SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION
12 (B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934
________________
FINANCIAL SERVICES ACQUISITION CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 59-3262958
(State of incorporation or (I.R.S. Employer
organization) Identification No.)
TWO WORLD TRADE CENTER
SUITE 8400
NEW YORK, NEW YORK 10048
(Address of principal executive offices) (Zip Code)
________________
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
NONE NONE
Securities to be registered pursuant to Section 12 (g) of the Act:
SERIES B REDEEMABLE COMMON STOCK PURCHASE WARRANTS
(Title of Class)
ITEM 1. DESCRIPTION OF REGISTRANT S SECURITIES TO BE REGISTERED
The securities being registered are the Series B
Redeemable Common Stock Purchase Warrants of the Registrant
(the "Warrants"). Each Warrant, subject to certain
adjustments under certain circumstances, permits the holder
thereof to purchase one share of the Registrant's Common
Stock, $.001 par value ("Common Stock"), for $5.00. The
Warrants expire on November 30, 2001 and are redeemable by
the Registrant, in whole but not in part, at a price of
$.01 per warrant upon not less than 30 days' prior written
notice to the holders thereof, provided that the last sale
price of Common Stock has been at least $8.50 per share for
the 20 consecutive trading days ending on the third day
prior to the day on which notice is given. The Registrant
has applied to list the Warrants (as well as the Common
Stock and the Registrant's existing series of redeemable
common stock purchase warrants, which have the same exercise
price, expiration date and redemption terms as the Warrants)
on the Nasdaq National Market.
The foregoing description of the Warrants is qualified
in its entirety by the description of the Warrants contained
under the caption "Description of FSAC Capital Stock --
General," " -- FSAC Warrants" and "-- Merger Warrants" on
pages 80-82 of the Registrant's Rule 424(b)(3) Prospectus
(the "Prospectus") relating to the Registrant's Registration
Statement on Form S-4 (No. 333-06753) (the "Registration
Statement") with respect to the Warrants and certain other
securities of the Registrant, which description is hereby
incorporated herein by reference.
ITEM 2. EXHIBITS
Exhibit 1. Form of Warrant Certificate (incorporated by
reference to Annex II to the Prospectus)
Exhibit 2. Warrant Agreement, dated June 5, 1996,
between Continental Stock Transfer & Trust
Company, as warrant agent, and the Registrant
(incorporated by reference to Exhibit 4.3 to
the Registration Statement)
Exhibit 3. Amended and Restated Certificate of
Incorporation of the Registrant
Exhibit 4. By-laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registration
Statement on Form S-1 (No. 33-85346) of the
Registrant)
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly
caused this Registration Statement to be signed on its
behalf by the undersigned, thereto duly authorized.
FINANCIAL SERVICES ACQUISITION
CORPORATION
By:/s/ Gilbert Scharf
_______________________________
Name: Gilbert Scharf
Title: Chairman of the Board,
President and
Chief Executive Officer
October 29, 1996
RESTATED CERTIFICATE OF INCORPORATION
OF
FINANCIAL SERVICES ACQUISITION CORPORATION
Pursuant to Section 245 of the General Corporation Law
of the State of Delaware
FINANCIAL SERVICES ACQUISITION CORPORATION, a corporation
organized and existing under and by virtue of the General Corporation Law
of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
1. The name of the Corporation is Financial Services
Acquisition Corporation.
2. The original Certificate of Incorporation of the
Corporation was filed under the name Financial Services Acquisition
Corporation with the Secretary of State of the State of Delaware on August
18, 1994.
3. This Restated Certificate of Incorporation only restates
and integrates and does not further amend the provisions of the
Corporation's Certificate of Incorporation as heretofore amended or
supplemented, and, except as permitted by Section 245(c) of the General
Corporation Law of the State of Delaware, there is no discrepancy between
those provisions and the provisions of this Restated Certificate of
Incorporation.
4. This Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Section 245 of the General
Corporation Law of the State of Delaware.
5. The text of the Restated Certificate of Incorporation of
Financial Services Acquisition Corporation is set forth in full immediately
below.
FIRST: The name of the Corporation is Financial Services
Acquisition Corporation.
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle 19801. The name of the
Corporation's registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation shall be 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 "GCL").
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is 31,000,000, of
which 30,000,000 shares shall be Common Stock of the par value of $0.001
per share and 1,000,000 shares shall be Preferred Stock of the par value of
$0.001 per share.
A. Preferred Stock. The Board of Directors is expressly
authorized to provide for the issue of all or any shares of the Preferred
Stock, in one or more series, and to fix for each such series such voting
powers, full or limited, and such designations, preferences and relative,
participating, optional or other special rights and such qualifications,
limitations or restrictions thereof as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for
the issue of such series (a "Preferred Stock Designation") and as may be
permitted by the GCL. The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of
the voting power of all of the then outstanding shares of the capital stock
of the Corporation entitled to vote generally in the election of directors
(the "Voting Stock"), voting together as a single class, without a separate
vote of the holders of the Preferred Stock, or any series thereof, unless a
vote of any such holders is required pursuant to any Preferred Stock
Designation.
B. Common Stock. Except as otherwise required by law or as
otherwise provided in any Preferred Stock Designation, the holders of the
Common Stock shall exclusively possess all voting power and each share of
Common Stock shall have one vote.
FIFTH: [Omitted pursuant to GCL Section 245(c)]
SIXTH: A. The business of the Corporation shall be managed by
or under the direction of its Board of Directors, which shall consist of
not less than three nor more than twelve directors, the exact number of
directors to be determined from time to time by resolution adopted by
affirmative vote of a majority of the entire Board of Directors. The
directors shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire Board of
Directors. Initially, the number of directors shall be eight, with two
Class I directors elected for a one-year term, three Class II directors
elected for a two-year term, and three Class III directors elected for a
three-year term. At each succeeding annual meeting of stockholders
beginning in 1997, successors to the class of directors whose term expires
at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of
that class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director shall hold office
until the annual meeting of the stockholders for the year in which his or
her term expires and until his or her successor shall be elected and
qualified, subject, however, to prior death, resignation, retirement or
removal from office for cause. Except as the GCL may otherwise require, any
vacancy on the Board of Directors that results from an increase in the
authorized number of directors or any other vacancy occurring in the Board
of Directors (including any unfilled vacancy resulting from the removal of
any director for cause) may be filled by a majority of the remaining
directors then in office, although less than a quorum, or by a sole
remaining director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining
term as that of his predecessor or, if such director has no predecessor, as
that of the class of directors to which such director has been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
series of Preferred Stock issued by the Corporation shall have the right,
voting separately by series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies
and other features of such directorships shall be governed by the terms of
this Certificate of Incorporation or any Preferred Stock Designation
pursuant to Article FOURTH or as may be permitted by the GCL, and such
directors so elected shall not be divided into classes pursuant to this
Article SIXTH unless expressly provided by such terms.
B. Subject to the rights of the holders of shares of any
series of Preferred Stock to elect additional directors under specified
circumstances or to consent to actions taken by the Corporation which
specifically require the approval of such holders, any action required or
permitted to be taken by the stockholders of the Corporation must be
effected at an annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing in lieu of a meeting of
such stockholders.
C. Subject to the rights of the holders of any class or
series of Preferred Stock, and notwithstanding anything to the contrary in
the by-laws of the Corporation, special meetings of the Corporation may be
called only by the Chairman of the Board, the President of the Corporation
or by the affirmative vote of a majority of the members of the Board of
Directors.
D. Notwithstanding any other provision of this Certificate of
Incorporation or the by-laws of the Corporation, the affirmative vote of
the holders of record of shares of Voting Stock representing at least
eighty percent (80%) of the votes entitled to be cast by holders of all the
then outstanding shares of Voting Stock, voting together as a single class,
without a separate vote of the holders of the Preferred Stock, or any
series thereof, unless a vote of any such holders is required pursuant to
any Preferred Stock Designation, shall be required to alter, amend or
repeal this Article SIXTH or to adopt any provision inconsistent herewith.
SEVENTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of the
Corporation, and for further definition, limitation and regulation of the
powers of the Corporation and of its directors and stockholders:
A. Election of directors need not be by ballot unless the
by-laws of the Corporation so provide.
B. The Board of Directors shall have the power, without the
assent or vote of the stockholders, to make, alter, amend, change, add to
or repeal the by-laws of the Corporation as provided in the by-laws of the
Corporation.
C. The directors in their discretion may submit any contract
or act for approval or ratification at any annual meting of the
stockholders or at any meeting of the stockholders called for the purpose
of considering any such act or contract, and any contract or act that shall
be approved or be ratified by the vote of the holders of a majority of the
stock of the Corporation which is represented in person or by proxy at such
meeting and entitled to vote thereat (provided that a lawful quorum of
stockholders be there represented in person or by proxy) shall be as valid
and binding upon the Corporation and upon all the stockholders as though it
had been approved or ratified by every stockholder of the Corporation,
whether or not the contract or act would otherwise be open to legal attack
because of directors' interests, or for any other reason.
D. In addition to the powers and authorities hereinbefore or
by statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this Certificate of
Incorporation, and to any by-laws from time to time made by the
stockholders; provided, however, that no by-law so made shall invalidate
any prior act of the directors which would have been valid if such by-law
had not been made.
EIGHTH: A. 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 directors' duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the GCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the GCL is amended to authorize
corporate action, further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the GCL, as so
amended. Any repeal or modification of this paragraph A by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation with respect to events occurring prior to the
time of such repeal or modification.
B. The Corporation, to the full extent permitted by Section
145 of the GCL, as amended from time to time, shall indemnify all persons
whom it may indemnify pursuant thereto. Expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding for which such
officer or director may be entitled to indemnification hereunder shall be
paid by the Corporation in advance of the final deposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized hereby.
NINTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or
between this Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the
application in summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of Title
8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under the
provisions of Section 279 of Title 8 of the Delaware Code order a meeting
of the creditors or class of creditors, and/or of the stockholders or class
of stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case
may be, agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or arrangement, the
said compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
IN WITNESS WHEREOF, the undersigned has signed this Restated
Certificate of Incorporation and affirmed that this Restated Certificate of
Incorporation is the act and deed of the Corporation and the facts stated
herein are true.
Date: October 28, 1996
/s/ Gilbert Scharf
-----------------------------------
Gilbert Scharf,
Chairman of the Board, Chief Executive
Officer and President
