AMENDED AND RESTATED
CAPITAL CONTRIBUTION AGREEMENT
THIS
AMENDED AND RESTATED CAPITAL CONTRIBUTION AGREEMENT (this “
Agreement ”) is made and entered into as of
July 28, 2009, by and between Apollo Group, Inc., an Arizona
corporation (“ Apollo ”), Carlyle Venture
Partners III, L.P., a Delaware limited partnership (“
Carlyle ”, and together with Apollo and each Affiliate
of Apollo and Carlyle that hereafter becomes an owner of shares of
the Company’s capital stock, the “ Participants
”) and Apollo Global, Inc., a Delaware corporation (the
“ Company ”);
WHEREAS,
Apollo and Carlyle have formed the Company under Delaware law (the
“ Company ”) to acquire, own and operate
international education services businesses outside of the United
States of America (the “ Business ”);
WHEREAS,
the Participants have previously acquired certain shares of the
Company’s Common Stock;
WHEREAS,
the Participants intend that the transactions contemplated hereby
shall qualify as part of an exchange of property for equity
interests under §351 of the Internal Revenue Code;
WHEREAS,
the Participants desire to amend and restate, in its entirety, that
certain Joint Venture Agreement entered into as of October 22,
2007, as amended by Amendment No. 1 on March 5, 2008 (the
“ Original Agreement ”);
WHEREAS,
pursuant to Section 10.4 of the Original Agreement, the
Original Agreement may be amended or modified only upon the express
written agreement of Carlyle and Apollo;
WHEREAS,
contemporaneously with the execution and delivery of this
Agreement, Apollo exchanged, pursuant to the terms and conditions
of the Agreement and Plan of Exchange dated as of the date hereof
(the “ Exchange Agreement ”), all of its stock
in the Company for the Company’s Class A Common
Stock;
WHEREAS,
contemporaneously with the execution and delivery of this
Agreement, Carlyle and CVP III Coinvestment, L.P., a Delaware
limited partnership (“ CVP ”) exchanged,
pursuant to the terms and conditions of the Exchange Agreement, all
of their stock in the Company for the Company’s Class B
Common Stock; and
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valid consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to amend and restate the
Original Agreement in its entirety as follows:
1.1 Certain
Definitions . As used in this Agreement, the following terms
shall have the indicated meanings, unless the context otherwise
requires:
“
Acquisition ” means the acquisition by the Company or
any Subsidiary of (i) all or substantially all of the capital
stock or other equity interests of another Person, whether by
merger, consolidation, direct or indirect purchase or otherwise,
and (ii) all or substantially all of the assets of another
Person.
“
Additional Agreements ” means, collectively, the
Shareholders’ Agreement, the Master Support Agreement, the
Registration Rights Agreement, and the Exchange
Agreement.
“
Affiliate ” of a Person means any other Person, entity
or investment or co-investment fund directly or indirectly
controlling, controlled by or under common control with the Person
and, in the case of a Person which is an entity, any shareholder,
member, partner or other equity holder of such Person, which, in
each case, beneficially owns at least 10% of the outstanding voting
interests of the Person. Each fund managed by Carlyle or an
Affiliate of Carlyle shall be an Affiliate of Carlyle for purposes
of this Agreement, and no portfolio company of Carlyle or its
Affiliates shall be considered an Affiliate of Carlyle or such
Affiliate for purposes of this Agreement.
“
Apollo Board ” means the Board of Directors of
Apollo.
“
Board ” means the Board of Directors of the
Company.
“
Business Day ” means any day other than a Saturday,
Sunday or bank holiday in New York.
“
Business Plan ” shall have the meaning ascribed to it
in Section 6.1(f) hereto.
“
Carlyle Investment Committee ” means the Carlyle
Venture Partners Investment Committee.
“
Common Stock ” means, for periods prior to the
effectiveness of this Agreement, the common stock, par value $0.001
per share, of the Company, and for periods from and after the
effectiveness of this Agreement, the Class A Common Stock and
Class B Common Stock, collectively.
“
Expenses ” means all fees and out of pocket expenses
incurred in connection with this Agreement and the transactions
contemplated by this Agreement, including any transfer or sales
taxes and related costs associated with the transfer of operations
or assets by any Participant to the Company.
“ Fair
Market Value ” means the then current fair market value
of shares of Company Stock as determined in good faith by the Board
with reference to each of (i) the fair
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market value of
Persons which are market comparables of the Company and (ii) a
market-based multiple of EBITDA for the Company’s trailing
twelve (12) months and anticipated EBITDA for the
Company’s following twelve (12) months, in each case
with appropriate adjustments for nonrecurring or extraordinary
expenses and payments to Affiliates of the Company and without any
discount for lack of marketability, restrictions on transfer or
minority status of the shares of Company Stock. Notwithstanding the
immediately preceding sentence, in the event that the Carlyle
Investment Committee has decided not to make additional
contributions to the capital of the Company which is the subject of
a Call Notice pursuant to Section 3.2(a), then from and after
such decision, Fair Market Value shall be determined in accordance
with the parameters set forth in this definition by the Valuation
Firm, which shall reflect its determination in a written report (a
“ Valuation Report ”) delivered to each of the
Company, Carlyle and Apollo, provided however that
the Board, not the Valuation Firm, shall determine the fair market
value of shares of Company Stock in accordance with the parameters
set forth in this definition which are the subject of Call Notices
to Carlyle for dollar amounts of less than $2,000,000 so long as
the aggregate dollar amounts subject to Call Notices to Carlyle in
any twelve (12) month period does not exceed $7,500,000 (and
in the event of such excess, the Valuation Firm, not the Board,
shall determine the fair market value of shares of Company Stock
from and after the date of such excess).
“
Initial Closing ” means the closing of the sale and
purchase of the Initial Shares.
“
Initial Closing Date ” means the date on which the
Initial Closing occurred.
“
International Students” means actual or prospective
students (including leads for prospective students) who
(i) reside outside of the United States of America and its
territories; (ii) are not active duty members of the uniformed
services of the United States of America and (iii) are not
citizens of the United States of America.
“
Master Support Agreement ” means the agreement
referenced in Section 7.5 once executed by the Company and
Apollo.
“
Person ” means an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a
joint venture, a limited liability company, an unincorporated
organization and a governmental entity or any department, agency or
political subdivision thereof.
“
Prime Rate ” means the then-current prime rate as
announced by Citibank N.A.
“
Purchased Shares ” means, with respect to a
Participant, any shares of Common Stock purchased by such
Participant hereunder (including shares issued by the Company in
exchange for any such Purchased Shares); and, generally, all such
shares purchased hereunder (including any shares issued by the
Company in exchange therefor).
“
Shareholders’ Agreement Joinder Agreement ”
shall mean a joinder agreement in substantially the form attached
as Exhibit A to the Shareholders’
Agreement.
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“
Specified Fraction ” is a fraction (i) the
numerator of which is the dollar amount, if any, proposed in a Call
Notice to be used to provide additional funds to the Company, or to
a Subsidiary of the Company which completed the Acquisition, for
working capital, capital expenditures or other obligations or
commitments of the target of the Acquisition and (ii) the
denominator of which is the total dollar amount reflected in such
Call Notice.
“
Valuation Firm ” means a nationally recognized Person
that provides financial advisory or valuation services, has
experience in the postsecondary education sector and is acceptable
to each of Apollo and Carlyle.
Defined terms
which are used in this Agreement but not expressly defined herein
shall have the meanings ascribed to such terms in the
Shareholders’ Agreement.
1.2
Construction . Any reference in this Agreement to an
Article, Section, subsection, paragraph, clause, Schedule or
Exhibit shall be deemed to be a reference to an Article, Section,
subsection, paragraph, clause, Schedule or Exhibit to, this
Agreement, unless otherwise indicated. The Schedules and Exhibits
to this Agreement are incorporated herein by reference and shall be
deemed a part of this Agreement.
1.3 Certain
Conventions . Unless the context of this Agreement otherwise
requires, (a) words of any gender include each other gender,
(b) words such as “herein”, “hereof”,
and “hereunder” refer to this Agreement as a whole and
not merely to the particular provision in which such words appear,
(c) words using the singular shall include the plural, and
vice versa and (d) the words “include,”
“includes” and “including” shall be deemed
to be followed by the phrase “without
limitation.”
ARTICLE II
FORMATION OF THE COMPANY
Contemporaneously
with the execution and delivery of this Agreement, Apollo and
Carlyle are (i) filing with the Secretary of State of the
State of Delaware an amended Certificate of Incorporation in the
form attached hereto as Exhibit A (the “
Certificate of Incorporation ”) and (ii) causing
the Company to adopt amended Bylaws in the form attached hereto as
Exhibit B (the “ Bylaws
”).
ARTICLE III
CAPITALIZATION OF THE COMPANY
3.1 Initial
Shares . Subject to the terms and conditions of the Original
Agreement, Apollo purchased from the Company eight thousand (8,000)
shares of Common Stock and Carlyle purchased from the Company two
thousand (2,000) shares of Common Stock, in each case at a purchase
price per share of $1,000 (such shares, with respect to the
purchasing Participant, its “ Initial Shares ”).
Each of Apollo and Carlyle purchased its Initial Shares on the
Initial Closing Date. Contemporaneously with the execution and
delivery of this Agreement, Apollo exchanged each share of Common
Stock held by Apollo for one share of Class A Common Stock,
and each of Carlyle and CVP exchanged each share of Common Stock
held by Carlyle and CVP, respectively, for one share of Class B
Common Stock. The purchase price per share of
Class A
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Common Stock
and Class B Common Stock will be deemed to equal the purchase
price per share of the Common Stock tendered in the exchange. For
the avoidance of doubt, any Class A Common Stock or
Class B Common Stock received in exchange for Initial Shares
shall be treated as Initial Shares for purposes of this Agreement,
and any Class A Common Stock or Class B Common Stock
received in exchange for Obligatory Additional Shares shall be
treated as Obligatory Additional Shares for purposes of this
Agreement.
3.2
Obligatory Additional Shares . Subject to the terms and
conditions of this Agreement, (i) so long as Apollo is a
stockholder in the Company, Apollo shall purchase up to the number
of additional shares of Class A Common Stock which have an
aggregate purchase price of $793,000,000 and (ii) so long as
Carlyle is a stockholder in the Company, Carlyle and its Affiliates
(provided, that the number of such Affiliates of Carlyle shall not
exceed twenty (20)) shall purchase up to the number of additional
shares of Class B Common Stock which have an aggregate
purchase price of $197,000,000, in each case at a purchase price
per share of Fair Market Value on the date of purchase, except as
otherwise provided in Section 3.2(d) (such shares, with
respect to the purchasing Participant, its “ Obligatory
Additional Shares ”). Notwithstanding the immediately
preceding sentence, Apollo shall not be obligated on any date to
purchase Obligatory Additional Shares with an aggregate purchase
price that exceeds four times the aggregate purchase price of
Obligatory Additional Shares purchased by Carlyle and its
Affiliates through and including such date. Any purchase by Carlyle
or its Affiliates of Obligatory Additional Shares hereunder shall
only be required to be made upon the prior approval of the Carlyle
Investment Committee, which approval may be given or withheld in
its sole discretion. Any purchase by Apollo of Obligatory
Additional Shares hereunder shall only be required to be made upon
the prior approval of the Apollo Board (or with respect to the
purchase of additional shares which have an aggregate purchase
price less than or equal to $10,000,000, the investment committee
of the Apollo Board), which approval may be given or withheld in
its sole discretion. Except as specifically provided in the
Shareholders’ Agreement, no rights of Apollo or Carlyle under
this Agreement or any Additional Agreement shall be affected by any
decision of the Apollo Board or the Carlyle Investment Committee
not to purchase Obligatory Additional Shares. Each Participant
shall purchase its Obligatory Additional Shares in accordance with
the following procedure:
(a) As and
when the growth of the Business requires the Company to make
Acquisitions within the Investment Scope and other investments and
expenditures which are consistent with both the Investment Scope
and the Business Plan (as from time to time in effect), the Board
shall deliver to each Participant a written notice in accordance
with Section 10.1 specifying the dollar amount (which shall be
evenly divisible by $1,000) of the Company’s capital
requirements in connection with such purchases or investments and
the specific use or uses of such dollar amount by the Company (each
such notice, a “ Call Notice ”), provided
however , that no Call Notice relating to a proposed
Acquisition that (a) has an enterprise value in excess of the
lesser of (i) $150,000,000 or (ii) 33.33% of the
Company’s total shareholder equity plus indebtedness for
borrowed money, determined in accordance with US GAAP and as
reflected in the Company’s most recently completed
consolidated balance sheet, and (b) requires the Company to
incur incremental debt or equity financing shall be delivered by
the Company without the prior written consent of both the holders
of a majority of the Class A Common Stock and the holders of a
majority of the Class B Common Stock. Each Call Notice shall
include
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either a
written determination of Fair Market Value per share of Common
Stock by the Board or a Valuation Report, as described in the
definition of Fair Market Value. Apollo and Carlyle shall cause the
Company to issue, and the Company shall issue, a number of shares
of Common Stock equal to the dollar amount specified in the Call
Notice divided by the then current Fair Market Value per share of
Common Stock, provided however , that Apollo shall
purchase only Class A Common Stock and Carlyle and its
Affiliates shall purchase only Class B Common
Stock.
(b) If the
Apollo Board and the Carlyle Investment Committee have each
approved the purchase of Obligatory Additional Shares pursuant to
corresponding Call Notices, Apollo shall purchase shares of
Class A Common Stock issued pursuant to Section 3.2(a)
and Carlyle and its Affiliates shall purchase shares of
Class B Common Stock issued pursuant to Section 3.2(a) on
the basis of 80.1% of the aggregate number of shares of Common
Stock and 19.9% of the aggregate number of shares of Common Stock,
respectively. If the Apollo Board approves the purchase of
Obligatory Additional Shares pursuant to a Call Notice, but the
Carlyle Investment Committee does not approve the purchase of
Obligatory Additional Shares pursuant to the corresponding Call
Notice, then Apollo may, in its sole discretion (i) have the
corresponding Call Notice to Apollo rescinded and of no further
force or effect, (ii) purchase its Obligatory Additional
Shares, or (iii) purchase all of the Obligatory Additional
Shares (which shall all be issued as Class A Common Stock). If
the Apollo Board does not approve the purchase of Obligatory
Additional Shares pursuant to a Call Notice, Carlyle may, in its
sole discretion, (i) have the corresponding Call Notice to
Carlyle rescinded and of no further force or effect,
(ii) purchase its Obligatory Additional Shares, or
(iii) purchase all of the Obligatory Additional Shares (which
shall all be issued as Class B Common Stock). The Company
agrees to rescind each Call Notice described in clause (i) of
each of the two preceding sentences promptly upon the request of
Apollo or Carlyle as specified in such sentences but in any event
before the date for a Subsequent Closing scheduled in the Call
Notice. The closing of such purchases (each such closing pursuant
to a Call Notice, a “ Subsequent Closing ”),
which shall occur simultaneously, shall occur on or before the
tenth (10 th
) Business Day following the date of
the relevant Call Notice, or on such other date as Carlyle and
Apollo may agree upon in writing. The date on which any Subsequent
Closing is held is referred to in this Agreement as a “
Subsequent Closing Date ”.
(c) For
avoidance of doubt, the Participants shall not cause the Company to
issue pursuant to Section 3.2(a), and the Participants shall
not be required to purchase pursuant to Section 3.2(b), any
Obligatory Additional Shares in excess of the number of shares set
forth in the first paragraph of this Section 3.2.
(d) Notwithstanding
any other provision of this Agreement, including without limitation
Section 3.2(a), in the event that the Carlyle Investment
Committee has not approved the purchase of Obligatory Additional
Shares which relates to an Acquisition and the Board subsequently
issues one or more Call Notices to the Participants which total
either (x) $25,000,000 for a single Subsequent Closing or (y)
$75,000,000 for all Subsequent Closings in any twelve
(12) month period, in each case with the specific use or uses
of the dollar amounts that are the subject of such Call Notices
being to provide additional funds to the Company, or a Subsidiary
of the Company which completed such Acquisition, for working
capital, capital expenditures or other obligations or commitments
of the target of the Acquisition and the Carlyle
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Investment
Committee does not approve, in its sole discretion, the purchase of
Obligatory Additional Shares which are the subject of such
subsequent Call Notices, then the Specified Fraction of the
Obligatory Additional Shares, if any, purchased by Apollo and its
Affiliates shall be purchased at a price described in the following
sentence, with the remainder of the Obligatory Additional Shares
that are the subject of such Call Notice purchased by Apollo and
its Affiliates at Fair Market Value. For each subsequent Call
Notice described in the preceding sentence, the price at which
Apollo and its Affiliates shall purchase the Specified Fraction of
the Obligatory Additional Shares shall be one and one-half times
the current Fair Market Value per share of Common Stock.
(e) The
obligation of Apollo to purchase its Obligatory Additional Shares
shall be the direct obligation of Apollo and shall be enforceable
by the Company and Carlyle. The obligation of Carlyle to purchase
its Obligatory Additional Shares shall be the direct obligation of
Carlyle and shall be enforceable by the Company and Apollo against
Carlyle. The failure of a Participant which is required to purchase
its Obligatory Additional Shares pursuant to Sections 3.2(b)
and 6.2 shall constitute a material breach of this Agreement by
such Participant. If a Participant fails to so purchase its
Obligatory Additional Shares, all amounts distributable by the
Company to such Participant in any capacity (whether by dividend,
distribution, payment under an Additional Agreement or otherwise)
shall be suspended, and the Participant’s (or
Carlyle’s, in the case of a Participant that is an Affiliate
of Carlyle) right to receive distributions from the Company shall
not be restored until such Participant shall have paid in full to
the Company the consideration due in connection with such
Obligatory Additional Shares, plus interest thereon at the
Prime Rate annually, calculated from the date such consideration
should have been paid to the date it is paid by such
Participant.
(f) The
Participants acknowledge that the purchase of any Obligatory
Additional Shares hereunder may be made through the contribution of
assets owned by either Apollo or Carlyle (“ Contributed
Assets ”). Each of Carlyle and Apollo may request that,
in addition to the assets of Apollo and its Subsidiaries that are
primarily or fully dedicated to enrolling or serving International
Students and the university owned by Apollo with half of its
campuses presently located outside of the United States of America
referred to in Section 10.1, the other consider the
advisability of the contribution to the Company of Contributed
Assets owned by either of Carlyle or Apollo and, upon the prior
written consent of Apollo or Carlyle, as the case may be, Apollo,
the Company and Carlyle shall proceed with a due diligence
investigation of the Contributed Assets and the valuation thereof.
Apollo and Carlyle shall use their good faith efforts to mutually
determine the fair market value of any Contributed Assets and,
subject to the terms of the Mutual Nondisclosure Agreement between
Apollo and Carlyle Investment Management L.L.C. dated
August 2, 2007 (the “ Confidentiality Agreement
”), the Participant contributing assets shall, and shall
cause its Subsidiaries to, afford to each other Participant’s
officers, directors, employees, accountants, counsel, consultants,
advisors and agents reasonable access to and the right to inspect,
during normal business hours and with reasonable advance notice,
all of the real property, properties, assets, records, contracts
and other documents related to the Contributed Assets, and shall
permit them to consult, during normal business hours and with
reasonable advance notice, with the officers, employees,
accountants, counsel and agents of the Participant and its
subsidiaries for the purpose of making such investigation of the
Contributed Assets as such Participant shall desire to make. Each
Participant contributing assets shall make
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available to
each other Participant all such documents and copies of documents
and records and information with respect to the Contributed Assets
as the other Participant may reasonably request. If Apollo and
Carlyle agree, the Contributed Assets shall be contributed to the
Company at the agreed valuation therefor subject to the prior
negotiation and agreement to the terms of definitive documentation
which is appropriate for the transfer of such Contributed Assets
and which definitive documentation shall contain customary
representations and warranties, covenants, indemnification
provisions (including customary caps and thresholds) and closing
conditions (including compliance with all applicable regulatory
requirements). Within five (5) days of the closing of the
transfer of Contributed Assets, the Company shall deliver a Call
Notice pursuant to Section 10.1 to each Participant which did
not transfer Contributed Assets to the Company in such closing,
setting forth the agreed upon fair market value of the Contributed
Assets times such Participant’s percentage of the aggregate
number of shares of Common Stock specified in the first sentence of
Section 3.2(b), together with the determination of the Fair
Market Value of shares of Common Stock described in the definition
of Fair Market Value. Subject to the satisfaction of
Section 6.2, each Participant which did not transfer the
Contributed Assets to the Company shall within fifteen
(15) days of its receipt of the Call Notice, shall make a
capital contribution to the Company in an amount equal to the
agreed upon fair market value of the Contributed Assets times such
Participant’s percentage of the aggregate number of shares of
Common Stock specified in the first sentence of Section 3.2(b)
and receive the number of shares of Common Stock which is equal to
the capital contribution made by such Participant pursuant to this
Section 3.2(f) divided by the Fair Market Value of shares of
Common Stock.
3.3
Termination and Survival of Rights and Obligations . A
Participant’s obligation to pay consideration due to the
Company for shares of capital stock purchased under this
Article III shall survive (a) the termination,
dissolution, liquidation and winding up of the Company, and for
purposes of this Article III, the Company shall be treated as
continuing in existence, and (b) the purchase of such
Participant’s shares of capital stock by the other
Participants or a third person, whether pursuant to the
Shareholders’ Agreement or otherwise. The Company may pursue
and enforce all rights and remedies that it may have against each
Participant under this Article III, including, without
limitation, instituting a lawsuit to collect such payments with
interest.
3.4 Optional
Capital Calls . From and after the date that either
(i) Apollo and its Affiliates have purchased at least
$801,000,000 in aggregate purchase price of shares of Common Stock
pursuant to Sections 3.1 and 3.2 or (ii) Carlyle and its
Affiliates have purchased at least $199,000,000 in aggregate
purchase price of shares of Common Stock pursuant to
Sections 3.1 and 3.2, the Board may deliver additional written
notices to each Participant who has purchased all of its Obligatory
Additional Shares for the purposes, and consistent with the
requirements, set forth in Section 3.2(a) of this Agreement
and paragraph in 2 of the Shareholders’ Agreement (the
“ Optional Call Notices ”). Each such
Participant shall have the right, which it may exercise, in its
sole discretion and in whole or in part, but not the obligation, to
purchase at one or more Subsequent Closings additional shares of
Common Stock (the “ Optional Additional Shares
”) at the prices and in the manner specified in
Sections 3.2(b) and 3.2(d) and subject to the satisfaction of
the conditions specified in Section 6.2.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE
PARTICIPANTS
Each Participant
represents and warrants to each other Participant and the Company
as of the date hereof, and will represent and warrant to each other
Participant and the Company as of each Subsequent Closing Date, as
follows:
4.1
Accredited Investor . Such Participant (a) is an
“accredited investor” (as that term is defined in
Section 501(a) of Regulation D promulgated under the
Securities Act of 1933, as amended (the “ Act
”)) because it is either (x) a corporation not formed
for the specific purpose of acquiring the securities offered, and
has total assets in excess of $5,000,000 or (y) an entity in
which all of the equity owners are accredited investors,
(b) has such knowledge and experience in financial and
business matters to be capable of evaluating the merits and risks
of the investment contemplated hereby and (c) has reviewed the
merits of such investment with tax and legal counsel and other
advisors to the extent deemed advisable. Such Participant will
acquire its Purchased Shares for its own account for investment and
not with a view to the sale or distribution thereof, and such
Participant has no present intention of distribution or selling to
others any of such interest.
4.2
Access . Such Participant has had access to all the
information it considers necessary or appropriate to make an
informed investment decision with respect to the investment in the
Purchased Shares under this Agreement. Such Participant further has
had the opportunity to obtain all additional information necessary
to verify the information to which such Participant has had
access.
4.3 Nature
of Investment . Such Participant understands that the Purchased
Shares are characterized as “restricted securities”
under the Act inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under the
Act and related regulations such securities may be resold under the
Act only in certain limited circumstances. Such Participant is
familiar with and understands such resale limitations imposed by
the Act and related regulations and by the Shareholders’
Agreement. Such Participant understands that the Company has no
present intention to register any of the Purchased
Shares.
4.4
Authorization; Validity; No Conflicts . Such Participant is
duly authorized (including by all requisite corporate or
stockholder (or equivalent, for entities other than corporations)
action on the part of such Participant and its officers and
directors and its direct and indirect stockholders (or equivalent
equity owners, for entities other than corporations)), and has full
power and authority, to execute and perform its obligations under
this Agreement and each Additional Agreement to which it is a
party, and each such agreement, when executed and delivered by such
Participant, constitutes such Participant’s legal, valid and
binding obligation enforceable against it in accordance with its
terms except (i) as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors’ rights generally
and (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought. The execution, delivery and
performance by such Participant of this Agreement and each
Additional Agreement
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to which it is
a party, and the consummation by such Participant of the
transactions contemplated hereby and thereby will not
(a) conflict with or constitute a default under any agreement,
indenture or instrument to which such Participant is a party,
(b) conflict with or violate such Participant’s
organizational documents or (c) result in a violation of any
order, judgment or decree of any court or governmental or
regulatory authority having jurisdiction over such Participant or
any of its assets.
4.5
Limitation on Representations . Such Participant understands
and agrees that each other Participant is only making the
representations and warranties set forth in this Article IV,
and no other representations or warranties, express or implied, are
made by such other Participant.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company
represents and warrants to each Participant as of the date hereof,
and will represent and warrant to each Participant as of each
Subsequent Closing Date as follows:
5.1
Corporate Organization; Authorization .
(a) The
Company is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all corporate
requisite power and authority to carry on its business as now
conducted and to own or lease its properties and assets. The
Company is duly qualified or licensed to do business as a foreign
company in good standing in each state of the United States and in
each foreign jurisdiction in which the conduct of its business or
the ownership or leasing of its properties require such
qualification.
(b) The
Company has full corporate power and authority to enter into this
Agreement and the Additional Agreements and to carry out the
transactions contemplated hereby and thereby. The Board of
Directors and stockholders of the Company have taken all action
required to authorize the execution and delivery of this Agreement
and the Additional Agreements, the performance of the
Company’s obligations hereunder and thereunder and the
consummation of the transactions contemplated hereby and thereby.
No other corporate proceedings on the part of the Company are
necessary to authorize the execution, delivery and performance by
it of this Agreement and the Additional Agreements.
(c) This
Agreement and the Additional Agreements to which it is a party have
been duly executed and delivered by the Company and constitute
legal, valid and binding obligations of the Company, enforceable
against it in accordance with the terms of such agreements, except
(i) as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect relating to creditors’ rights generally and
(ii) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
10
The execution,
delivery and performance by the Company of this Agreement and the
Additional Agreements and the consummation of the transactions
contemplated hereby and thereby does not (a) violate, conflict with
or result in the breach of any provisions of the Certificate of
Incorporation or Bylaws of the Company, (b) in any material
respect, violate, conflict with, result in any breach of,
constitute a default under, require any consent under, or give to
others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the
creation of any lien on any shares of Common Stock or any of the
assets or property of the Company pursuant to, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to
which the Company is a party or by which any shares of Common Stock
or any of such assets or properties is bound or affected,
(c) require the consent of any party to any material agreement
or commitment to which the Company is a party, or by which the
Company is bound, or (d) in any material respect, conflict
with or violate any law or governmental order to which the Company
is subject.
5.3 Consents
and Approvals of Governmental Authorities .
The execution,
delivery and performance of this Agreement and each Additional
Agreement by the Company does not require any consent, approval,
authorization or other order of, action by or declaration, filing
or registration with or notification to, any governmental authority
to be made or obtained by the Company in connection with the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
The authorized and
issued shares of capital stock of the Company, as of immediately
prior to the execution and delivery hereof, and as of the execution
and delivery hereof, are set forth on Schedule 5.4 .
All issued and outstanding shares of capital stock of the Company
are validly issued, fully paid and nonassessable and all shares of
Capital Stock to be issued on each Subsequent Closing Date will,
assuming payment in full of the amount specified in the Call Notice
or the Optional Call Notice, be validly issued, fully paid and
nonassessable. Except as set forth in Schedule 5.4 ,
there are no other authorized, issued or outstanding shares of
capital stock of the Company, nor any options, warrants or other
securities convertible into or exchangeable or exercisable for
shares of capital stock of the Company, outstanding. Except as set
forth on Schedule 5.4 , there are no outstanding
options, warrants, rights, contracts, commitments, understandings
or arrangements by which the Company is bound to issue, repurchase
or otherwise acquire or retire any additional shares of capital
stock or other securities of the Company. There are no voting
trusts, stockholder agreements, proxies or other agreements or
understandings in effect with respect to the voting or transfer of
any shares of capital stock of the Company other than the
Shareholders’ Agreement.
Except as set
forth on Schedule 5.5 , the Company has no Subsidiaries
and does not own any capital stock or other equity securities of
any other corporation and has no other type of capital or equity
interest in any Person (other than the Company). The Company is not
subject to
11
any obligation
or requirement to make any investment (in the form of a loan or
capital contribution) in any Person (other than the Company),
except as set forth in Schedule 5.5 .
ARTICLE VI
CLOSINGS; CONDITIONS TO CLOSINGS
6.1 Initial
Closing . The Initial Closing took place on October 22,
2007.
6.2
Subsequent Closings . Each Subsequent Closing under this
Agreement shall take place at the offices of Morgan, Lewis &
Bockius LLP, One Market Street, San Francisco, CA 94105 (or such
other place as the Participants may agree upon in writing) on the
relevant Subsequent Closing Date. Notwithstanding the foregoing
provisions of this Section 6.2, the obligation of each
Participant to purchase the Obligatory Additional Shares or
Optional Additional Shares to be purchased by it at a Subsequent
Closing shall be subject to the fulfillment of the following
conditions:
(a) The
representations and warranties of each other Participant set forth
in Article IV shall be true and correct on such Subsequent
Closing Date.
(b) The
representations and warranties of the Company set forth in
Article V, including updated Schedules 5.4 and 5.5 ,
shall be true and correct on the Subsequent Closing
Date.
(c) The other
Participant shall have purchased all of the Initial Shares to be
purchased by it at the Initial Closing.
(d) Each
Participant shall have received all required governmental and
regulatory approvals, and all waiting periods under any applicable
antitrust regulations shall have expired, in connection with the
formation of the Company and the consummation of the transactions
contemplated by this Agreement.
(e) The
Company shall have developed a written business plan mutually
acceptable to the Participants (the “ Business Plan
”) and in the event that the Business Plan is dated more than
twelve months before the date of a Subsequent Closing, the Business
Plan shall have been updated on such terms mutually acceptable to
the Participants.
(f) The
Company shall have received either (i) payment from each other
Participant of the purchase price for the Obligatory Additional
Shares or Optional Additional Shares to be purchased by such
Participant at such Subsequent Closing by wire transfer of
immediately available funds to an account designated by or on
behalf of the Company on or prior to the Subsequent Closing, or
(ii) transfer of Contributed Assets, pursuant to
Section 3.2(f), by such Participant to the Company at their
fair market value, as mutually agreed by the Participants pursuant
to Section 3.2(f).
12
(g) The
Company shall have maintained in full force and effect a
directors’ and officers’ liability policy in such
amounts and on such terms mutually acceptable to the
Participants.
(h) This
Agreement and the Additional Agreements shall be in full force and
effect and neither the Company nor any other Participant which is
not an Affiliate shall be in material breach of its obligations
under this Agreement or under the Additional Agreements.
(i) Each
Participant shall have executed either the Shareholders’
Agreement or a Shareholders’ Agreement Joinder
Agreement.
ARTICLE VII
CERTAIN COVENANTS
7.1
Shareholders’ Agreement; Restrictions on Transfer . At
or prior to the Initial Closing, the Company, Carlyle and Apollo
executed a Shareholders’ Agreement. On the date of this
Agreement, the Company, Carlyle and Apollo shall execute an amended
and restated Shareholders’ Agreement in the form attached
hereto as Exhibit C (the “ Shareholders’
Agreement ”), pursuant to which the Company, Carlyle and
Apollo shall impose certain restrictions on the transfer of Shares
(as defined in the Shareholders’ Agreement) and set forth
their agreement with respect to certain other matters as described
therein. Each of Apollo and Carlyle agrees that no sale, assignment
or transfer of its Purchased Shares shall be valid or effective,
and the Company shall not be required to give any effect to any
such sale, assignment or transfer, unless (a) the sale,
assignment or transfer of such Purchased Shares is registered under
the Act or (b) such sale, assignment or transfer is otherwise
exempt from registration under the Act. In addition, each of Apollo
and Carlyle agrees that any sale, assignment or transfer of its
Purchased Shares shall be made in compliance with the
Shareholders’ Agreement. Each of Apollo and Carlyle
acknowledges that the certificate or certificates evidencing its
Purchased Shares shall bear a legend stating or referring to the
foregoing transfer restrictions.
7.2
Registration Rights Agreement . At or prior to the Initial
Closing, the Company, Carlyle and Apollo executed, and caused the
Company to execute, a Registration Rights Agreement in the form
attached hereto as Exhibit D (the “
Registration Rights Agreement ”).
7.3 Further
Assurances . The Company, Apollo and Carlyle agree to use their
best efforts to obtain all necessary consents and approvals and
expiration of all waiting periods (including all required
governmental and regulatory approvals and waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended),
for the consummation of the transactions contemplated by this
Agreement. The Company, Apollo and Carlyle further agree to take or
cause to be taken all such corporate (or equivalent, for entities
other than corporations) and other action, including executing
and/or delivering further instruments and documents, as may be
necessary to effect the intent and purposes of this
Agreement.
7.4 Public
Announcements . All press releases and other public disclosure
concerning the existence or terms of this Agreement, the Additional
Agreements or the transactions contemplated hereby and thereby from
and after the date hereof will be subject to review by and approval
each of Apollo and Carlyle, which approval shall not be
unreasonably withheld;
13
provided , that to the extent a Participant shall have
received the written advice of counsel that it is required to make
an announcement pursuant to any law, regulation, order or stock
exchange rule, it shall be permitted to do so even if it has not
obtained the approval of the other Participant so long as it has
used reasonable efforts to consult with and obtain consent of the
other Participant to the content of the announcement and strictly
limits such announcement to the minimum disclosure
required.
7.5 Master
Support Agreement . The Company and Apollo shall use their
reasonable efforts to execute and deliver a Master Support
Agreement on terms and conditions mutually agreed upon by Apollo
and Carlyle, which terms will include the reimbursement of
Apollo’s expenses for such services at rates to be mutually
agreed upon by Apollo and Carlyle.
7.6
International Students . Apollo and Carlyle expect that from
and after the date that the International Assets (as defined in
Section 10.1) are transferred to the Company, all educational
and other related activities directed toward International Students
engaged by Apollo or its Subsidiaries shall be engaged in by the
Company (or its Subsidiaries) to the exclusion of Apollo and its
other Subsidiaries. Apollo agrees that during the period which
commences on the date that the International Assets have been
contributed to the Company and ends on the last day of the term of
this Agreement, neither Apollo nor any of its Subsidiaries (other
than the Company or its Subsidiaries) shall solicit or recruit
International Students. Apollo and its Subsidiaries shall use their
reasonable best efforts to transfer the International Assets to the
Company within eighteen (18) months after the date of this
Agreement. In the event that any International Asset is not
contributed to the Company notwithstanding the use of reasonable
best efforts by Apollo and its Subsidiaries, representatives of
Apollo and Carlyle shall meet immediately after the meeting of the
board of directors of the Company which follows the eighteen
(18) month anniversary of this Agreement and engage in good
faith negotiations regarding the reclassification of such
International Asset that has not been contributed to the Company as
a “Reclassified Asset” for purposes of this Agreement.
Apollo agrees that it shall not unreasonably withhold, delay or
condition its consent to the reclassification of an International
Asset which is not contributed to the Company as a Reclassified
Asset. Apollo agrees that commencing on the date that a
business(es) or asset(s) become a Reclassified Asset, neither
Apollo nor its Subsidiaries (other than the Company or its
Subsidiaries) shall directly or indirectly solicit International
Students by, through or for the benefit of the Reclassified Asset
or any part or division thereof until the last day of the term of
this Agreement. In the event that after the date of this Agreement
either Apollo or its Subsidiaries (other than the Company or its
Subsidiaries) acquire any Person, business or assets that are
either (a) within the Investment Scope and the holders of a
majority of the Class B Common Stock have not withheld their
consent to such acquisition pursuant to paragraph 2(b)(1)(iv) of
the Shareholders’ Agreement (if such consent is required
under such paragraph) or (b) not within the Investment Scope
because the principal operations and facilities of the educational
services business of the acquired Person, business or assets are
located within the United States but such Person, business or
assets also include secondary or ancillary educational services
operations and facilities outside of the United States (an
“Ancillary International Business”), neither Apollo nor
any of its Subsidiaries (other than the Company or its
Subsidiaries) shall directly or indirectly solicit International
Students by, through or for the benefit of either an International
Asset described in clause (a) of this sentence or an Ancillary
International Business for a period which commences on the date
that such
14
International
Asset or Ancillary International Business is acquired or controlled
by Apollo or its Subsidiaries and ends on the last day of the term
of this Agreement. Notwithstanding the first sentence of this
Section 7.6 but subject to clause (b) of the fourth
sentence of this Section 7.6, neither Apollo nor its
Subsidiaries shall be prohibited or restricted in any manner from
advertising, promoting or marketing: (I) to students and
prospective students generally, including advertising, promoting or
marketing via the internet (or using internet search methods) any
programs or educational services to students and prospective
students (including leads for prospective students) so long as such
advertising, promotions or marketing activities are not developed
for, intended to target or otherwise directed to, International
Students; or (II) any business or assets that:(x) are not
within the Investment Scope (as defined in the Shareholders’
Agreement); (y) are not actually engaged in, used for or
planned to be engaged in or used for marketing, promoting,
soliciting, responding to leads and related activities for, or on
behalf of, education or corporate training programs or services for
International Students and (z) have been acquired by Apollo or
its Subsidiaries in accordance with this Agreement.
ARTICLE VIII
TERM AND TERMINATION
8.1 Term and
Termination . This Agreement shall become effective as of the
date hereof and thereafter shall remain in full force and effect
until terminated in accordance with this Agreement. This Agreement
shall be terminated upon the first to occur of the following
events: (a) the written agreement of Apollo and Carlyle,
(b) the dissolution of the Company, or (c) one
Participant holds all the issued and outstanding shares of capital
stock of the Company.
8.2 Effect
of Termination . The termination of this Agreement for any
cause shall not in any way affect or be deemed to affect any
obligation of either party having accrued prior to the termination
hereof or any right or obligation which, by its terms, is to
survive the termination of this Agreement.
ARTICLE IX
DISPUTE RESOLUTION
9.1
Arbitration; Consent to Jurisdiction and Service . Any
dispute hereunder shall be settled by arbitration in Wilmington,
Delaware in accordance with the commercial arbitration rules then
in effect of the American Arbitration Association. The parties
consent to the jurisdiction of the state or federal courts of the
State of Delaware for all purposes in connection with arbitration,
and to service of process by first class United States mail
delivered in accordance with the applicable rules of such courts.
The award entered by the arbitrator(s) shall be final and binding
on all parties to arbitration. Each party shall bear its respective
arbitration expenses and shall each pay its pro rata share of the
arbitrator’s charges and expenses. All proceedings shall be
conducted, and all submissions shall be made, in
English.
9.2 Specific
Performance . The parties hereby acknowledge and agree that the
obligations imposed on them in this Agreement are special, unique
and of an extraordinary character, and
15
that
irreparable damage may result in the event that this Agreement is
not specifically enforced (including without limitation any
restrictions on transfer of Purchased Shares) and the parties
hereto agree that any damages available at law for a breach of this
Agreement would not be an adequate remedy. Therefore, the
provisions hereof and the obligations of the parties hereunder
shall be enforceable by a decree of specific performance, and
appropriate injunctive relief may be applied for and granted in
connection therewith. Such remedies and all other remedies provided
for in this Agreement shall, however, be cumulative and not
exclusive and shall be in addition to any other remedies which any
party may have under this Agreement or otherwise.
9.3 NO
EXTRAORDINARY DAMAGES . NOTWITHSTANDING ANY TERM OR PROVISION
OF THIS AGREEMENT, NEITHER PARTY NOR THEIR RESPECTIVE OFFICERS,
EMPLOYEES OR AGENTS, SHALL BE LIABLE TO THE OTHER PARTY OR ITS
RESPECTIVE OFFICERS, EMPLOYEES OR AGENTS, FOR CLAIMS FOR PUNITIVE,
SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF ANY
APPLICABLE DECEPTIVE TRADE PRACTICES ACT OR ANY OTHER LEGAL OR
EQUITABLE PRINCIPLE.
9.4
Governing Law . This Agreement shall be construed according
to and governed by the laws of the State of Delaware, without
reference to conflicts of laws principles.
ARTICLE X
GENERAL PROVISIONS
10.1
Expected Contributed Assets . Apollo and Carlyle expect that
the business, operations, assets and goodwill of each of the assets
of Apollo and its Subsidiaries that are primarily or fully
dedicated to enrolling or serving International Students
(collectively, the “ International Assets ”)
will be contributed to the Company by Apollo in exchange for
Obligatory Additional Shares pursuant to and in accordance with
Section 3.2(f) after consolidating financial statements have
been completed for each of the International Assets.
10.2
Notices . All notices, requests, demands and other
communications hereunder shall be in writing and delivered to the
relevant party at its address set forth below (or such other
address as notified by one party to the other) by any of the
following methods: (a) personal delivery, (b) United
States mail, postage prepaid, (c) pre-paid, nationally
recognized overnight courier or (d) fax with a copy following
by any method described in the foregoing clauses (a) to (c).
Notices will be deemed to have been given hereunder when delivered
personally, five days after deposit in the U.S. mail and one day
after deposit with a nationally recognized overnight courier
service.
Apollo Global,
Inc.
227 West Monroe
Suite 3600
Chicago, IL 60606
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Attn: Chief
Financial Officer
Facsimile: (312) 578-0489
If to Apollo or
its Affiliates:
Apollo Group,
Inc.
4025 South Riverpoint Parkway
Mail Stop CF-KX01
Phoenix, AZ 85040
Attention: Chief Financial Officer
Facsimile: (602) 557-3898
Morgan, Lewis
& Bockius LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Attention: William A. Myers, Esq.
Facsimile: (415) 442-1001
If to Carlyle
or its Affiliates:
1001
Pennsylvania Avenue, N.W.
Suite 220 South
Washington, DC 20004-2505
Attention: Brooke B. Coburn
Facsimile: (202) 347-1818
Dickstein
Shapiro LLP
1825 Eye Street, NW
Washington, DC 20006-5403
Attention: Neil Lefkowitz
Facsimile: (202) 420-2201
Any party shall
have the right to change its address for notice hereunder from time
to time to such other address as may hereafter be furnished in
writing by such party to the other party
10.3
Relationship . Neither party, nor any of its employees,
customers or agents, shall, by virtue of this Agreement, be deemed
to be the representative, employee or agent of the other party for
any purpose whatsoever, nor shall they or any of them have, by
virtue of this Agreement, any authority or right to assume or
create an obligation of any kind or nature, expressed or implied,
on behalf of the other party, nor to accept service of any legal
process of any kind addressed to, or intended for, the other
party.
17
10.4
Amendments . This Agreement may be amended or modified only
upon the express written agreement of Carlyle and
Apollo.
10.5 No
Waiver of Default . No consent or waiver, express or implied,
by any party with respect to any breach or default hereunder by any
other shall be deemed or construed to be a consent or waiver with
respect to any other breach or default by such other party of the
same provision or any other provision of this Agreement. Failure on
the part of either party to complain of any act or failure to act
of any other party or to declare such party in default shall not be
deemed or constitute a waiver by such party of any rights hereunder
with respect to such act or failure to act.
10.6 No
Third Party Rights . None of the provisions contained in this
Agreement shall be for the benefit of or enforceable by any person
who is not a party to this Agreement; provided , that,
Carlyle Affiliates which own shares of the capital stock of the
Company shall be entitled to all rights and benefits of Carlyle
under this Agreement. The parties hereto expressly retain any and
all rights to amend this Agreement as provided herein,
notwithstanding any interest in this Agreement held by the Company
or any third person.
10.7 No
Assignment; Binding Agreement . No party hereto may assign this
Agreement or any of its rights or obligations hereunder, except
with the prior written consent of the others; provided ,
that in the event that either (i) a Participant transfers its
shares of capital stock of the Company to a third person in
accordance with the Shareholders’ Agreement or (ii) a
Carlyle Affiliate purchases from the Company shares of the capital
stock of the Company, consent to the assignment of this Agreement
to such third person shall be deemed to have been given, so long as
such third person agrees in writing to assume all of the
obligations of the transferring Participant hereunder. Subject to
the foregoing, the provisions of this Agreement shall be binding
upon, and, except as otherwise provided herein, shall inure to the
benefit of the parties and their respective successors and
permitted assigns.
10.8
Severability . In the event any provision of this Agreement
is held to be illegal, invalid or unenforceable to any extent, the
legality, validity and enforceability of the remainder of this
Agreement shall not be affected thereby and shall remain in full
force and effect and shall be enforced to the greatest extent
permitted by law.
10.9 Fees
and Expenses . The reasonable Expenses of each Participant
shall be paid by the Company.
10.10 No
Election of Remedies . No provision of, or any rights granted
or remedies available under, this Agreement or, when executed and
delivered, any Additional Agreement shall limit the availability of
any other right or remedy for the breach or violation of any of the
provisions contained in this Agreement or, when executed and
delivered, any Additional Agreement.
10.11
Headings . The headings of the articles and sections of this
Agreement are for convenience only and shall not be considered in
construing or interpreting any of the terms or provisions
hereof.
18
10.12 Entire
Agreement . This Agreement, the Confidentiality Agreement and,
when executed and delivered, the Additional Agreements, and any
document required to be executed by any of such agreements, contain
the entire agreement between the parties, and supersede all prior
writings or agreements, with respect to the subject matter
hereof.
10.13
Counterparts . This Agreement may be executed in several
counterparts, all of which together shall constitute one agreement
binding on all parties, notwithstanding that all the parties have
not signed the same counterpart.
[Remainder of page intentionally
left blank]
19
IN
WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Capital Contribution Agreement to be duly executed as of
the date first written above.
THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION
THAT MAY BE ENFORCED BY THE PARTIES.
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APOLLO
GROUP, INC.
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By:
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/s/ Brian L.
Swartz
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Name:
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Brian L.
Swartz
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Title:
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Chief Financial
Officer
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CARLYLE
VENTURE PARTNERS III, L.P.
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By:
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TCG VENTURES
III, L.P.
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Its General
Partner
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By:
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/s/ Brooke
Coburn
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Name:
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Brooke
Coburn
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Title:
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Managing
Director
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APOLLO
GLOBAL, INC.
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By:
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/s/ Jeffrey
Langenbach
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Name:
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Jeffrey
Langenbach
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Title:
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President
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[Signature Page to Capital
Contribution Agreement]
CERTIFICATE OF
INCORPORATION
CERTIFICATE OF
INCORPORATION
OF
APOLLO GLOBAL, INC.
Apollo Global,
Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, does hereby
certify that:
1. The name
of the corporation is Apollo Global, Inc. The original Certificate
of Incorporation of the corporation was filed with the Secretary of
State of the State of Delaware on October 18, 2007.
2. This
Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Section 242 and
245 of the General Corporation Law of the State of Delaware by the
Board of Directors and stockholders of the corporation.
3. This
Amended and Restated Certificate of Incorporation restates and
integrates and amends the provisions of the corporation’s
original Certificate of Incorporation.
4. The text
of the original Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
The name of this
corporation is: APOLLO GLOBAL, INC.
The address of the
registered office of the corporation in the State of Delaware is
2711 Centreville Road, Suite 400, City of Wilmington, County
of New Castle, Delaware 19808. The name of its registered agent at
such address is Corporation Service Company.
The nature of the
business or 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 the State of Delaware.
The name of the
corporation’s incorporator is Peter S. Park, c/o Morgan Lewis
& Bockius LLP, One Market, Spear Street Tower, San Francisco,
California 94105.
The corporation is
authorized to issue two (2) classes of stock to be designated,
respectively, “Class A Common Stock” and
“Class B Common Stock”. The total number of shares
that the corporation is authorized to issue is 651,796 shares.
553,822 shares shall be Class A Common Stock, par value of
$0.001 per share and 97,974 shares shall be Class B Common
Stock, par value of $0.001 per share. The holders of the
Class A Common Stock and the holders of the Class B
Common Stock are entitled to one vote for each share of
Class A Common Stock and each share of Class B Common
Stock held at all meetings of the stockholders (and written actions
in lieu of meetings). Except as otherwise provided in
Article IX of this Certificate of Incorporation, the powers,
preferences, privileges, and relative participating, optional, or
other rights, and the qualifications, limitations, and restrictions
thereof of the holders of each of the Class A Common Stock and
the Class B Common Stock are identical.
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 General Corporation Law of
the State of Delaware, or (iv) for any transaction from which
the director derived any improper personal benefit. If the General
Corporation Law of the State of Delaware is hereafter 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 General Corporation Law of the State of
Delaware as so amended.
Any repeal or
modification of the foregoing provisions of this Article VI by
the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at
the time of such repeal or modification.
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 statute, and all rights conferred on
stockholders herein are granted subject to this
reservation.
Election of
directors need not be by written ballot unless the bylaws of the
corporation shall so provide.
The number of
directors which shall constitute the whole Board of Directors of
the corporation shall be eight (8). At each election of directors,
(i) the holders of a majority of the Class A Common
Stock, voting as a separate class, shall be entitled to elect six
(6) members of the Board of Directors (the “
Class A Common Stock Directors ”), and
(ii) the holders of a majority of the Class B Common
Stock, voting as a separate class, shall be entitled to elect two
(2) members of the Board of Directors (the
“Class B Common Stock Directors” ).
A director may be removed during their term of office, either with
or without cause, by, and only by, the affirmative vote or written
consent of the stockholders holding a majority of the specified
class of stock entitled to elect such director pursuant to this
Article IX. Any vacancies on the Board of Directors may be
filled by the stockholders holding the specified class of stock
entitled to vote upon the election of any director from which a
vacancy arose.
At all meetings of
the Board of Directors, a majority of the directors then in office
shall constitute a quorum for the transaction of business, and a
majority vote of the directors present at any meeting at which
there is a quorum shall be the act of the Board of the Directors,
except as may be otherwise specifically provided by the General
Corporation Law of the State of Delaware. Each Class A Common
Stock Director shall have two (2) votes and each Class B
Common Stock Director shall have one (1) vote on all matters
upon which the Board of Directors may vote or otherwise
approve.
Meetings of
stockholders of the corporation may be held within or without the
State of Delaware, as the bylaws of the corporation may provide.
The books of the corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the Board
of Directors of the corporation or in the bylaws of the
corporation.
Except as
otherwise provided in this Certificate of Incorporation or that
certain Amended and Restated Shareholders’ Agreement by and
among the corporation and certain stockholders dated on or around
July 28, 2009 (as amended to date), in furtherance and not in
limitation of the powers conferred by statute, the Board of
Directors of the corporation, is expressly authorized to make,
repeal, alter, amend and rescind any or all of the bylaws of the
corporation.
To the fullest
extent permitted by applicable law, the corporation is also
authorized to provide indemnification of (and advancement of
expenses to) such agents (and any other persons to which Delaware
law permits the corporation to provide indemnification) through
bylaw provisions, agreements with such agents or other persons,
vote of stockholders or disinterested directors or otherwise, in
excess of the indemnification and advancement otherwise permitted
by Section 145 of the General Corporation Law of the State of
Delaware, subject only to limits created by applicable Delaware law
(statutory or non-statutory), with respect to actions for breach of
duty to the corporation, its stockholders, and others.
Any repeal or
modification of any of the foregoing provisions of this
Article XII shall not adversely affect any right or protection
of a director, officer, agent or other person existing at the time
of, or increase the liability of any director of the corporation
with respect to any acts or omissions of such director, officer or
agent occurring prior to such repeal or modification.
IN WITNESS
WHEREOF, the Amended and Restated Certificate of Incorporation has
been signed this 28 day of July, 2009.
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/s/ Jeffrey
Langenbach
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Jeffrey
Langenbach
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Name
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President
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Title
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BYLAWS
OF
APOLLO GLOBAL, INC.
Section 1.
Registered Office . The registered office shall be at the
office of Corporation Service Company, 2711 Centreville Road,
Suite 400, City of Wilmington, County of New Castle, Delaware
19808.
Section 2.
Other Offices . The corporation may also have offices at
such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the
business of the corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1.
Annual Meeting . An annual meeting of the stockholders for
the election of directors shall be held at such place either within
or without the State of Delaware as shall be designated on an
annual basis by the Board of Directors and stated in the notice of
the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof. Any other proper business
may be transacted at the annual meeting.
Section 2.
Notice of Annual Meeting . Written notice of the annual
meeting stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the
meeting.
Section 3.
Voting List . The officer who has charge of the stock ledger
of the corporation shall prepare and make, or cause a third party
to prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is
present.
Section 4.
Special Meetings . Special meetings of the stockholders of
the corporation, for any purpose or purposes, unless otherwise
prescribed by statute or by the Certificate of
Incorporation,
shall be called by the President or Secretary at the request in
writing of a majority of the members of the Board of Directors or
at the request in writing of stockholders owning at least ten (10%)
of the total voting power of all outstanding shares of stock of the
corporation then entitled to vote, and may not be called absent
such a request. Such request shall state the purpose or purposes of
the proposed meeting.
Section 5.
Notice of Special Meetings . As soon as reasonably
practicable after receipt of a request as provided in
Section 4 of this Article II, written notice of a special
meeting, stating the place, date (which shall be not less than ten
nor more than sixty days from the date of the notice) and hour of
the special meeting and the purpose or purposes for which the
special meeting is called, shall be given to each stockholder
entitled to vote at such special meeting.
Section 6.
Scope of Business at Special Meeting . Business transacted
at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 7.
Quorum . The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of
the stockholders for the transaction of business, except as
otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the chairman of the
meeting or the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting as provided in Section 5
of this Article II.
Section 8.
Qualifications to Vote . The stockholders of record on the
books of the corporation at the close of business on the record
date as determined by the Board of Directors and only such
stockholders shall be entitled to vote at any meeting of
stockholders or any adjournment thereof.
Section 9.
Record Date . The Board of Directors may fix a record date
for the determination of the stockholders entitled to notice of or
to vote at any stockholders’ meeting and at any adjournment
thereof, or to express consent to corporate action in writing
without a meeting, or to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action. The record
date shall not be more than sixty nor less than ten days before the
date of such meeting, and not more than sixty days prior to any
other action. If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is
given, or if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to
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any adjournment
of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 10.
Action at Meetings . When a quorum is present at any
meeting, the vote of the holders of a majority of the shares of
stock having voting power present in person or represented by proxy
shall decide any question brought before such meeting, unless the
question is one upon which by express provision of applicable law
or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and
control the decision of such question.
Section 11.
Voting and Proxies . Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held
by such stockholder, but no proxy shall be voted on after three
years from its date, unless the proxy provides for a longer period.
Each proxy shall be revocable unless expressly provided therein to
be irrevocable and unless it is coupled with an interest sufficient
in law to support an irrevocable power.
Section 12.
Action by Stockholders Without a Meeting . Unless otherwise
provided in the Certificate of Incorporation, any action required
to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or
special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the
corporation by delivery to its registered office in the State of
Delaware (by hand or by certified or registered mail, return
receipt requested), to its principal place of business, or to an
officer or agent of the corporation having custody of the book in
which proceedings of meetings of stockholders are recorded,
provided, however, that action by written consent to elect
directors, if less than unanimous, shall be in lieu of holding an
annual meeting only if all the directorships to which directors
could be elected at an annual meeting held at the effective time of
such action are vacant and are filled by such action. Prompt notice
of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who
have not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting if
the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take the
action were delivered to the corporation by delivery to its
registered office in the State of Delaware (by hand or by certified
or registered mail, return receipt requested), to its principal
place of business, or to an officer or agent of the corporation
having custody of the book in which proceedings or meetings of
stockholders are recorded.
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Section 1.
Powers . The business of the corporation shall be managed by
or under the direction of its Board of Directors, which may
exercise all such powers of the corporation and do all such lawful
acts and things as are not by applicable law or by the Certificate
of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Section 2.
Number; Election; Tenure and Qualification . The number of
directors which shall constitute the whole board shall be eight
(8). Directors need not be stockholders. Except as provided in
Section 3 of this Article III, the directors shall be
elected at the annual meeting of the stockholders in accordance
with Article IX of the Certificate of Incorporation and each
director elected shall hold office until his successor is elected
and qualified unless he shall resign, become disqualified,
disabled, or otherwise removed.
Section 3.
Vacancies . In the event that any representative designated
pursuant to Section 2 of this Article III ceases to serve
as a member of the Board of Directors during his term of office for
any reason, the resulting vacancy on the Board of Directors will be
filled in accordance with Article IX of the Certificate of
Incorporation. The directors so chosen shall serve until the next
annual election and until their successors are duly elected and
shall qualify, unless sooner displaced.
Section 4.
Location of Meetings . The Board of Directors of the
corporation may hold meetings, both regular and special, either
within or without the State of Delaware.
Section 5.
Meeting of Newly Elected Board of Directors . The first
meeting of each newly elected Board of Directors shall be held
immediately following the annual meeting of stockholders and no
notice of such meeting shall be necessary to the newly elected
directors in order to legally constitute the meeting, provided a
quorum shall be present. In the event such meeting is not held at
such time, the meeting may be held at such time and place as shall
be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6.
Regular Meetings . Regular meetings of the Board of
Directors may be held without notice at such time and at such place
as shall from time to time be determined by the Board of Directors;
provided that any director who is absent when such a determination
is made shall be given notice of such location.
Section 7.
Special Meetings . Special meetings of the Board of
Directors may be called by the President on two days’ notice
to each director by mail, nationally recognized overnight courier
service or facsimile; special meetings shall be called by the
President or Secretary in a like manner and on like notice on the
written request of two directors unless the Board of Directors
consists of only one director, in which case special meetings shall
be called by the President or Secretary in a like manner and on
like notice on the written request of the sole director. Notice may
be waived in accordance with Section 229 of the General
Corporation Law of the State of Delaware.
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Section 8.
Quorum and Action at Meetings . At all meetings of the Board
of Directors, a majority of the directors then in office shall
constitute a quorum for the transaction of business, and an act
approved by a majority vote of the directors present at any meeting
at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by
statute or by the Certificate of Incorporation and with the
Class A Common Stock Directors each having two (2) votes
and the Class B Common Stock Directors each having one
(1) vote. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be
present.
Section 9.
Action Without a Meeting . Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a
meeting, if all members of the Board of Directors or committee, as
the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 10.
Telephonic Meeting . Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board
of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors,
or any committee, by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear and communicate with each
other, and such participation in a meeting shall constitute
presence in person at the meeting.
Section 11.
Committees . The Board of Directors may, by resolution
passed by a majority vote of the whole board, designate one or more
committees. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
Section 12.
Committee Authority . Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee
shall have the power or authority in reference to
(a) approving, adopting or recommending to the stockholders,
any action or matter expressly required by the General Corporation
Law of the State of Delaware to be submitted to stockholders for
approval, or (b) adopting, amending or repealing any Bylaw of
the corporation. Such committee or committees shall have such name
or names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section 13.
Committee Minutes . Each committee shall keep regular
minutes of its meetings and report the same to the Board of
Directors when required to do so by the Board of
Directors.
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Section 14.
Directors Compensation . Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of
directors. The directors shall be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending
committee meetings.
Section 15.
Resignation . Any director or officer of the corporation may
resign at any time. Each such resignation shall be made in writing
and shall take effect at the time specified therein, or, if no time
is specified, at the time of its receipt by either the Board of
Directors, the President or the Secretary. The acceptance of a
resignation shall not be necessary to make it effective unless
expressly so provided in the resignation.
Section 16.
Removal . Unless otherwise restricted by the Certificate of
Incorporation, these Bylaws or applicable law, (a) the removal
from the Board of Directors (with or without cause) of any of the
Class A Common Stock Directors shall be at the written request
of those stockholders holding a majority of the outstanding
Class A Common Stock, and only upon such request and under no
other circumstances, and (b) the removal from the Board of
Directors (with or without cause) of any of the Class B Common
Stock Directors shall be at the written request of those
stockholders holding a majority of the outstanding Class B
Common Stock, and only upon such request and under no other
circumstances, provided that the stockholders agree to take such
action as is necessary to promptly amend the Certificate of
Incorporation to provide that the holders of a majority of the
Class B Common Stock, voting as a separate class, shall be
entitled to elect one (1) member of the Board of Directors
after any date that Carlyle Venture Partners III, L.P. and its
Affiliates do not own, in the aggregate, either (i) ten
percent (10%) or more of the issued and outstanding Shareholder
Shares or (ii) shares of the Company Stock with a Fair Market
Value of one hundred million dollars ($100,000,000) or
more.
Section 1.
Notice to Directors and Stockholders . Whenever, under the
provisions of the statutes or of the Certificate of Incorporation
or of these Bylaws, notice is required to be given to any director
or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail or nationally
recognized overnight courier, addressed to such director or
stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be
deemed to be given five days after the same shall be deposited in
the United States mail or one day after delivery to a nationally
recognized overnight courier. An affidavit of the Secretary or an
Assistant Secretary or of the transfer agent of the corporation
that the notice has been given shall in the absence of fraud, be
prima facie evidence of the facts stated therein. Notice to
directors may also be given by telephone or facsimile (with
confirmation of receipt).
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Section 2.
Waiver . Whenever any notice is required to be given under
the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent
thereto. The written waiver need not specify the business to be
transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors, or members of a committee of
directors. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting at the beginning of
the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at the meeting is
not a waiver of any right to object to the consideration of matters
required by the General Corporation Law of the State of Delaware to
be included in the notice of the meeting but not so included, if
such objection is expressly made at the meeting.
Section 1.
Enumeration . The officers of the corporation shall be
chosen by the Board of Directors and shall include a President, a
Secretary, a Treasurer or Chief Financial Officer and such other
officers with such other titles as the Board of Directors shall
determine. The Board of Directors may elect from among its members
a Chairman or Chairmen of the Board and a Vice Chairman of the
Board. The Board of Directors may also choose one or more
Vice-Presidents, Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these Bylaws otherwise
provide.
Section 2.
Election . The Board of Directors at its first meeting after
each annual meeting of stockholders shall elect a President, a
Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine.
Section 3.
Appointment of Other Agents . The Board of Directors may
appoint such other officers and agents as it shall deem necessary,
who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to
time by the Board of Directors.
Section 4.
Compensation . The salaries of all officers of the
corporation shall be fixed by the Board of Directors or a committee
thereof. The salaries of agents of the corporation shall, unless
fixed by the Board of Directors, be fixed by the President or any
Vice-President of the corporation.
Section 5.
Tenure . The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected
or appointed by the Board of Directors may be removed at any time
by the affirmative vote of a majority of the directors of the Board
of Directors. Any vacancy occurring in any office of the
corporation shall be filled by the Board of Directors.
Section 6.
Chairman of the Board and Vice-Chairman of the Board . The
Chairman of the Board, if any, shall preside at all meetings of the
Board of Directors and of the stockholders at which the Chairman
shall be present. The Chairman shall have and may
exercise
7
such powers as
are, from time to time, assigned to the Chairman by the Board of
Directors and as may be provided by law. In the absence of the
Chairman of the Board, the Vice Chairman of the Board, if any,
shall preside at all meetings of the Board of Directors and of the
stockholders at which the Vice Chairman shall be present. The Vice
Chairman shall have and may exercise such powers as are, from time
to time, assigned to such person by the Board of Directors and as
may be provided by law.
Section 7.
President . The President shall be the Chief Executive
Officer of the corporation unless such title is assigned to another
officer of the corporation; in the absence of a Chairman and Vice
Chairman of the Board, the President shall preside as the chairman
of meetings of the stockholders and the Board of Directors; and the
President shall have general and active management of the business
of the corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. The President or
any Vice President shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation,
except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation.
Section 8.
Vice-President . In the absence of the President or in the
event of the President’s inability or refusal to act, the
Vice-President, if any (or in the event there be more than one
Vice-President, the Vice-Presidents in the order designated by the
Board of Directors, or in the absence of any designation, then in
the order of their election) shall perform the duties of the
President, and when so acting shall have all the powers of and be
subject to all the restrictions upon the President. The
Vice-President shall perform such other duties and have such other
powers as the Board of Directors may from time to time
prescribe.
Section 9.
Secretary . The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record
all the proceedings of the meetings of the corporation and of the
Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The
Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the
Board of Directors or President, under whose supervision the
Secretary shall be subject. The Secretary shall have custody of the
corporate seal of the corporation and the Secretary, or an
Assistant Secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by
the Secretary’s signature or by the signature of such
Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the corporation
and to attest the affixing by such officer’s
signature.
Section 10.
Assistant Secretary . The Assistant Secretary, or if there
be more than one, the Assistant Secretaries in the order determined
by the Board of Directors (or if there be no such determination,
then in the order of their election) shall, in the absence of the
Secretary or in the event of the Secretary’s inability or
refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time
prescribe.
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Section 11.
Chief Financial Officer . The Chief Financial Officer may
also be designated by the alternate title of
“Treasurer.” The Chief Financial Officer shall have the
custody of all moneys and securities of the Corporation and shall
keep regular books of account. Such officer shall disburse funds of
the Corporation in payment of the just demands against the
Corporation, or as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the
Board of Directors from time to time as may be required of such
officer, an account of all transactions as Chief Financial Officer
and of the financial condition of the Corporation. Such officer
shall perform all duties incident to such office or that are
properly required by the President or by the Board of Directors. If
required by the Board of Directors, the Chief Financial Officer
shall give the corporation a bond (which shall be renewed every six
years) in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance
of the duties of such officer’s office and for the
restoration to the corporation, in case of such officer’s
death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind
in such officer’s possession or control belonging to the
corporation.
Section 12.
Assistant Treasurer . The Assistant Treasurer or the
Assistant Treasurers, in the order of their seniority, shall, in
the absence or disability of the Chief Financial Officer, or in the
event of such officer’s refusal to act, perform the duties
and exercise the powers of the Chief Financial Officer, and shall
have such powers and discharge such duties as may be assigned from
time to time by the President or by the Board of
Directors.
ARTICLE VI.
CAPITAL STOCK
Section 1.
Certificates . The shares of the corporation shall be
represented by a certificate. Certificates shall be signed by, or
in the name of the corporation by, (a) the Chairman of the
Board, the Vice-Chairman of the Board, the President or a
Vice-President, and (b) the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary, certifying the number of
shares of a particular class owned by such stockholder in the
corporation. Certificates may be issued for partly paid shares and
in such case upon the face or back of the certificates issued to
represent any such partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall
be specified.
Section 2.
Signature . Any of or all of the signatures on a certificate
may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by
the corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of
issue.
Section 3.
Lost Certificates . The Board of Directors may direct a new
certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue
of a new certificate or certificates, the Board of Directors may,
in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost,
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stolen or
destroyed certificate or certificates, or such owner’s legal
representative, to indemnify the corporation against any claim that
may be made against the corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 4.
Transfer of Stock . Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon
its books.
Section 5.
Record Date . In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholder or any adjournment thereof, or to express consent to
corporate action in writing withou
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