Palo Alto, CA  94304

 

                                   ARTICLE SIX

 

        The Corporation is to have perpetual existence.

 

                                  ARTICLE SEVEN

 

        The election of directors need not be by written ballot except to the

extent provided in the Bylaws.

 

                                  ARTICLE EIGHT

 

        The number of directors which constitute the whole Board of Directors of

the Corporation shall be designated in the Bylaws of the Corporation.

 

                                  ARTICLE NINE

 

        In furtherance and not in limitation of the powers conferred by the laws

of the State of Delaware, the Board of Directors is expressly authorized to

adopt, alter, amend or repeal the Bylaws of the Corporation, but the

stockholders may make additional Bylaws and may alter or repeal any Bylaw

whether adopted by them or otherwise.

 

                                   ARTICLE TEN

 

                                      -6-

<PAGE>   7

 

        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 Delaware General Corporation

Law, or (iv) for any transaction from which the director derived any improper

personal benefit, and to the extent such exemption from liability or limitation

thereof is not permitted under the Delaware General Corporation Law as the same

exists or may hereafter be amended. If the Delaware General Corporation Law is

amended after the filing of this Certificate of Incorporation 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.

 

        Neither any amendment nor repeal of this Article, nor the adoption of

any provision of this Certificate of Incorporation inconsistent with this

Article, shall eliminate or reduce the effect of this Article in respect of any

matter occurring, or any cause of action, suit or claim that, but for this

Article, would accrue or arise, prior to such amendment, repeal or adoption of

an inconsistent provision.

 

                                 ARTICLE ELEVEN

 

        Except as otherwise provided herein, at the election of directors of the

Corporation, each holder of Common Stock shall be entitled to one vote for each

share held. No stockholder will be permitted to cumulate votes at any election

of directors.

 

                                 ARTICLE TWELVE

 

        Meetings of stockholders may be held within or without the State of

Delaware, as the Bylaws may provide. The books of the Corporation may be kept

(subject to any provision contained in the laws of the State of Delaware)

outside of the State of Delaware at such place or places as may be designated

from time to time by the Board of Directors or in the Bylaws of the Corporation.

 

                                ARTICLE THIRTEEN

 

        The Corporation reserves the right to amend, alter, change or repeal any

provision contained in this Certificate of Incorporation, in the manner now or

hereafter prescribed by the laws of the State of Delaware, and all rights

conferred herein are granted subject to this reservation.

 

 

 

 

 

 

                                      -7-

<PAGE>   8

 

        The undersigned incorporator hereby acknowledges that the foregoing

Certificate of Incorporation is her act and deed and that the facts stated

herein are true.

 

 

Dated:  November 19, 1997

 

 

                                                   -----------------------------

                                                   Wady H. Milner

                                                   Incorporator

 

 

 

 

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

ADPT CORPORATION

WITH AND INTO

ADAPTEC, INC.

(Pursuant to Section 253 of the General Corporation Law of Delaware)

Adaptec, Inc., a corporation organized and existing under the laws of Delaware (the “Corporation”) hereby certifies as follows:

FIRST: That the Corporation owns 100% of the outstanding shares of capital stock of ADPT Corporation, a Delaware corporation (the “Subsidiary”).

SECOND: The following resolutions providing for the merger of the Subsidiary with and into the Corporation were duly adopted on June 17, 2010:

WHEREAS, Adaptec, Inc. (the “Corporation”) owns 100% of the outstanding capital stock of ADPT Corporation, a Delaware corporation (“Subsidiary”);

WHEREAS, the Board of Directors of the Corporation (the “Board”) has determined that it is advisable, fair to and in the best interests of the Corporation to merge Subsidiary into the Corporation; and

WHEREAS, Section 253 of the General Corporation Law of the State of Delaware provides for the merger of a parent corporation and a subsidiary corporation to occur without a vote of the stockholders of the subsidiary corporation if the parent corporation owns at least 90% of the outstanding shares of each class of stock of the subsidiary corporation by executing, acknowledging and filing a Certificate of Ownership and Merger.

NOW, THEREFORE, BE IT:

RESOLVED, that the Board hereby authorizes the merger of Subsidiary with and into the Corporation, with the Corporation continuing as the surviving corporation (the “Merger”).

RESOLVED, that by virtue of the Merger and without any action on the part of any holder thereof, each then outstanding share of common stock of the Corporation shall remain unchanged and continue to remain outstanding as one share of common stock of the Corporation held by the person who was the holder of such share of common stock of the Corporation immediately prior to the Merger.


RESOLVED, that by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding share of capital stock of the Subsidiary shall be cancelled and no consideration shall be issued in respect thereof.

RESOLVED, that the certificate of incorporation of the Corporation as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation, except that Article ONE thereof shall be amended to read in its entirety as follows:

The name of the Corporation is ADPT Corporation (the “Corporation”).

RESOLVED, that the bylaws of the Corporation as in effect immediately prior to the effective time of the Merger shall be the bylaws of the surviving corporation.

RESOLVED, that the officers of the Corporation are authorized and directed to make, sign and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions to merge Subsidiary with and into the Corporation, and to cause the same to be filed with the Secretary of State of the State of Delaware and further to do all acts and things whatsoever and to incur such expenses, whether within or without the State of Delaware, which may be necessary or proper to effect the Merger and the foregoing resolutions.

THIRD: The Corporation shall be the surviving corporation in the Merger.

FOURTH: The certificate of incorporation of the Corporation as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation, except that Article ONE thereof shall be amended to read in its entirety as follows:

The name of the Corporation is ADPT Corporation (the “Corporation”)

FIFTH: The Merger shall become effective upon filing of the Certificate of Ownership and Merger with the Secretary of State of the State of Delaware.


IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by its duly authorized officer on this 21st day of June 2010.

 

ADAPTEC, INC.

By:

 

/s/ Mary L. Dotz

Name:

 

Mary L. Dotz

Title:

 

Chief Financial Officer

 

 

 

 

 

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

STEEL EXCEL INC.

WITH AND INTO

ADPT CORPORATION

 

(Pursuant to Section 253 of the General Corporation Law of Delaware)

 

ADPT Corporation, a corporation organized and existing under the laws of Delaware (the “Corporation”) hereby certifies as follows:

 

FIRST: That the Corporation owns 100% of the outstanding shares of capital stock of Steel Excel Inc., a Delaware corporation (the “Subsidiary”).

 

SECOND: By unanimous written consent of the Board of Directors of the Corporation dated September 20, 2011, the following resolutions providing for the merger of the Subsidiary with and into the Corporation were duly adopted:

 

WHEREAS, ADPT Corporation (the “Corporation”) owns 100% of the outstanding capital stock of Steel Excel Inc., a Delaware corporation (“Subsidiary”);

 

WHEREAS, the Board of Directors of the Corporation (the “Board”) has determined that it is advisable, fair to and in the best interests of the Corporation to merge Subsidiary into the Corporation; and

 

WHEREAS, Section 253 of the General Corporation Law of the State of Delaware provides for the merger of a parent corporation and a subsidiary corporation to occur without a vote of the stockholders of the subsidiary corporation if the parent corporation owns at least 90% of the outstanding shares of each class of stock of the subsidiary corporation by executing, acknowledging and filing a Certificate of Ownership and Merger.

 

NOW, THEREFORE, BE IT:

 

RESOLVED, that the Board hereby authorizes the merger of Subsidiary with and into the Corporation, with the Corporation continuing as the surviving corporation (the "Merger").

 

RESOLVED, that by virtue of the Merger and without any action on the part of any holder thereof, each then outstanding share of common stock of the Corporation shall remain unchanged and continue to remain outstanding as one share of common stock of the Corporation held by the person who was the holder of such share of common stock of the Corporation immediately prior to the Merger.

 

 

 


 

 

RESOLVED, that by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding share of capital stock of the Subsidiary shall be cancelled and no consideration shall be issued in respect thereof.

 

RESOLVED, that the certificate of incorporation of the Corporation as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation, except that Article ONE thereof shall be amended to read in its entirety as follows:

 

“The name of the Corporation is Steel Excel Inc. (the “Corporation”).”

 

RESOLVED, that the bylaws of the Corporation as in effect immediately prior to the effective time of the Merger shall be the bylaws of the surviving corporation.

 

RESOLVED, that the officers of the Corporation are authorized and directed to make, sign and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions to merge Subsidiary with and into the Corporation, and to cause the same to be filed with the Secretary of State of the State of Delaware and further to do all acts and things whatsoever and to incur such expenses, whether within or without the State of Delaware, which may be necessary or proper to effect the Merger and the foregoing resolutions.

 

THIRD: The Corporation shall be the surviving corporation in the Merger.

 

FOURTH: The certificate of incorporation of the Corporation as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation, except that Article ONE thereof shall be amended to read in its entirety as follows:

 

The name of the Corporation is Steel Excel Inc. (the “Corporation”)

 

FIFTH: This Certificate of Ownership and Merger (the “Certificate”) shall become effective at 7:02 P.M. Eastern Time on the date of filing of the Certificate with the Secretary of State of the State of Delaware.

 

 

 


 

 

IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by its duly authorized officer on this 3rd day of October 2011.

 

 

 

 

ADPT CORPORATION

 

 

 

 

 

 

 

 

 

 

 

By: 

/s/ John J. Quicke

 

 

 

 

Name: John J. Quicke

Title: Interim President and Chief Executive Officer

 

 

 

 

 

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

ADPT CORPORATION

 

ADPT Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),

 

DOES HEREBY CERTIFY:

 

FIRST: That resolutions were duly adopted by the Board of Directors of the Corporation setting forth this proposed Amendment to the Certificate of Incorporation of the Corporation and declaring said Amendment to be advisable and recommended for approval by the stockholders of the Corporation.

 

SECOND: Immediately upon the effectiveness of this Amendment to the Corporation’s Certificate of Incorporation (the “Effective Time”), each five hundred (500) shares of the Corporation’s Common Stock, par value $0.001 per share, issued and outstanding or held by the Corporation as treasury stock shall be converted into one (1) share of the Corporation’s Common Stock, par value $0.001 per share, as constituted following the Effective Time.

 

THIRD: To accomplish the foregoing Amendment to the Certificate of Incorporation of the Corporation, ARTICLE FOUR, Part 1 of the Certificate of Incorporation of the Corporation shall be amended and restated in its entirety as follows:

 

“Part 1. Authorized Capital Stock. (A) This Corporation is authorized to issue two classes of shares of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the Corporation is authorized to issue is 41,000,000 shares consisting of:

 

(i) 40,000,000 shares of Common Stock, $.001 per share par value; and

 

(ii) 1,000,000 shares of Preferred Stock, $.001 per share par value of which Two-Hundred Fifty Thousand (250,000) shares have been designated Series A Participating Preferred Stock.

 

(B) Effective as of the effectiveness of the amendment to this Certificate of Incorporation amending and restating this Part 1 to ARTICLE FOUR (this “Amendment”) and without regard to any other provision of this Certificate of Incorporation, each one (1) share of Common Stock, either issued or outstanding or held by the Corporation as treasury stock, immediately prior to the time this Amendment becomes effective shall be and is hereby automatically reclassified and changed (without any further act) into one-five hundredth (1/500th) of a fully paid and nonassessable share of Common Stock without increasing or decreasing the amount of stated capital or paid-in surplus of the Corporation, provided that no fractional shares shall be issued to any stockholder of record of fewer than 500 shares of Common Stock immediately prior to the time this Amendment becomes effective, and that instead of issuing such fractional shares to such holders, the Corporation’s transfer agent shall aggregate all such fractional shares and sell them as soon as practicable after the effective time of this Amendment at the then prevailing prices on the open market, on behalf of those stockholders who would otherwise be entitled to receive a fractional share. After the transfer agent’s completion of such sale, stockholders shall receive a cash payment from the transfer agent in an amount equal to their respective pro rata shares of the total net proceeds of that sale.”

 

 

 


 

 

FOURTH: That, pursuant to resolution of its Board of Directors, an annual meeting of the stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by applicable law was voted in favor of the Amendment.

 

FIFTH: That said Amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

SIXTH: That said Amendment shall be effective at 7:00 P.M. Eastern Time on the date of filing with the Secretary of State of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment of the Certificate of Incorporation to be executed on this 3rd day of October, 2011.

 

 

 

 

ADPT CORPORATION

 

 

 

 

 

 

 

 

 

 

 

By: 

/s/ John Quicke

 

 

 

 

Name: John Quicke

Title: Interim President and Chief Executive Officer

 

 

 

 

 

 

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

ADPT CORPORATION

 

ADPT Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),

 

DOES HEREBY CERTIFY:

 

FIRST: That resolutions were duly adopted by the Board of Directors of the Corporation setting forth this proposed Amendment to the Certificate of Incorporation of the Corporation and declaring said Amendment to be advisable and recommended for approval by the stockholders of the Corporation.

 

SECOND: Immediately upon the effectiveness of this Amendment to the Corporation’s Certificate of Incorporation (the “Effective Time”), each share of the Corporation’s Common Stock, par value $0.001 per share, issued and outstanding or held by the Corporation as treasury stock shall be converted into fifty (50) shares of the Corporation’s Common Stock, par value $0.001 per share, as constituted following the Effective Time.

 

THIRD: To accomplish the foregoing Amendment to the Certificate of Incorporation of the Corporation, the following paragraph is added immediately after ARTICLE FOUR, Part 1(B) of the Certificate of Incorporation of the Corporation:

 

“(C) Effective as of the effectiveness of the amendment to this Certificate of Incorporation adding Section (C) to ARTICLE FOUR, Part 1 (this “Amendment”) and without regard to any other provision of this Certificate of Incorporation, each share of Common Stock, either issued or outstanding or held by the Corporation as treasury stock immediately prior to the effectiveness of this Amendment, and any fractional share of Common Stock held by a stockholder who holds in excess of one (1) share of Common Stock immediately prior to the time this Amendment becomes effective shall and is hereby automatically reclassified and changed (without any further act) into fifty (50) fully-paid and nonassessable shares of Common Stock (or, with respect to fractional shares of Common Stock, such lesser number of shares of Common Stock and fractional shares as may be applicable based upon such 50 for 1 ratio), without increasing or decreasing the amount of stated capital or paid-in surplus of the Corporation, provided that no fractional shares of Common Stock shall be issued to any stockholder of record immediately following the time this Amendment becomes effective, and that instead of issuing such fractional shares to such holders, the Corporation’s transfer agent shall aggregate all such fractional shares and sell them as soon as practicable after the effectiveness of this Amendment at the then prevailing prices on the open market, on behalf of those stockholders who would otherwise be entitled to receive a fractional share. After the transfer agent’s completion of such sale, stockholders shall receive a cash payment from the transfer agent in an amount equal to their respective pro rata shares of the total net proceeds of that sale.”

 

 

 


 

 

FOURTH: That, pursuant to resolution of its Board of Directors, an annual meeting of the stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by applicable law was voted in favor of the Amendment.

 

FIFTH: That said Amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

SIXTH: That said Amendment shall be effective at 7:01 P.M. Eastern Time on the date of filing with the Secretary of State of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment of the Certificate of Incorporation to be executed on this 3rd day of October, 2011.

 

 

 

ADPT CORPORATION

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ John Quicke

 

 

 

 

Name: John Quicke

Title: Interim President and Chief Executive Officer

 

 

 

 

 

 

 

 

CERTIFICATE OF DESIGNATION

OF

SERIES B PARTICIPATING PREFERRED STOCK

OF

STEEL EXCEL INC.

 

Steel Excel Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), in accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware thereof, does hereby certify:

 

The board of directors of the Corporation (the “Board of Directors”) or a duly authorized committee of the Board of Directors, in accordance with the certificate of incorporation and bylaws of the Corporation and applicable law, adopted the following resolution on December 20, 2011, creating a series of preferred stock of the Corporation designated as “Series B Preferred Stock”.

 

RESOLVED, that pursuant to the provisions of the certificate of incorporation and the bylaws of the Corporation and applicable law, a series of preferred stock, par value $0.001 per share, of the Corporation be and hereby is created, and that the designation and number of shares of such series, and the voting and other powers, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions thereof, of the shares of such series, are as follows:

 

Section 1.                      Designation and Number of Shares.  The shares of such series shall be designated as “Series B Participating Preferred Stock” (the “Series B Preferred Stock”), and the number of shares constituting such series shall be 40,000.  Such number of shares of the Series B Preferred Stock may be increased or decreased by resolution of the Board of Directors; provided that no decrease shall reduce the number of shares of Series B Preferred Stock to a number less than the number of shares then outstanding plus the number of shares issuable upon exercise or conversion of outstanding rights, options or other securities issued by the Corporation.

 

Section 2.                      Dividends and Distributions.  (a) Subject to the prior and superior rights of the holders of any shares of any class or series of stock of the Corporation ranking prior and superior to the shares of Series B Preferred Stock with respect to dividends, the holders of shares of Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, regular quarterly dividends payable on such dates each year as designated by the Board of Directors (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of any share or fraction of a share of Series B Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the Multiplier Number times the aggregate per share amount of all cash dividends or other distributions and the Multiplier Number times the aggregate per share amount of all non-cash dividends or other distributions (other than (i) a dividend payable in shares of common stock, par value $0.001 per share, of the Corporation (the “Common Stock”) or (ii) a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise)), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series B Preferred Stock.  As used herein, the “Multiplier Number” shall be 1,000; provided that if, at any time after December 20, 2011, there shall be any change in the Common Stock, whether by reason of stock dividends, stock splits, reverse stock splits, recapitalization, mergers, consolidations, combinations or exchanges of securities, split-ups, split-offs, spin- offs, liquidations or other similar changes in capitalization, or any distribution or issuance of shares of its capital stock in a merger, share exchange, reclassification, or change of the outstanding shares of Common Stock, then in each such event the Board of Directors shall adjust the Multiplier Number to the extent appropriate such that following such adjustment each share of Series B Preferred Stock shall be in the same economic position as prior to such event.

 

(b)           The Corporation shall declare a dividend or distribution on the Series B Preferred Stock as provided in Section 2(a) immediately after it declares a dividend or distribution on the Common Stock (other than as described in Sections 2(a)(i) and 2(a)(ii)).

 

 

 


 

 

(c)           Dividends, to the extent payable as provided in Sections 2(a) and (b), shall begin to accrue and be cumulative on outstanding shares of Series B Preferred Stock from the Quarterly Dividend Payment Date immediately preceding the date of issuance of such shares of Series B Preferred Stock, unless the date of issuance of such shares is on or before the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue and be cumulative from the date of issue of such shares, or unless the date of issue is a date after the record date for the determination of holders of shares of Series B Preferred Stock entitled to receive a quarterly dividend and on or before such Quarterly Dividend Payment Date, in which case dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date.  Accrued but unpaid dividends shall not bear interest.  Dividends paid on shares of Series B Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding.  The Board of Directors may fix a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall not be more than 60 days prior to the date fixed for the payment thereof.

 

Section 3.                      Voting Rights.  In addition to any other voting rights required by law, the holders of shares of Series B Preferred Stock shall have the following voting rights:

 

(a)           Each share of Series B Preferred Stock shall entitle the holder thereof to a number of votes equal to the Multiplier Number on all matters submitted to a vote of stockholders of the Corporation.

 

(b)           Except as otherwise provided herein or by law, the holders of shares of Series B Preferred Stock and the holders of shares of Common Stock shall vote together as a single class on all matters submitted to a vote of stockholders of the Corporation.

 

(c)           The certificate of incorporation of the Corporation shall not be amended in any manner (whether by merger or otherwise) so as to adversely affect the powers, preferences or special rights of the Series B Preferred Stock without the affirmative vote of the holders of a majority of the outstanding shares of Series B Preferred Stock, voting separately as a class.

 

(d)           Except as otherwise expressly provided herein, holders of Series B Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.

 

Section 4.                      Certain Restrictions.  (a) Whenever quarterly dividends or other dividends or distributions payable on the Series B Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on outstanding shares of Series B Preferred Stock shall have been paid in full, the Corporation shall not:

 

(i)             declare or pay dividends on, or make any other distributions on, any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding-up) to the Series B Preferred Stock;

 

(ii)            declare or pay dividends on, or make any other distributions on, any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding-up) with the Series B Preferred Stock, except dividends paid ratably on the Series B Preferred Stock and all such other parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;

 

(iii)           redeem, purchase or otherwise acquire for value any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding-up) to the Series B Preferred Stock; provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of stock of the Corporation ranking junior (as to dividends and upon dissolution, liquidation or winding-up) to the Series B Preferred Stock; or

 

 

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(iv)           redeem, purchase or otherwise acquire for value any shares of Series B Preferred Stock, or any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding-up) with the Series B Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of Series B Preferred Stock and all such other parity stock upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.

 

(b)           The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for value any shares of stock of the Corporation unless the Corporation could, under paragraph 4(a), purchase or otherwise acquire such shares at such time and in such manner.

 

Section 5.                      Reacquired Shares.  Any shares of Series B Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired promptly after the acquisition thereof.  All such shares shall upon their retirement become authorized but unissued shares of Preferred Stock without designation as to series and may be reissued as part of a new series of Preferred Stock to be created by the Board of Directors as permitted by the certificate of incorporation of the Corporation or as otherwise permitted under Delaware law.

 

Section 6.                      Liquidation, Dissolution and Winding-up.  Upon any liquidation, dissolution or winding-up of the Corporation, no distribution shall be made (a) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding-up) to the Series B Preferred Stock unless, prior thereto, the holders of shares of Series B Preferred Stock shall have received $1.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment; provided that the holders of shares of Series B Preferred Stock shall be entitled to receive an aggregate amount per share equal to (x) the Multiplier Number times (y) the aggregate amount to be distributed per share to holders of Common Stock, or (b) to the holders of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding-up) with the Series B Preferred Stock, except distributions made ratably on the Series B Preferred Stock and all such other parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding-up.

 

Section 7.                      Consolidation, Merger, etc.  If the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash or any other property, then in any such case the shares of Series B Preferred Stock shall at the same time be similarly exchanged for or changed into an amount per share equal to (x) the Multiplier Number times (y) the aggregate amount of stock, securities, cash or any other property, as the case may be, into which or for which each share of Common Stock is changed or exchanged.

 

Section 8.                      No Redemption.  The Series B Preferred Stock shall not be redeemable.

 

Section 9.                      Rank.  The Series B Preferred Stock shall rank junior to all other series of the Preferred Stock as to the payment of dividends and the distribution of assets upon liquidation, dissolution and winding-up, unless the terms of such series shall specifically provide otherwise, and shall rank senior to the Common Stock as to such matters.

 

Section 10.                     Fractional Shares.  Series B Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series B Preferred Stock.

 

 

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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Designation this 21st day of December, 2011.

 

 

STEEL EXCEL INC.

By:          /s/ John Quicke                                                

Name: John Quicke

Title:   Interim President and Chief Executive Officer

 

 

 

 

 

 

 

 

CERTIFICATE OF AMENDMENT

TO

CERTIFICATE OF INCORPORATION

OF

STEEL EXCEL INC.

 

 

Steel Excel Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),

 

DOES HEREBY CERTIFY:

 

FIRST: That resolutions were duly adopted by the Board of Directors of the Corporation setting forth this proposed Amendment to the Certificate of Incorporation of the Corporation and declaring said Amendment to be advisable and recommended for approval by the stockholders of the Corporation.

 

SECOND: ARTICLE FOUR, Part 1(A) of the Certificate of Incorporation of the Corporation shall be amended and restated in its entirety as follows:

 

“Part 1. Authorized Capital Stock. (A) This Corporation is authorized to issue two classes of shares of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the Corporation is authorized to issue is 19,000,000 shares consisting of:

 

(i) 18,000,000 shares of Common Stock, $.001 per share par value; and

 

(ii) 1,000,000 shares of Preferred Stock, $.001 per share par value of which Two-Hundred Fifty Thousand (250,000) shares have been designated Series A Participating Preferred Stock and Forty Thousand (40,000) shares have been designated Series B Participating Preferred Stock.”

 

THIRD: That, pursuant to resolution of its Board of Directors, an annual meeting of the stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by applicable law was voted in favor of the Amendment.

 

FOURTH: That said Amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment of the Certificate of Incorporation to be executed on this 18th day of May, 2012.

 

 

 

STEEL EXCEL INC.

 

 

 

By: /s/ John J. Quicke

 

Name: John J. Quicke

Title: Interim President and Chief Executive Officer

 

 

 

 

 

 

 

 

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

STEEL EXCEL INC.

 

Steel Excel Inc., a corporation organized and existing under and by virtue of the Delaware General Corporation Law (the “Corporation”) DOES HEREBY CERTIFY THAT:

 

FIRST: This Amendment of the Certificate of Incorporation (the “Certificate of Incorporation”), of the Corporation has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

SECOND: This Amendment of the Certificate of Incorporation adds an Article Fourteen to the Certificate of Incorporation to read in its entirety as follows:

 

ARTICLE FOURTEEN

 

Part 1.  Definitions.  As used in this Article Fourteen, the following capitalized terms have the following meanings when used herein with initial capital letters (and any references to any portions of Treasury Regulation § 1.382-2T shall include any successor provisions):

 

(i)              “4.9-percent Transaction” means any Transfer described in clause (a) or (b) of Part 2 of this Article Fourteen.

 

(ii)              “4.9-percent Stockholder” a Person who owns a Percentage Stock Ownership equal to or exceeding 4.9% of the Corporation’s then-outstanding Stock, whether directly or indirectly, and including Stock such Person would be deemed to constructively own or which otherwise would be aggregated with shares owned by such Person pursuant to Section 382 of the Code, or any successor provision or replacement provision and the applicable Treasury Regulations and Internal Revenue Service guidance thereunder.

 

(iii)              “Agent” has the meaning set forth in Part 5 of this Article Fourteen.

 

(iv)              “Board of Directors” or “Board” means the board of directors of the Corporation.

 

(v)              “Code” means the United States Internal Revenue Code of 1986, as amended from time to time.

 

(vi)              “Corporation Security” or “Corporation Securities” means (i) any Stock, (ii) shares of Preferred Stock issued by the Corporation (other than Preferred Stock described in Section 1504(a)(4) of the Code), and (iii) warrants, rights, or options (including options within the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase Securities of the Corporation.

 

(vii)              “Effective Date” means the date of filing of this Certificate of Amendment of Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware.

 

(viii)              “Excess Securities” has the meaning given such term in Part 4 of this Article Fourteen.

 

 

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(ix)              “Expiration Date” means the earlier of (i) the close of business on the date that is the third anniversary of the Effective Date, (ii)  the repeal of Section 382 of the Code or any successor statute if the Board of Directors determines that this Article Fourteen is no longer necessary or desirable for the preservation of Tax Benefits, (iii) the close of business on the first day of a taxable year of the Corporation as to which the Board of Directors determines that no Tax Benefits may be carried forward or (iv) such date as the Board of Directors shall fix in accordance with Part 12 of this Article Fourteen.

 

(x)              “Percentage Stock Ownership” means the percentage Stock Ownership interest of any Person or group (as the context may require) for purposes of Section 382 of the Code as determined in accordance with the Treasury Regulation § 1.382-2T(g), (h), (j) and (k) or any successor provision and other pertinent Internal Revenue Service guidance.

 

(xi)              “Person” means any individual, firm, corporation or other legal entity, including persons treated as an entity pursuant to Treasury Regulation § 1.382-3(a)(1)(i); and includes any successor (by merger or otherwise) of such entity.

 

(xii)              “Prohibited Distributions” means any and all dividends or other distributions paid by the Corporation with respect to any Excess Securities received by a Purported Transferee.

 

(xiii)              “Prohibited Transfer” means any Transfer or purported Transfer of Corporation Securities to the extent that such Transfer is prohibited and/or void under this Article Fourteen.

 

(xiv)              “Public Group” has the meaning set forth in Treasury Regulation § 1.382-2T(f)(13).

 

(xv)              “Purported Transferee” has the meaning set forth in Part 4 of this Article Fourteen.

 

(xvi)              “Securities” and “Security” each has the meaning set forth in Part 7 of this Article Fourteen.

 

(xvii)              “Stock” means any interest that would be treated as “stock” of the Corporation pursuant to Treasury Regulation § 1.382-2T(f)(18).

 

(xviii)              “Stock Ownership” means any direct or indirect ownership of Stock, including any ownership by virtue of application of constructive ownership rules, with such direct, indirect, and constructive ownership determined under the provisions of Section 382 of the Code and the regulations thereunder.

 

(xix)              “Tax Benefits” means the net operating loss carryforwards, capital loss carryforwards, general business credit carryforwards, alternative minimum tax credit carryforwards and foreign tax credit carryforwards, as well as any loss or deduction attributable to a “net unrealized built-in loss” of the Corporation or any direct or indirect subsidiary thereof, within the meaning of Section 382 of the Code.

 

(xx)              “Transfer” means, any direct or indirect sale, transfer, assignment, conveyance, pledge or other disposition or other action taken by a Person, other than the Corporation, that alters the Percentage Stock Ownership of any Person or group. A Transfer also shall include the creation or grant of an option (including an option within the meaning of Treasury Regulation § 1.382-4(d). For the avoidance of doubt, a Transfer shall not include the creation or grant of an option by the Corporation, nor shall a Transfer include the issuance of Stock by the Corporation.

 

(xxi)              “Transferee” means any Person to whom Corporation Securities are Transferred.

 

 

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(xxii)              “Treasury Regulations” means the regulations, including temporary regulations or any successor regulations promulgated under the Code, as amended from time to time.

 

Part 2.  Transfer and Ownership Restrictions.  In order to preserve the Tax Benefits, from and after the Effective Date of this Article Fourteen any attempted Transfer of Corporation Securities prior to the Expiration Date and any attempted Transfer of Corporation Securities pursuant to an agreement entered into prior to the Expiration Date, shall be prohibited and void ab initio to the extent that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part), either (a) any Person or Persons would become a 4.9-percent Stockholder or (b) the Percentage Stock Ownership in the Corporation of any 4.9-percent Stockholder would be increased.

 

Part 3.  Exceptions.

 

(i)              Notwithstanding anything to the contrary herein, Transfers to a Public Group (including a new Public Group created under Treasury Regulation § 1.382-2T(j)(3)(i)) shall be permitted.

 

(ii)              The restrictions set forth in Part 2 of this Article Fourteen shall not apply to an attempted Transfer that is a 4.9-percent Transaction if the transferor or the Transferee obtains the written approval of the Board of Directors or a duly authorized committee thereof. As a condition to granting its approval pursuant to this Part 3 of Article Fourteen, the Board of Directors, may, in its discretion, require (at the expense of the transferor and/or transferee) an opinion of counsel selected by the Board of Directors that the Transfer shall not result in a limitation on the use of the Tax Benefits as a result of the application of Section 382 of the Code; provided that the Board may grant such approval notwithstanding the effect of such approval on the Tax Benefits if it determines that the approval is in the best interests of the Corporation. The Board of Directors may grant its approval in whole or in part with respect to such Transfer and may impose any conditions that it deems reasonable and appropriate in connection with such approval, including, without limitation, restrictions on the ability of any Transferee to Transfer Stock acquired through a Transfer. Approvals of the Board of Directors hereunder may be given prospectively or retroactively. The Board of Directors, to the fullest extent permitted by law, may exercise the authority granted by this Article Fourteen through duly authorized officers or agents of the Corporation. Nothing in this Part 3 of this Article Fourteen shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.

 

Part 4.  Excess Securities.

 

(i)              No employee or agent of the Corporation shall record any Prohibited Transfer, and the purported transferee of such a Prohibited Transfer (the “Purported Transferee”) shall not be recognized as a stockholder of the Corporation for any purpose whatsoever in respect of the Corporation Securities which are the subject of the Prohibited Transfer (the “Excess Securities”). Until the Excess Securities are acquired by another person in a Transfer that is not a Prohibited Transfer, the Purported Transferee shall not be entitled, with respect to such Excess Securities, to any rights of stockholders of the Corporation, including, without limitation, the right to vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any, and the Excess Securities shall be deemed to remain with the transferor unless and until the Excess Securities are transferred to the Agent pursuant to Part 5 of this Article Fourteen or until an approval is obtained under Part 3 of this Article Fourteen. After the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer, the Corporation Securities shall cease to be Excess Securities. For this purpose, any Transfer of Excess Securities not in accordance with the provisions of Parts 4 or 5 of this Article Fourteen shall also be a Prohibited Transfer.

 

 

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(ii)              The Corporation may require as a condition to the registration of the Transfer of any Corporation Securities or the payment of any distribution on any Corporation Securities that the proposed Transferee or payee furnish to the Corporation all information reasonably requested by the Corporation with respect to its direct or indirect ownership interests in such Corporation Securities. The Corporation may make such arrangements or issue such instructions to its stock transfer agent as may be determined by the Board of Directors to be necessary or advisable to implement this Article Fourteen, including, without limitation, authorizing such transfer agent to require an affidavit from a Purported Transferee regarding such Person’s actual and constructive ownership of Stock and other evidence that a Transfer will not be prohibited by this Article Fourteen as a condition to registering any transfer.

 

Part 5.  Transfer to Agent.  If the Board of Directors determines that a Transfer of Corporation Securities constitutes a Prohibited Transfer then, upon written demand by the Corporation sent within thirty days of the date on which the Board of Directors determines that the attempted Transfer would result in Excess Securities, the Purported Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the Purported Transferee’s possession or control, together with any Prohibited Distributions, to an agent designated by the Board of Directors (the “Agent”). The Agent shall thereupon sell to a buyer or buyers, which may include the Corporation, the Excess Securities transferred to it in one or more arm’s-length transactions (on the public securities market on which such Excess Securities are traded, if possible, or otherwise privately); providedhowever, that any such sale must not constitute a Prohibited Transfer and provided, further, that the Agent shall effect such sale or sales in an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the Agent’s discretion, such sale or sales would disrupt the market for the Corporation Securities or otherwise would adversely affect the value of the Corporation Securities. If the Purported Transferee has resold the Excess Securities before receiving the Corporation’s demand to surrender Excess Securities to the Agent, the Purported Transferee shall be deemed to have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the Corporation grants written permission to the Purported Transferee to retain a portion of such sales proceeds not exceeding the amount that the Purported Transferee would have received from the Agent pursuant to Part 6 of this Article Fourteen if the Agent rather than the Purported Transferee had resold the Excess Securities.

 

Part 6.  Application of Proceeds and Prohibited Distributions.  The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the Purported Transferee has previously resold the Excess Securities, any amounts received by it from a Purported Transferee, together, in either case, with any Prohibited Distributions, as follows: (a) first, such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder; (b) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess Securities (or the fair market value at the time of the Transfer, in the event the purported Transfer of the Excess Securities was, in whole or in part, a gift, inheritance or similar Transfer) which amount shall be determined at the discretion of the Board of Directors; and (c) third, any remaining amounts shall be paid to one or more organizations qualifying under section 501(c)(3) of the Code (or any comparable successor provision) selected by the Board of Directors. The Purported Transferee of Excess Securities shall have no claim, cause of action or any other recourse whatsoever against any transferor of Excess Securities. The Purported Transferee’s sole right with respect to such shares shall be limited to the amount payable to the Purported Transferee pursuant to this Part 6 of Article Fourteen. In no event shall the proceeds of any sale of Excess Securities pursuant to this Part 6 of Article Fourteen inure to the benefit of the Corporation or the Agent, except to the extent used to cover costs and expenses incurred by Agent in performing its duties hereunder.

 

 

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Part 7.  Modification Of Remedies For Certain Indirect Transfers.  In the event of any Transfer which does not involve a transfer of securities of the Corporation within the meaning of Delaware law (“Securities,” and individually, a “Security”) but which would cause a 4.9-percent Stockholder to violate a restriction on Transfers provided for in this Article Fourteen, the application of Parts 5 and 6 of this Article Fourteen shall be modified as described in this Part 7 of this Article Fourteen. In such case, no such 4.9-percent Stockholder shall be required to dispose of any interest that is not a Security, but such 4.9-percent Stockholder and/or any Person whose ownership of Securities is attributed to such 4.9-percent Stockholder shall be deemed to have disposed of and shall be required to dispose of sufficient Securities (which Securities shall be disposed of in the inverse order in which they were acquired) to cause such 4.9-percent Stockholder, following such disposition, not to be in violation of this Article Fourteen. Such disposition shall be deemed to occur simultaneously with the Transfer giving rise to the application of this provision, and such number of Securities that are deemed to be disposed of shall be considered Excess Securities and shall be disposed of through the Agent as provided in Parts 5 and 6 of this Article Fourteen, except that the maximum aggregate amount payable either to such 4.9-percent Stockholder, or to such other Person that was the direct holder of such Excess Securities, in connection with such sale shall be the fair market value of such Excess Securities at the time of the purported Transfer. All expenses incurred by the Agent in disposing of such Excess Stock shall be paid out of any amounts due such 4.9-percent Stockholder or such other Person. The purpose of this Part 7 of Article Fourteen is to extend the restrictions in Part 2 and 5 of this Article Fourteen to situations in which there is a 4.9-percent Transaction without a direct Transfer of Securities, and this Part 7 of Article Fourteen, along with the other provisions of this Article Fourteen, shall be interpreted to produce the same results, with differences as the context requires, as a direct Transfer of Corporation Securities.

 

Part 8.  Legal Proceedings; Prompt Enforcement.  If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale thereof to the Agent within thirty days from the date on which the Corporation makes a written demand pursuant to Part 5 of this Article Fourteen (whether or not made within the time specified in Part 5 of this Article Fourteen), then the Corporation may take such actions as it deems appropriate to enforce the provisions hereof, including the institution of legal proceedings to compel the surrender. Nothing in this Part 8 of Article Fourteen shall (1) be deemed inconsistent with any Transfer of the Excess Securities provided in this Article Fourteen being void ab initio, (2) preclude the Corporation in its discretion from immediately bringing legal proceedings without a prior demand or (3) cause any failure of the Corporation to act within the time periods set forth in Part 5 of this Article Fourteen to constitute a waiver or loss of any right of the Corporation under this Article Fourteen. The Board of Directors may authorize such additional actions as it deems advisable to give effect to the provisions of this Article Fourteen.

 

Part 9.  Liability.  To the fullest extent permitted by law, any stockholder subject to the provisions of this Article Fourteen who knowingly violates the provisions of this Article Fourteen and any Persons controlling, controlled by or under common control with such stockholder shall be jointly and severally liable to the Corporation for, and shall indemnify and hold the Corporation harmless against, any and all damages suffered as a result of such violation, including but not limited to damages resulting from a reduction in, or elimination of, the Corporation’s ability to utilize its Tax Benefits, and attorneys’ and auditors’ fees incurred in connection with such violation.

 

 

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Part 10.  Obligation to Provide Information.  As a condition to the registration of the Transfer of any Stock, any Person who is a beneficial, legal or record holder of Stock, and any proposed Transferee and any Person controlling, controlled by or under common control with the proposed Transferee, shall provide such information as the Corporation may request from time to time in order to determine compliance with this Article Fourteen or the status of the Tax Benefits of the Corporation.

 

Part 11.  Legends.  The Board of Directors may require that any certificates issued by the Corporation evidencing ownership of  shares of Stock that are subject to the restrictions on transfer and ownership contained in this Article Fourteen bear the following legend:

 

“THE CERTIFICATE OF INCORPORATION (THE “CERTIFICATE OF INCORPORATION”), OF THE CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) OF STOCK OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS AND WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE “BOARD OF DIRECTORS”) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE CORPORATION (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER), THAT IS TREATED AS OWNED BY A 4.9 PERCENT STOCKHOLDER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION). IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN THE TRANSFER WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE OF THE STOCK WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) TO THE CORPORATION’S AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN THE MEANING OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE (“SECURITIES”) BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE TERMS PROVIDED FOR IN THE CORPORATION’S CERTIFICATE OF INCORPORATION TO CAUSE THE 4.9 PERCENT STOCKHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE CERTIFICATE OF INCORPORATION, CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS.”

 

The Board of Directors may also require that any certificates issued by the Corporation evidencing ownership of shares of Stock that are subject to conditions imposed by the Board of Directors under Part 3 of this Article Fourteen also bear a conspicuous legend referencing the applicable restrictions.

 

 

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Part 12.  Authority of Board of Directors.

 

(a)              The Board of Directors shall have the power to determine all matters necessary for assessing compliance with this Article Fourteen, including, without limitation, (1) the identification of 4.9-percent Stockholders, (2) whether a Transfer is a 4.9-percent Transaction or a Prohibited Transfer, (3) the Percentage Stock Ownership in the Corporation of any 4.9-percent Stockholder, (4) whether an instrument constitutes a Corporation Security, (5) the amount (or fair market value) due to a Purported Transferee pursuant to Part 6 of this Article Fourteen, and (6) any other matters which the Board of Directors determines to be relevant; and the good faith determination of the Board of Directors on such matters shall be conclusive and binding for all the purposes of this Article Fourteen. In addition, the Board of Directors may, to the extent permitted by law, from time to time establish, modify, amend or rescind Bylaws, regulations and procedures of the Corporation not inconsistent with the provisions of this Article Fourteen for purposes of determining whether any Transfer of Corporation Securities would jeopardize or endanger the Corporation’s ability to preserve and use the Tax Benefits and for the orderly application, administration and implementation of this Article Fourteen.

 

(b)              Nothing contained in this Article Fourteen shall limit the authority of the Board of Directors to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Corporation and its stockholders in preserving the Tax Benefits. Without limiting the generality of the foregoing, in the event of a change in law making one or more of the following actions necessary or desirable, the Board of Directors may, by adopting a written resolution, (1) accelerate or extend the Expiration Date, (2) modify the ownership interest percentage in the Corporation or the Persons or groups covered by this Article Fourteen, (3) modify the definitions of any terms set forth in this Article Fourteen or (4) modify the terms of this Article Fourteen as appropriate, in each case, in order to prevent an ownership change for purposes of Section 382 of the Code as a result of any changes in applicable Treasury Regulations or otherwise; provided, however, that the Board of Directors shall not cause there to be such acceleration, extension or modification unless it determines, by adopting a written resolution, that such action is reasonably necessary or advisable to preserve the Tax Benefits or that the continuation of these restrictions is no longer reasonably necessary for the preservation of the Tax Benefits. Stockholders of the Corporation shall be notified of such determination through a filing with the Securities and Exchange Commission or such other method of notice as the Secretary of the Corporation shall deem appropriate.

 

(c)              In the case of an ambiguity in the application of any of the provisions of this Article Fourteen, including any definition used herein, the Board of Directors shall have the power to determine the application of such provisions with respect to any situation based on its reasonable belief, understanding or knowledge of the circumstances. In the event this Article Fourteen requires an action by the Board of Directors but fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of this Article Fourteen. All such actions, calculations, interpretations and determinations which are done or made by the Board of Directors in good faith shall be conclusive and binding on the Corporation, the Agent, and all other parties for all other purposes of this Article Fourteen. The Board of Directors may delegate all or any portion of its duties and powers under this Article Fourteen to a committee of the Board of Directors as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the authority granted by this Article Fourteen through duly authorized officers or agents of the Corporation. Nothing in this Article Fourteen shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.

 

 

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Part 13.  Reliance.  To the fullest extent permitted by law, the Corporation and the members of the Board of Directors shall be fully protected in relying in good faith upon the information, opinions, reports or statements of the chief executive officer, the chief financial officer, the chief accounting officer or the corporate controller of the Corporation and the Corporation’s legal counsel, independent auditors, transfer agent, investment bankers or other employees and agents in making the determinations and findings contemplated by this Article Fourteen. The members of the Board of Directors shall not be responsible for any good faith errors made in connection therewith. For purposes of determining the existence and identity of, and the amount of any Corporation Securities owned by any stockholder, the Corporation is entitled to rely on the existence and absence of filings of Schedule 13D or 13G under the Securities and Exchange Act of 1934, as amended (or similar filings), as of any date, subject to its actual knowledge of the ownership of Corporation Securities.

 

Part 14.  Benefits of This Article Fourteen.  Nothing in this Article Fourteen shall be construed to give to any Person other than the Corporation or the Agent any legal or equitable right, remedy or claim under this Article Fourteen. This Article Fourteen shall be for the sole and exclusive benefit of the Corporation and the Agent.

 

Part 15.  Severability.  The purpose of this Article Fourteen is to facilitate the Corporation’s ability to maintain or preserve its Tax Benefits. If any provision of this Article Fourteen or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article Fourteen.

 

Part 16.  Waiver.  With regard to any power, remedy or right provided herein or otherwise available to the Corporation or the Agent under this Article Fourteen, (i) no waiver will be effective unless expressly contained in a writing signed by the waiving party; and (ii) no alteration, modification or impairment will be implied by reason of any previous waiver, extension of time, delay or omission in exercise, or other indulgence.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment of the Certificate of Incorporation to be executed on this 18th day of May, 2012.

 

 

 

STEEL EXCEL INC.

 

 

 

By: /s/ John J. Quicke

 

Name: John J. Quicke

Title: President and Interim Chief Executive Officer

 

[As Filed: 05-22-2012]