Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Wci Communities, Inc. Etal 272 1.46M
2: EX-1.1 Purchase Agreement 50 199K
3: EX-3.1 Certificate of Inc.: Wci Communities as Amended 19 73K
12: EX-3.10 C.O.I.: Wi Ultracorp of Florida, Inc. 1 29K
13: EX-3.11 A.O.I.: Bay Colony of Naples, Inc. 2 32K
14: EX-3.12 A.O.I.: Bay Colony Realty Associates, Inc. 1 26K
15: EX-3.13 A.O.I.: Communities Amenities, Inc. 3 32K
16: EX-3.14 A.O.I.: Communities Home Builders, Inc. 3 32K
17: EX-3.15 A.O.I.: Coral Ridge Communities, Inc. 4 37K
18: EX-3.16 A.O.I.: Coral Ridge Properties, Inc. 7 46K
19: EX-3.17 A.O.I.: Coral Ridge Realty, Inc., as Amended 12 61K
20: EX-3.18 A.O.I.: Coral Ridge Realty Sales, Inc. 9 50K
21: EX-3.19 A.O.I.: Financial Resources Group, Inc. 3 31K
4: EX-3.2 Restated C.O.I.: Bay Colony-Gateway, Inc. 17 77K
22: EX-3.20 A.O.I.: Florida Design Communities, Inc. as Amend 7 44K
23: EX-3.21 A.O.I.: Florida Lifestyle Management Co., as Amndd 10 45K
24: EX-3.22 A.O.I.: Florida National Properties, Inc. 4 36K
25: EX-3.23 A.O.I.: Gateway Communities, Inc. 2 32K
26: EX-3.24 A.O.I.: Gateway Communications Services, Inc. 2 31K
27: EX-3.25 A.O.I.: Gateway Realty Sales, Inc. 3 31K
28: EX-3.26 A.O.I.: Heron Bay, Inc. 4 36K
29: EX-3.27 A.O.I.: Heron Bay Golf Course Properties, Inc. 4 36K
30: EX-3.28 A.O.I.: Jyc Holdings, Inc. 3 33K
31: EX-3.29 A.O.I.: Livingston Naples, Inc., as Amended 4 35K
5: EX-3.3 Certificate of Formation of Communities Finance 4 31K
32: EX-3.30 A.O.I.: Livingston Road, Inc. 3 34K
33: EX-3.31 A.O.I.: Marbella at Pelican Bay, Inc. 3 33K
34: EX-3.32 A.O.I.: Pelican Bay Properties, Inc. 3 34K
35: EX-3.33 A.O.I.: Pelican Landing Communities, Inc. 1 29K
36: EX-3.34 A.O.I.: Pelican Landing Properties, as Amended 9 44K
37: EX-3.35 A.O.I.: Pelican Marsh Properties, Inc. 2 30K
38: EX-3.36 A.O.I.: Sarasota Tower, Inc. 3 33K
39: EX-3.37 A.O.I.: Sun City Center Realty, Inc., as Amended 8 41K
40: EX-3.38 A.O.I.: the Colony at Pelican Landing Golf Club 2 33K
41: EX-3.39 A.O.I.: Tarpon Cove Yacht & Racquet Club, Inc. 5 40K
6: EX-3.4 C.O.I.: First Fidelity Title, Inc. 12 62K
42: EX-3.40 A.O.I.: Tarpon Cove Realty, Inc. 2 30K
43: EX-3.41 A.O.I.: Watermark Pools, Inc. 3 33K
44: EX-3.42 A.O.I.: Watermark Realty Referral, Inc., as Amndd 5 38K
45: EX-3.43 A.O.I.: Wci Communities Property Management, Inc. 3 33K
46: EX-3.44 A.O.I.: Wci Golf Group, Inc. 3 34K
47: EX-3.45 A.O.I.: Wci Homes, Inc. 3 33K
48: EX-3.46 A.O.I.: Wci Realty, Inc. 2 30K
49: EX-3.47 A/R By-Laws: Wci Communities, Inc. 14 74K
50: EX-3.48 A/R By-Laws: Bay Colony-Gateway, Inc. 29 82K
51: EX-3.49 Limited Liability Co Agreement: Comm Fin Co, LLC 10 60K
7: EX-3.5 Certificate of Formation of Panther Developments 3 31K
52: EX-3.50 By-Laws of First Fidelity Title, Inc. 28 75K
53: EX-3.51 Limited Liability Co Agreement: Panther Develop 9 61K
54: EX-3.52 By-Laws of Pelican Landing Golf Resort Ventures 13 72K
55: EX-3.53 By-Laws of Sun City Center Golf Properties, Inc. 16 74K
56: EX-3.54 By-Laws of Tiburon Golf Ventures, Inc. 12 63K
57: EX-3.55 By-Laws of Watermark Realty, Inc. 16 74K
58: EX-3.56 By-Laws of Wi Ultracorp of Florida, Inc. 10 59K
59: EX-3.57 By-Laws of Bay Colony of Naples, Inc. 14 74K
60: EX-3.58 By-Laws of Bay Colony Realty Associates, Inc. 10 52K
61: EX-3.59 By-Laws of Communities Amenities, Inc. 7 51K
8: EX-3.6 C.O.I.: Pelican Landing Golf Resort Ventures, Inc. 4 40K
62: EX-3.60 By-Laws of Communities Home Builders, Inc. 7 51K
63: EX-3.61 By-Laws of Coral Ridge Communities, Inc. 7 50K
64: EX-3.62 By-Laws of Coral Ridge Properties, Inc. 18 50K
65: EX-3.63 By-Laws of Coral Ridge Realty, Inc. 11 54K
66: EX-3.64 By-Laws of Coral Ridge Realty Sales, Inc. 10 55K
67: EX-3.65 By-Laws of Financial Resources Group, Inc. 14 74K
68: EX-3.66 By-Laws of Florida Design Communities, Inc. 16 71K
69: EX-3.67 A/R By-Laws of Florida Lifestyle Management Co 25 64K
70: EX-3.68 By-Laws of Florida National Properties, Inc. 7 50K
71: EX-3.69 By-Laws of Gateway Communities, Inc. 27 72K
9: EX-3.7 C.O.I.: Sun City Center Golf Properties, Inc. 7 47K
72: EX-3.70 By-Laws of Gateway Communications Services, Inc. 16 69K
73: EX-3.71 By-Laws of Gateway Realty Sales, Inc. 13 71K
74: EX-3.72 By-Laws of Heron Bay, Inc. 7 50K
75: EX-3.73 By-Laws of Heron Bay Golf Course Properties, Inc. 16 74K
76: EX-3.74 By-Laws of Jyc Holdings, Inc. 7 50K
77: EX-3.75 By-Laws of Livingston Naples, Inc. 7 51K
78: EX-3.76 By-Laws of Livingston Road, Inc. 7 50K
79: EX-3.77 By-Laws of Marbella at Pelican Bay, Inc. 7 53K
80: EX-3.78 By-Laws of Pelican Bay Properties, Inc. 11 44K
81: EX-3.79 By-Laws of Pelican Landing Communities, Inc. 7 50K
10: EX-3.8 C.O.I.: Tiburon Golf Ventures, Inc. 4 40K
82: EX-3.80 By-Laws of Pelican Landing Properties, Inc. 16 71K
83: EX-3.81 By-Laws of Pelican Marsh Properties, Inc. 10 52K
84: EX-3.82 By-Laws of Sarasota Tower, Inc. 7 51K
85: EX-3.83 A/R By-Laws of Sun City Center Realty, Inc. 26 65K
86: EX-3.84 By-Laws of the Colony at Pelican Landing Golf Club 21 77K
87: EX-3.85 By-Laws of Tarpon Cove Yacht & Racquet Club, Inc. 27 77K
88: EX-3.86 By-Laws of Tarpon Cove Realty, Inc. 10 52K
89: EX-3.87 By-Laws of Watermark Pools, Inc. 7 50K
90: EX-3.88 By-Laws of Watermark Realty Referral, Inc. 16 74K
91: EX-3.89 By-Laws of Wci Communities Property Management 7 50K
11: EX-3.9 C.O.I.: Watermark Realty, Inc., as Amended 8 40K
92: EX-3.90 By-Laws of Wci Golf Group, Inc. 7 51K
93: EX-3.91 By-Laws of Wci Homes, Inc. 7 51K
94: EX-3.92 By-Laws of Wci Realty, Inc. 11 55K
95: EX-4.1 Indenture 152 669K
96: EX-4.3 Registration Rights Agreement 32 132K
97: EX-5.1 Opinion of Simpson Thacher & Bartlett 6 39K
98: EX-9.1 Investors' Agreement, Dated as of November 30, 98 27 108K
99: EX-9.2 First Amendment to Investors' Agreement 8 49K
100: EX-10.1 Primary Tax Allocation Agreement 12 60K
101: EX-10.2 3rd Con A/R Senior Secured Facilities Credit Agrmt 137 497K
102: EX-10.3 Employment Agreement: Don E. Ackerman 10 54K
103: EX-10.4 Employment Agreement: Alfred Hoffman, Jr. 11 61K
104: EX-12.1 Statement Re Computation of Ratios 1 29K
105: EX-21.1 Subsidiaries 2 30K
106: EX-23.2 Consent of Pricewaterhousecoopers LLP 1 27K
107: EX-23.3 Consent of Kpmg LLP 1 27K
108: EX-25.1 Form T-1 13 60K
109: EX-99.1 Form of Letter of Transmittal 14 95K
110: EX-99.2 Notice of Guaranteed Delivery 3 36K
EX-3.2 — Restated C.O.I.: Bay Colony-Gateway, Inc.
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EXHIBIT 3.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
BAY COLONY - GATEWAY, INC.
The Corporation was originally incorporated under the name A & D Merger
Company and the original certificate of incorporation was filed on June 14,
1995. This Restated Certificate of Incorporation was duly adopted in accordance
with Sections 242 and 245 of the General Corporation Law of Delaware.
ARTICLE ONE. The name of the Corporation is:
Bay Colony - Gateway, Inc.
ARTICLE TWO. The address of its registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle,
Zip Code 19805. The name of its registered agent at such address is Corporation
Service Company.
ARTICLE THREE. 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 Delaware.
ARTICLE FOUR. The aggregate number of shares of stock which the
Corporation shall be authorized to issue is 23,685,719 shares, consisting of:
23,585,719 authorized shares of Class A preferred stock par value $1.00
per share, and
100,000 authorized shares of common stock par value $.01 per share of
the Corporation.
The powers, preferences and rights, and the qualifications, limitations
and restrictions of the preferred stock are as specified on attached
Exhibit A.
ARTICLE FIVE. The Corporation is to have perpetual existence.
ARTICLE SIX. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized to make,
alter or repeal the by-laws of the Corporation.
ARTICLE SEVEN. Elections of directors need not be by written ballot
unless the by-laws of the corporation shall so provide.
ARTICLE EIGHT. 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 upon stockholders, directors, or any other
person herein are granted subject to this reservation.
ARTICLE NINE. 1. Limitation on Liability. A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for a 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 Delaware General Corporation Law, as the same exists or hereafter
may be amended, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law hereafter is
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitation on personal liability provided herein, shall be eliminated or
limited to the fullest extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this subsection 1 by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
2. Indemnification and Insurance. (a) Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving as a
director or officer, shall be indemnified and held harmless by the Corporation
to the fullest extent authorized by the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director or officer and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that except as provided in subsection 2(b) of this Article Nine with
2
respect to proceedings seeking to enforce rights to indemnification, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this subsection 2
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that if the General Corporation Law of
the State of Delaware requires, an advance payment of expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to any employee
benefit plan) shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer, to repay all amounts so
advanced if it shall be finally adjudicated that such director or officer is not
to be indemnified under this subsection 2 or otherwise.
(b) If a claim under subsection 2(a) is not paid in full by the
Corporation within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the corporation to indemnify the
claimant for the amount claimed. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant has met the applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
subsection 2 shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
3
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss whether or not the Corporation would have
the power to indemnify such person against such expense, liability or loss under
the General Corporation Law of the State of Delaware.
(e) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and to the advancement
of expenses incurred in defending any proceeding to any employee or agent of the
Corporation to the fullest extent of the provisions of this subsection 2 with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
(f) For purposes of this subsection 2, the term "Corporation" shall
include, in addition to the Corporation, any constituent corporation absorbed in
a consolidation or merger with the Corporation, to the extent such constituent
Corporation would have had power and authority to indemnify its directors,
officers, employees and agents if its separate existence had survived.
ARTICLE TEN. Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof on the
application of any receiver or receivers appointed for this Corporation under
the provision 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 an 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 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.
4
IN WITNESS WHEREOF, THIS RESTATED CERTIFICATE OF INCORPORATION IS
EXECUTED THIS 24th day of July, 1995.
Bay Colony - Gateway, Inc.
By: /s/ ALFRED HOFFMAN, JR.
---------------------------------
Alfred Hoffman, Jr.,
President
ATTEST:
By: /s/ DON E. ACKERMAN, SECRETARY
-----------------------------------
Don E. Ackerman, Secretary
5
STATE OF GEORGIA )
COUNTY OF FULTON )
BEFORE ME, the undersigned officer, a Notary Public authorized to administer
oaths and to take acknowledgements in and for the State and County set forth
above, personally appeared Alfred Hoffman, Jr., President and Don E. Ackerman,
Secretary of Bay Colony - Gateway, Inc., known to me and known by me to be the
persons who executed the foregoing Restated Certificate of Incorporation, and
they acknowledged to me and before me that they executed this Restated
Certificate of Incorporation as President and Secretary of Hay Colony - Gateway,
Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, in
the State and County aforesaid, this 24th day of July, 1995.
/s/ [SIGNATURE ILLEGIBLE]
------------------------------------
Notary Public
[SEAL]
My commissions expires:
6
EXHIBIT A
BAY COLONY-GATEWAY, INC.
EXPRESS TERMS OF THE CLASS A
PREFERRED STOCK
The following provisions shall be applicable to the 23,585,719
authorized shares of Class A Preferred Stock, par value $1.00 per share, of Bay
Colony-Gateway, Inc. (the "Corporation"):
1. Dividends on Class A Preferred Stock
(a) The holders of the Class A Preferred Stock shall be entitled to
receive, when, as and if declared by the Corporation's Board of Directors out of
the funds of the Corporation legally available therefor (the "Legally Available
Funds"), cumulative dividends on the shares of the Class A Preferred Stock for
each Quarterly Dividend Period (as defined herein) at the annual rate per share
equal to eight percent (8%) times the per share par value payable quarterly on
February 1, May 1, August 1 and November 1 in each year (each, as used in this
Paragraph, a "Dividend Payment Date"), commencing November 1, 1995. Such
dividends shall be cumulative from the date of original issuance of such shares.
Accrued and unpaid dividends on the Class A Preferred Stock shall accrue
additional dividends in respect thereof (as used in this Paragraph, the
"Additional Dividends"), compounded quarterly, at the dividend rate then
applicable to the Class A Preferred Stock. Dividends shall be paid in cash.
Dividends for each Quarterly Dividend Period shall be paid to the holders of
record of shares of the Class A Preferred Stock as they appear on the stock
register of the Corporation on such record date, not more than 30 days nor less
than 10 days preceding the Dividend Payment Date thereof, as shall be fixed by
the Board of Directors of the Corporation or a duly authorized committee
thereof. "Quarterly Dividend Period" means the period from February 1 through
the next April 30, from May 1 through the next July 31, from August 1 through
the next October 31, or from November 1 through the last day of January, as the
case may be; provided that the first Quarterly Dividend Period shall mean the
period commencing the day shares of Class A Preferred Stock are originally
issued and ending on October 31, 1995.
(b) Unless full cumulative dividends (including Additional Dividends) on
the Class A Preferred Stock have been paid or declared in full and sums set
aside for the payment thereof, no dividends shall be declared or paid or set
aside for payment or other distribution made upon the Common Stock or any other
capital stock of the Corporation, nor shall any Common Stock or any other
capital stock of the Corporation be redeemed, purchased or otherwise acquired
for any consideration (or any payment made to or available for a sinking fund
for the redemption of any shares of such stock) by the Corporation or any
subsidiary of the Corporation.
(c) Dividends (including Additional Dividends) payable on the Class A
Preferred Stock (i) for any full Quarterly Dividend Period shall be computed on
the basis of a 360-day year of twelve 30-day months and (iii) fox any period
less than a full Quarterly Dividend Period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days elapsed in
the period for which payable.
2. Redemption of Class A Preferred Stock
(a) Mandatory Redemption. As a mandatory redemption for the retirement
of the shares of Class A Preferred Stock, the Corporation shall redeem on August
1, 2001 all of the shares of the Class A Preferred Stock at the redemption price
of One dollar ($1.00) per share plus any accrued and unpaid dividends, whether
or not declared.
If the Corporation shall fail to discharge its obligation to redeem all
of the outstanding shares of Class A Preferred Stock required to be redeemed on
August 1, 2001 pursuant to this Paragraph 2(a) (the "Mandatory Redemption
Obligation"), the Mandatory Redemption Obligation shall be discharged as soon
as the Corporation is able to discharge such Mandatory Redemption Obligation.
(b) Optional Redemption. The Class A Preferred Stock shall be redeemable
at the option of the Corporation by resolution of its Board of Directors, at any
time after August 1, 1998, upon giving notice as provided in Paragraph 2(c)
below, at the redemption price of One dollar ($1.00) per share, plus accrued and
unpaid dividends, whether or not declared, to the redemption date; provided
that, if all (but not less than all) the Class A Preferred Stock is so redeemed
on or before December 31, 1998, the redemption price shall be $0.924289 per
share, plus accrued and unpaid dividends, whether or not declared, to the
redemption date.
(c) Notice of Redemption. At least 30 days but not more than 60 days
prior to the date fixed for the redemption of shares of the Class A Preferred
Stock pursuant to Paragraph 2(a) or 2(b) above, a written notice shall be mailed
to each holder of record of shares of Class A Preferred Stock to be redeemed in
a postage-prepaid envelope addressed to such holder at his post office address
as shown on the records of the Corporation, notifying such holder of the
redemption of such shares, stating the date fixed for redemption thereof (herein
referred to as the redemption date), and calling upon such holder to surrender
to the Corporation on the redemption date at the place designated in such notice
his certificate or certificates representing the shares of Class A Preferred
Stock held by such holder. On or after the redemption date, each holder of
shares of Class A Preferred Stock to be redeemed shall present and surrender his
certificate or certificates for such shares to the Corporation at the place
designated in such notice and thereupon the redemption
2
price of such shares shall be paid to or on the order of the person whose name
appears on such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled. From and after the redemption date
(unless default shall be made by the Corporation in payment of the redemption
price) all dividends on the Shares of Class A Preferred Stock designated for
redemption in such notice shall cease to accrue, and all rights of the holders
thereof as stockholders of the Corporation, except the right to receive the
redemption price thereof (including all accrued and unpaid dividends up to the
redemption date) upon the surrender of certificates representing the same, shall
cease and terminate and such shares shall not thereafter be transferred (except
with the consent of the Corporation) on the books of the Corporation, and such
shares shall not be deemed to be outstanding for any purpose whatsoever.
(d) No Reissuance of the Class A Preferred Stock. The Class A Preferred
Stock acquired by the Corporation by reason of redemption, purchase or otherwise
may not be reissued and such shares of Class A Preferred Stock shall be
canceled, retired and eliminated from the shares which the Corporation shall be
authorized to issue. The President, Chief Executive officer or any
Vice-President and the Secretary or any Assistant Secretary of the Corporation
are hereby authorized and directed on behalf of the Corporation to file such
documents from time to time as my be necessary to cancel and eliminate the Class
A Preferred Stock accordingly.
(e) Pro Rata Redemption. If less than all shares of Class A Preferred
Stock at the time outstanding are to be redeemed, the shares to be redeemed
shall be selected pro rata.
3. Voting Rights
(a) The holders of the Class A Preferred Stock shall not, except as
required by law or as otherwise set forth herein, have any 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 the Corporation's stockholders. On any matters on
which the holders of the Class A Preferred Stock shall be entitled to vote, they
shall be entitled to one vote for each share held.
(b) In case at any time (i) the equivalent of four or more full
quarterly dividends (whether consecutive or not) on the Class A Preferred Stock
shall be in arrears or (ii) the Corporation shall have failed to discharge its
Mandatory Redemption Obligation, then during the period (hereinafter called the
"Class A Preferred Stock Voting Period") commencing with such time and ending
with the time when (x) all arrears in dividends on the Class A Preferred Stock
shall have been paid and the full dividend on the Class A Preferred Stock for
the then current quarterly dividend period shall have been paid or declared and
set apart for payment or (y) the Corporation shall have fulfilled
3
its Mandatory Redemption Obligation, as the case may be, at any meeting of the
stockholders of the Corporation held for the election of directors during the
Class A Preferred Stock Voting Period, the holders of a majority of the
outstanding shares of Class A Preferred Stock represented in person or by proxy
at said meeting shall be entitled, as a class, to the exclusion of the holders
of all other classes or series of stock of the Corporation, to elect one of the
directors of the Corporation. During any Class A Preferred Stock Voting Period,
the Board of Directors of the Corporation shall be expanded to include such
greater number of directors as may be necessary to comply with this Paragraph
3(b). The remaining directors shall be elected by the other class or classes of
stock entitled to vote therefore, at each meeting of stockholders held for the
purpose of electing directors.
(c) At any time when such voting right shall have vested in the holders
of Class A Preferred Stock and if such right shall not already have been
initially exercised, a proper officer of the Corporation shall, upon the written
request of any holder of record of Class A Preferred Stock then outstanding,
addressed to the Secretary of the Corporation, call a special meeting of holders
of Class A Preferred Stock. Such meeting shall be held at the earliest
practicable date upon the notice required for annual meetings of stockholders at
the place for holding annual meetings of stockholders of the Corporation or, if
none, at a place designated by the Secretary of the Corporation. If such meeting
shall not be called by the proper officers of the Corporation within 30 days
after the personal service of such written request upon the Secretary of the
Corporation, or within 30 days after mailing the same within the United States,
by registered mail, addressed to the secretary of the Corporation at its
principal office (such mailing to be evidenced by the registry receipt issued by
the postal authorities), then the holders of record of 10% of the shares of
Class A Preferred Stock then outstanding may designate in writing a holder of
Class A Preferred Stock to call such meeting at the expense of the Corporation,
and such meeting may be called by such person so designated upon the notice
required for annual meetings of stockholders and shall be held at the same place
as is elsewhere provided in this Paragraph 3(c). Any holder of Class A Preferred
Stock which would be entitled to vote at such meeting shall have access to the
stock books of the Corporation for the purpose of causing a meeting of
stockholders to be called pursuant to the provisions of this Paragraph 3(c).
Notwithstanding the other provisions of this Paragraph 3(c), however, no such
special meeting shall be called during a period within 90 days immediately
preceding the date fixed for the next annual meeting of stockholders.
(d) At any meeting held for the purpose of electing directors at which
the holders of Class A Preferred Stock shall have the right to elect directors
as provided herein, the presence in person or by proxy of the holders of at
least one.
4
third of the then outstanding shares of Class A Preferred Stock shall be
required and be sufficient to constitute a quorum of such class for the election
of directors by such class. At any such meeting or adjournment thereof (i) the
absence of a quorum of the holders of Class A Preferred Stock shall not prevent
the election of directors other than those to be elected by the holders of stock
of such class and the absence of a quorum or quorums of the holders of capital
stock entitled to elect such other directors shall not prevent the election of
directors to be elected by the holders of Class A Preferred Stock and (ii) in
the absence of a quorum of the holders of any class of stock entitled to vote
for the election of directors, a majority of the holders present in person or
by proxy of such class shall have the power to adjourn the meeting for the
election of directors which the holders of such class are entitled to elect,
from time to time without notice (except as required by law) other than
announcement at the meeting, until a quorum shall be present.
(e) Any director who shall have been elected by holders of Class A
Preferred Stock may be removed at any time during a Class A Preferred Stock
Voting Period, either for or without cause, by, and only by, the affirmative
votes of the holders of record of a majority of the outstanding shares of Class
A Preferred Stock given at a special meeting of such stockholders called for the
purpose, and any vacancy thereby created may be filled during such Class A
Preferred Stock Voting Period by the holders of Class A Preferred Stock, present
in person or represented by proxy at such meeting. Any director elected by
holders of Class A Preferred Stock who dies, resigns, or otherwise ceases to be
a director shall be replaced by the affirmative vote of the holders of record
of a majority of the outstanding shares of Class A Preferred Stock at a special
meeting of stockholders called for that purpose or by the remaining director
elected by holders of Class A Preferred Stock. At the end of the Class A
Preferred Stock Voting Period, the holders of Class A Preferred Stock shall be
automatically divested of all voting power vested in them under Paragraph 3(b)
hereof but subject always to the subsequent vesting hereunder of voting power in
the holders of Class A Preferred Stock in the event of (i) any similar cumulated
arrearage in payment of quarterly dividends occurring thereafter or (ii) the
subsequent failure of the Corporation to discharge its Mandatory Redemption
Obligation as described above. The term of all directors elected pursuant to the
provisions of Paragraph 3(b) shall in all events expire at the end of the Class
A Preferred Stock Voting Period and upon such expiration the number of directors
constituting the Board of Directors shall, without further action, be reduced by
one (1) (or such other number by which the number of directors constituting the
Board of Directors shall have been increased pursuant to Paragraph 3(b)
hereof), subject always to the increase of the number of directors pursuant to
Paragraph 3(b) hereof in case of the future right of the holders of Class A
Preferred Stock to elect directors as provided herein.
5
4. Liquidation Preference
(a) In the event of any liquidation, dissolution, or winding up of the
affairs of the Corporation, whether voluntary or otherwise, after payment or
provision for payment of the debts and other liabilities of the Corporation, the
holders of the Class A Preferred Stock shall be entitled to receive, out of the
remaining net assets of the Corporation, the redemption price for each share of
Class A Preferred Stock pursuant to Paragraph 2(a) before any distribution shall
be made to the holders of the Common Stock of the Corporation or any other
capital stock of the Corporation. Except as otherwise provided in this Paragraph
4(a), holders of Class A Preferred Stock shall not be entitled to any
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation.
(b) For the purpose of Paragraph 4(a) hereof, neither the voluntary
sale, lease, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all the property or
assets of the Corporation, nor the consolidation or merger of the Corporation
with one or more other corporations, shall be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, unless such voluntary sale,
lease, conveyance, exchange or transfer shall be in connection with a plan of
liquidation, dissolution or winding up of the Corporation; provided, however,
that the sale, lease, conveyance, exchange or transfer of all or substantially
all of the Corporation's assets or the merger or consolidation of the
Corporation which results in the holders of Common Stock of the Corporation
receiving in exchange for such Common Stock either cash or notes, debentures or
other evidences of indebtedness or obligations to pay cash or preferred stock of
the surviving entity (whether or not the surviving entity is the Corporation)
which ranks on a parity with or senior to the Class A Preferred Stock with
respect to liquidation or dividends shall at the election of a holder of Class A
Preferred Stock be deemed to be a voluntary liquidation, dissolution or winding
up of the affairs of the Corporation within the meaning of Paragraph 4(a). In
the cases of merger or consolidation of the Corporation where holders of Common
Stock receive, in exchange for such Common Stock, common stock or preferred
stock which is junior to the Class A Preferred Stock with respect to liquidation
or dividends in the surviving entity (whether or not the surviving entity is the
Corporation) of such merger or consolidation or preferred stock of another
entity, the Class A Preferred Stock shall be deemed to be preferred stock of
such surviving entity or other entity, as the case may be, with the same annual
dividend rate and equivalent rights to the rights set forth herein and the
merger or consolidation agreement shall expressly so provide.
5. Limitations
(a) So long as any shares of the Class A Preferred Stock are outstanding
and unless the vote or consent of the
6
holders of a greater number of shares shall then be required by law, the consent
of the holders of at least 80% of all of the outstanding shares of Class A
Preferred Stock (given in person or by proxy, either by written consent pursuant
to Section 228 of the Delaware General Corporation Law or by a vote at a special
meeting of stockholders called for such purpose or at any annual meeting of
stockholders, with the holders of Class A Preferred Stock voting as a class and
with each share of Class A Preferred Stock having one vote) shall be necessary
for authorizing, effecting or validating the amendment, alteration or repeal of
any of the provisions of the Certificate of Incorporation or of any amendment
thereto, or of any resolution or resolutions providing for the issue of any
stock that would have an adverse effect on the designations, rights, preferences
or privileges of shares of Class A Preferred Stock.
(b) So long as any shares of the Class A Preferred Stock are outstanding
and unless the vote or consent of the holders of a greater number of shares
shall then be required by law, the consent of the holders of at least 80% of all
of the outstanding shares of Class A Preferred Stock (given in person or by
proxy, either by written consent pursuant to Section 228 of the Delaware General
Corporation Law or by a vote at a special meeting of stockholders called for
such purpose or at any annual meeting of stockholders, with the holders of Class
A Preferred Stock voting as a class and with each share of Class A Preferred
Stock having one vote) shall be required prior to (1) the creation of any class
or series of securities of the Corporation on a parity with the Class A
Preferred Stock as to dividends or liquidation rights (collectively, "Parity
Securities" or the authorization of additional shares of any class or series of
Parity Securities or the issuance thereof or (2) the sale, lease or conveyance
of all or substantially all of the Corporation's assets or the merger or
consolidation of the Corporation with or into any other entity if as a result of
such transaction the Class A Preferred Stock would be redeemed for less than its
liquidation preference plus any accrued and unpaid dividends, or as a result of
which the Class A Preferred Stock would continue in existence (either as stock
in the Corporation or in the surviving company in a merger) but with an adverse
alteration in its specified designations, rights, preferences or privileges.
(c) Nothing herein contained shall be construed so as to require a class
vote or the consent of the holders of the outstanding shares of Class A
Preferred Stock (i) in connection with any increase in the total number of
authorized shares of Common Stock, or (ii) in connection with the authorization
or increase of any class of capital stock of the Corporation ranking junior to
the Class A Preferred Stock as to dividends or liquidation rights. The
limitations stated above shall not apply if, at or prior to the time when the
distribution, payment, purchase, redemption, discharge, conversion, exchange,
amendment, alteration, repeal, issuance, sale, lease, conveyance, merger or
consolidation is to occur, as the case may be, provision is made
7
for the redemption of all shares of Class A Preferred Stock at the time
outstanding at the redemption price set forth in Paragraph 2(b). Nothing herein
contained shall in any way limit the right and power of the Corporation to issue
the presently-authorized but unissued shares of its capital stock, or bonds,
notes, mortgages, debentures, and other obligations, and to incur indebtedness
to banks and to other lenders.
(d) So long as any shares of the Class A Preferred Stock are
outstanding, the Corporation may not exchange any capital stock of the
Corporation ranking junior to the Class A Preferred Stock as to dividends or
liquidation rights for indebtedness of the Corporation.
6. Ranking
With regard to rights to receive dividends, mandatory redemption
payments and distributions upon liquidation, dissolution or winding up of the
Corporation, the Class A Preferred Stock shall rank prior to all other capital
stock of the Corporation outstanding at the time of issuance of the Class A
Preferred Stock.
8
CERTIFICATE OF MERGER
of
WCI HOLDINGS, INC.,
a Delaware corporation,
INTO
BAY COLONY - GATEWAY, INC,
a Delaware corporation
Pursuant to the provisions of Section 251 of the General Corporation Law
of the State of Delaware, the undersigned Delaware corporations hereby certify
by this Certificate of Merger as follows:
FIRST: The name of each constituent corporation and the surviving
corporation and the States under the laws of which they are respectively
organized are as follows:
(a) WCI HOLDINGS, INC. ("WCI") is a corporation organized and exiting
under the laws of the State of Delaware, incorporated on September 18, 1995
(Delaware Corporate No. 2543993); and
(b) BAY COLONY - GATEWAY, INC. ("BAY COLONY") is a corporation
organized and existing under the laws of the State of Delaware, incorporated on
June 14,1995 (Delaware Corporate No. 2515960); and
(c) The surviving corporation is BAY COLONY - GATEWAY, INC., a Delaware
corporation.
SECOND: The Agreement of Merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with Section 251 of the General Corporation Law of the State of Delaware. The
merger was approved by the sole shareholder and Board of Directors of WCI by
Written Action in Lieu of Meeting dated October 30 , 1998. The merger was
approved by the sole voting shareholder and the Board of Directors of BAY COLONY
by Written Action in Lieu of Meeting dated October 30, 1998. The laws of the
State of Delaware permit such merger. The Certificate of Incorporation of BAY
COLONY shall be the Certificate of Incorporation of the surviving corporation.
THIRD: The effective date of the merger shall be as of the date of
filing of this Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with the General Corporation Law of the State of
Delaware.
FOURTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation at the following
address: 24301 Walden Center Drive, Suite 300, Bonita Springs, Florida 34134. A
copy of the Agreement and Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any shareholder of either of the
constituent corporations.
IN WITNESS WHEREOF, each of the corporations party to the merger has
caused this Certificate of Merger to be executed on its behalf by its duly
authorized officer this 30 day of October 1998.
WCI HOLDINGS, INC., BAY COLONY - GATEWAY, INC.,
a Delaware corporation a Delaware corporation
By: /s/ STEVEN C. ADELMAN By: /s/ VIVIEN HASTINGS
------------------------------- ------------------------------------
Print Name: Steven C. Adelman Print Name: Vivien Hastings
Title: Vice President/Treasurer Title: Sr. Vice President
STATE OF FLORIDA
COUNTY OF LEE
The foregoing instrument was acknowledged before me this 30 day of October
1998, by Steven C. Adelman as Vice President/Treasurer of WCI HOLDINGS, INC., a
Delaware corporation, on behalf of the corporation, who is personally known to
me.
/s/ MELANIE SCIRE
-----------------------------------
NOTARY PUBLIC
Name:
[SEAL] -----------------------------------
Serial #:
-----------------------------------
My Commission Expires:
STATE OF FLORIDA
COUNTY OF LEE
The foregoing instrument was acknowledged before me this 30 day of October
1998, by Steven C. Adelman as Vice President/Treasurer of BAY COLONY - GATEWAY,
INC., a Delaware corporation, on behalf of the corporation, who is personally
known to me.
/s/ MELANIE SCIRE
-----------------------------------
NOTARY PUBLIC
Name:
[SEAL] -----------------------------------
Serial #:
-----------------------------------
My Commission Expires:
2
CERTIFICATE OF AMENDMENT TO THE RESTATED
CERTIFICATE OF INCORPORATION
OF
BAY COLONY - GATEWAY, INC.
(Pursuant to Section 242 of the General Corporation Law of Delaware)
It is hereby certified that:
1. The Restated Certificate of Incorporation is hereby amended by
striking Paragraph 2(a) of Exhibit A to the Restated Certificate of
Incorporation, Express Terms of the Class A Preferred Stock and by substituting
in lieu of said Paragraph the following new Paragraph 2(a):
(a) Mandatory Redemption. As a mandatory redemption for the
retirement of the shares of Class A Preferred Stock, the Corporation shall
redeem on June 30, 2004 all of the shares of the Class A Preferred Stock
at the redemption price of one dollar ($1.00) per share plus any accrued
and unpaid dividends, whether or not declared.
If the Corporation shall fail to discharge its obligation to redeem
all of the outstanding shares of Class A Preferred Stock required to be
redeemed on June 30, 2004 pursuant to this Paragraph 2(a) (the "Mandatory
Redemption Obligation"), the Mandatory Redemption Obligation shall be
discharged as soon as the Corporation is able to discharge such Mandatory
Redemption Obligation.
2. All other provisions of the Restated Certificate of Incorporation are
reaffirmed.
3. This amendment to Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
4. The effective date of this amendment is June 29, 1999.
Dated: June 25, 1999
BAY COLONY - GATEWAY, INC.
By: /s/ VIVIEN HASTINGS
------------------------------------
Vivien Hastings
Senior Vice President
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 6/30/04 | | 17 | | | | | 10-Q |
| | 8/1/01 | | 8 |
| Filed on: | | 4/6/01 |
| | 6/29/99 | | 17 |
| | 6/25/99 | | 17 |
| | 12/31/98 | | 8 |
| | 10/30/98 | | 15 |
| | 8/1/98 | | 8 |
| | 11/1/95 | | 7 |
| | 10/31/95 | | 7 |
| | 9/18/95 | | 15 |
| | 6/14/95 | | 1 |
| List all Filings |
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