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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
LINC Capital, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 06-0850149
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
303 East Wacker Drive, Suite 1000, Chicago, Illinois 60601
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(Address of principal executive offices) (Zip Code)
This Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1), please check the
following box. [_]
This Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction __(x)(2), please check the following box. [_]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which each class is to registered
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None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $0.001 par value
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
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Common Stock, $0.001 Par Value
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The information included under the caption "Description of Capital
Stock" contained in the Amendment No. 2 to Registration Statement on Form S-1
(File No. 333-34729) of LINC Capital, Inc. filed with the Securities and
Exchange Commission on October 20, 1997 is hereby incorporated by reference. In
addition, the description of the Common Stock, par value $0.001 per share,
included under the caption "Description of Capital Stock" in any Prospectus
relating to such Registration Statement filed with the Commission pursuant to
any subsequent amendment of such Registration Statement or pursuant to Rule
424(b) under the Securities Act of 1933, as amended, shall be deemed to be
incorporated by reference herein.
Item 2. Exhibits
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Exhibit No. Description
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1.1 Form of Amended and Restated Certificate of Incorporation of the
Company, to be filed with the Secretary of State of the State of Delaware prior
to effectiveness of this Registration Statement.
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SIGNATURES
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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.
LINC CAPITAL, INC.
By: /s/ Martin E. Zimmerman
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Name: Martin E. Zimmerman
Its: Chief Executive Officer
Date: November 3, 1997
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EXHIBIT 1.1
AMENDED AND RESTATED
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CERTIFICATE OF INCORPORATION
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OF
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LINC CAPITAL, INC.
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ARTICLE ONE
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The name of the Corporation is LINC Capital, Inc.
ARTICLE TWO
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The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware, 19801, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company. The registered office and/or
registered agent of the Corporation may be changed from time to time by action
of the board of directors.
ARTICLE THREE
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The nature of the business or purposes to be conducted or promoted 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 "Delaware
General Corporation Law") either alone or with others through wholly or
partially owned subsidiaries, as a partner (limited or general) in any
partnership, as a member in a limited liability company, as a joint venturer in
any joint venture, or otherwise.
ARTICLE FOUR
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SECTION 1. The aggregate number of shares of stock which the
Corporation has authority to issue is 16,000,000, consisting of 1,000,000 shares
of Series Preferred Stock, par value $.01 per share (the "Series Preferred
Stock"), and 15,000,000 shares of Common Stock, par value $.001 per share (the
"Common Stock"). All of such shares shall be issued as fully paid and non-
assessable shares, and the holder thereof shall not be liable for any further
payments in respect thereof.
SECTION 2. The preferences, limitations, designations and relative
rights of the shares of each class and the qualifications, limitations or
restrictions thereof shall be as follows:
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A. Series Preferred Stock.
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1. Authorization; Series; Provisions.
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(a) The Board of Directors of the Corporation is authorized, subject
to limitations prescribed by law and the provisions of this Article Four, to
provide for the issuance of shares of the Series Preferred Stock in series, and
by filing a certificate pursuant to the General Corporation Law of the State of
Delaware, to establish from time to time the number of shares to be included in
each such series and to fix the designations, powers, preferences and rights of
the shares of each such series and the qualifications, limitations or
restrictions thereof.
(b) The Series Preferred Stock may be issued from time to time in one
or more series, the shares of each series to have such powers, designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are stated and expressed
herein or in a resolution or resolutions providing for the issuance of such
series, adopted by the Board of Directors as hereinafter provided.
(c) Authority is hereby expressly granted to the Board of Directors,
subject to the provisions of this Section 2, to authorize the issuance of one or
more series of Series Preferred Stock, and with respect to each such series to
fix by resolution or resolutions providing for the issuance of such series:
(i) the maximum number of shares to constitute such series and the
distinctive designation thereof;
(ii) whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms of
such voting rights;
(iii) the dividend rate, if any, on the shares of such series, the
conditions and dates upon which such dividends shall be payable, the
preference or relation which such dividends shall bear to the dividends
payable on any other class or classes or on any other series of capital
stock, and whether such dividends shall be cumulative or noncumulative;
(iv) whether the shares of such series shall be subject to redemption
by the Corporation and, if made subject to redemption, the times, prices
and other terms and conditions of such redemption;
(v) the rights of the holders of shares of such series upon the
liquidation, dissolution or winding up of the Corporation;
(vi) whether or not the shares of such series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of
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the shares of such series for retirement or to other corporate purposes and
the terms and provisions relative to the operation thereof;
(vii) whether or not the shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or classes,
or of any other series of the same class, and if so convertible or
exchangeable, the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same;
(viii) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payment of
dividends or making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, Common Stock or any
other class or classes of stock of the Corporation ranking junior to the
shares of such series either as to dividends or upon liquidation;
(ix) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock
(including additional shares of such series or of any other series or of
any other class) ranking on a parity with or prior to the shares of such
series as to dividends or distribution of assets on liquidation,
dissolution or winding up; and
(x) any other preference and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof as shall not be inconsistent with this Section 2.
2. Series Identical; Rank. All shares of any one series of
Series Preferred Stock shall be identical with each other in all respects,
except that shares of any one series issued at different times may differ as to
the dates from which dividends, if any, thereon shall be cumulative; and all
series shall rank equally and be identical in all respects, except as permitted
by the foregoing provisions of paragraph 1(c) hereof; and all shares of Series
Preferred Stock shall rank senior to the Common Stock both as to dividends and
upon liquidation.
3. Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, before any payment or distribution of the assets
of the Corporation (whether capital or surplus) shall be made to or set apart
for the holders of any class or classes of stock of the Corporation ranking
junior to the Series Preferred Stock upon liquidation, the holders of the shares
of the Series Preferred Stock shall be entitled to receive payment at the rate
fixed herein or in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series, plus (if dividends on shares
of such series of Series Preferred Stock shall be cumulative) an amount equal to
all dividends (whether or not earned or declared) accumulated to the date of
final distribution to such holders; but they shall be entitled to no further
payment. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation or proceeds thereof, distributable
among the holders of the shares of the Series Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid, then such assets,
or the proceeds thereof, shall be distributed among such holders ratably in
accordance with the respective amounts which would be payable on such shares if
all amounts payable thereon were paid in full.
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4. Voting Rights. Except as shall be otherwise stated and expressed
herein or in the resolution or resolutions of the Board of Directors providing
for the issue of any series and except as otherwise required by the laws of the
State of Delaware, the holders of shares of Series Preferred Stock shall have,
with respect to such shares, no right or power to vote on any question or in any
proceeding or to be represented at, or to receive notice of, any meeting of
stockholders.
5. Reacquired Shares. Shares of any Series Preferred Stock which
shall be issued and thereafter acquired by the Corporation through purchase,
redemption, exchange, conversion or otherwise shall return to the status of
authorized but unissued Series Preferred Stock unless otherwise provided in the
resolution or resolutions of the Board of Directors.
6. Increase/Decrease in Authorized Shares of a Series. Unless
otherwise provided in the resolution or resolutions of the Board of Directors
providing for the issuance thereof, the number of authorized shares of stock of
any such series may be increased or decreased (but not below the number of
shares thereof outstanding) by resolution or resolutions of the Board of Direc
tors. In case the number of shares of any such series of Series Preferred Stock
shall be decreased, the shares representing such decrease shall, unless
otherwise provided in the resolution or resolutions of the Board of Directors
providing for the issuance thereof, resume the status of authorized but unissued
Series Preferred Stock, undesignated as to series.
B. Common Stock.
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Except as shall otherwise be stated herein or as otherwise required by
applicable law, all shares of Common Stock shall be identical in all respects
and shall entitle the holders thereof to the same rights and privileges, subject
to the same qualifications, limitations and restrictions.
1. Voting Rights. Except as otherwise provided in this Section 2B
of Article Four or as otherwise required by applicable law, holders of Common
Stock shall be entitled to one vote per share on all matters to be voted on by
the stockholders of the Corporation.
2. Dividends. Subject to the rights of each series of the Series
Preferred Stock, dividends may be declared and paid or set apart for payment
upon the Common Stock out of any assets or funds of the Corporation legally
available for the payment of dividends, and all holders of Common Stock shall be
entitled to participate in such dividends ratably on a per share basis.
3. Liquidation. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled in accordance with Section 2A of
Article Four, the terms of any outstanding Series Preferred Stock and applicable
law, or an amount sufficient to pay the aggregate amount to which the holders of
the Series Preferred Stock of each series shall be entitled shall have been
deposited with a bank or trust company having capital, surplus and undivided
profits of at least Twenty-Five Million Dollars ($25,000,000) as a trust fund
for the benefit of the holders of such Series Preferred Stock, the remaining net
assets of the Corporation shall be distributed pro rata to the holders of the
Common Stock, to the exclusion of the holders of such Series Preferred Stock.
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C. General Provisions
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1. Nonliquidating Events. A consolidation or merger of the
Corporation with or into another corporation or corporations or a sale, whether
for cash, shares of stock, securities or properties, or any combination thereof,
of all or substantially all of the assets of the Corporation shall not be deemed
or construed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Article Four.
2. No Preemptive Rights. No holder of Series Preferred Stock or
Common Stock of the Corporation shall be entitled, as such, as a matter of
right, to subscribe for or purchase any part of any new or additional issue of
stock of any class or series whatsoever or of securities convertible into stock
of any class whatsoever, whether now or hereafter authorized and whether issued
for cash or other consideration, or by way of dividend.
ARTICLE FIVE
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The Corporation is to have perpetual existence.
ARTICLE SIX
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The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, and the directors need not be
elected by ballot unless required by the By-laws of the Corporation. In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors of the Corporation is expressly authorized to make, alter, amend,
change, add to or repeal the By-laws of the Corporation.
ARTICLE SEVEN
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Meetings of stockholders may be held within or without the State of
Delaware, as the By-laws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors or in the By-laws
of the Corporation. The Board of Directors shall from time to time decide
whether and to what extent and at what times and under what conditions and
requirements the accounts and books of the Corporation, or any of them, except
the stock book, shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any books or documents of the
Corporation except as conferred by the laws of the State of Delaware or as
authorized by the Board of Directors.
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ARTICLE EIGHT
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Subject to the rights of the holders of any series of Series Preferred
Stock , from and after the date on which the Common Stock of the Corporation is
registered pursuant to the Securities Exchange Act of 1934, as amended, (A) 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 in lieu thereof by any consent in writing by
such stockholders, and (B) special meetings of stockholders of the Corporation
may be called only by either (i) the chairman of the board, (ii) the president,
(iii) any vice president, (iv) the secretary or (v) any assistant secretary and
shall be called by any such officer at the request in writing of a majority of
the Board of Directors or at the request in writing of stockholders owning a
majority of the capital stock of the Corporation issued and outstanding and
entitled to vote.
ARTICLE NINE
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The number of directors which shall constitute the whole board shall
be such as from time to time shall be fixed by the Board of Directors in the
manner as provided in the By-laws, except that such number shall not be less
than one (1) nor more than fifteen (15), the exact number to be determined by
resolution adopted by affirmative vote of a majority of the Board of Directors.
Vacancies and newly created directorships resulting from any increase in the
number of directors may be filled only by the affirmative vote of the majority
of the Board of Directors then in office, although less than 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. Except to the extent prohibited by law, the Board
of Directors shall have the right (which, to the extent exercised, shall be
exclusive) to establish the rights, powers, duties, rules and procedures that
from time to time shall govern the Board of Directors and each of its members,
including without limitation the vote required for any action by the Board of
Directors, and that from time to time shall affect the directors' power to
manage the business and affairs of the Corporation; and no by-law shall be
adopted by stockholders which shall impair or impede the implementation of the
foregoing.
ARTICLE TEN
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Article Eight, Article Nine and this Article Ten of this Restated
Certificate of Incorporation and Sections 2 and 11 of Article II, Sections 2, 3
and 4 of Article III and Article V of the By-laws of the Corporation shall not
be altered, amended or repealed by, and no provision inconsistent therewith
shall be adopted by, the stockholders without the affirmative vote of the
holders of at least 80% of the Common Stock, voting together as a single class.
ARTICLE ELEVEN
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To the fullest extent permitted by the Delaware General Corporation
Law as it now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that
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such amendment permits the Corporation to provide broader indemnification rights
than permitted prior thereto), no director of the Corporation shall be liable to
the Corporation or its stockholders for monetary damages arising from a breach
of fiduciary duty owed to the Corporation or its stockholders. Any repeal or
modification of the foregoing paragraph 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.
ARTICLE TWELVE
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The Corporation expressly elects to be governed by Section 203 of the
Delaware General Corporation Law.
ARTICLE THIRTEEN
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The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation in the manner now or hereafter prescribed herein and by the laws
of the State of Delaware, and all rights conferred upon stockholders herein are
granted subject to this reservation.
