EXHIBIT 2
EXHIBIT A TO INVESTMENT AGREEMENT
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ATLANTIC GULF COMMUNITIES CORPORATION
Atlantic Gulf Communities Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the corporation is Atlantic Gulf Communities
Corporation. Atlantic Gulf Communities Corporation was originally incorporated
under the name "Chemical Research Corporation". The original Certificate of
Incorporation of Chemical Research Corporation was filed with the Secretary of
State of the State of Delaware on January 13, 1928. Atlantic Gulf Communities
Corporation was subsequently named General Development Corporation. General
Development Corporation filed a voluntary petition for relief from creditors
under Chapter 11 of the Bankruptcy Code on April 6, 1990, in the United States
Bankruptcy Court for the Southern District of Florida (the "Bankruptcy Court").
On [AGCC TO PROVIDE], 1991, the Certificate of Incorporation of the corporation
was amended pursuant to Section 7.2(b) of the Second Amended Joint Plan of
Reorganization of General Development Corporation dated October 9, 1991, and
confirmed by Order of the Bankruptcy Court on [Confirmation Date] [AGCC TO
PROVIDE] (the "Reorganization Plan").
2. This Amended and Restated Certificate of Incorporation was adopted
by the stockholders of the corporation on [June 12], 1997 and restates and
further amends the provisions of the Certificate of Incorporation of this
corporation as heretofore amended or supplemented.
3. The text of the Certificate of Incorporation as heretofore amended
or supplemented is hereby restated and further amended to read in its entirety
as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is ATLANTIC GULF COMMUNITIES CORPORATION.
SECOND: The registered office of the Corporation is to be located at
0000 Xxxxxx Xxxxxx, in the City of Wilmington, in the County of New Castle, in
the State of Delaware. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: (a) The total number of shares of stock that the Corporation
shall have authority to issue is seventy-four million and five hundred thousand
(74,500,000), of which seventy million (70,000,000) shall be common stock of one
class, par value of ten cents ($0.10) per share ("Common Stock"), amounting in
the aggregate to par value seven million dollars ($7,000,000), and four million
and five hundred thousand (4,500,000) shall be preferred stock, par value $.01
per share ("Preferred Stock"), amounting in the aggregate to par value of
forty-five thousand dollars ($45,000).
(b) Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors of the Corporation is hereby authorized to
fix the voting rights, if any, designations, powers, preferences and the
relative, participation, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, of any unissued series of
Preferred Stock; and to fix the number of shares constituting such series, and
to increase or decrease the number of shares of any such series (but not below
the number of shares thereof then outstanding). Except as otherwise provided by
law, the voting rights of the Corporation's capital stock shall be as set forth
in this Amended and Restated Certificate of Incorporation or in the resolution
or resolutions adopted by the Board of Directors designating the rights, powers
and preferences of any series of Preferred Stock. Each share of Common Stock
shall have one vote, and the Common Stock shall vote together as a single class.
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(c) The Board of Directors of the Corporation is authorized to effect
the elimination of shares of its Common Stock purchased or otherwise reacquired
by the Corporation from the authorized capital stock of the number of shares of
the Corporation in the manner provided for in the General Corporation Law of the
State of Delaware.
(d) No holder of Common Stock shall have any preemptive right to
subscribe to stock, obligations, warrants, rights to subscribe to stock or other
securities of the Corporation of any class, whether now or hereafter authorized.
(e) The powers, preferences and rights of the 20% Cumulative Redeemable
Convertible Preferred Stock, Series A of the Corporation shall be set forth in
Annex A to this Amended and Restated Certificate of Incorporation (which is
incorporated herein as though set forth in full in this place).
(f) The powers, preferences and rights of 20% Cumulative Redeemable
Convertible Preferred Stock, Series B of the Corporation shall be set forth in
Annex B to this Amended and Restated Certificate of Incorporation (which is
incorporated herein as though set forth in full in this place).
FIFTH: The Corporation shall be managed by the Board of Directors,
which shall exercise all powers conferred under the laws of the State of
Delaware. The number of directors shall be determined as provided in the By-laws
of the Corporation. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is authorized to later amend or repeal the
By-laws of the Corporation.
SIXTH: No action shall be taken by the stockholders of the Corporation
except at an annual meeting or at a special meeting of stockholders of the
Corporation; PROVIDED, HOWEVER, that at any time after the first meeting of the
stockholders held in accordance with the By-laws of the Corporation, any action
required or permitted to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice and without a
vote, if consents in writing, setting forth the action so taken, are signed by
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the holders of shares of capital stock having not less than the minimum number
of votes that would be necessary to authorize or take the action at a meeting at
which the holders of all shares entitled to be voted thereon were present and
voted; prompt notice of the taking of action without a meeting by less than
unanimous consent shall be given to the stockholders who have not consented in
writing.
SEVENTH: At any time after the first annual meeting of stockholders
held in accordance with the By-laws of the Corporation, the holders of 35
percent of the issued and outstanding shares of capital stock may request that a
special meeting be called in accordance with the procedures set forth in the
By-laws.
EIGHTH: No director may be removed from office except for cause and
only by the affirmative vote of the holders of a majority of the outstanding
stock entitled to vote.
NINTH: The Corporation may indemnify its directors, officers, employees
and agents to the fullest extent permitted by the General Corporation Law of
Delaware, as the same exists or may hereafter be amended.
TENTH: The provisions set forth in this Article Tenth and in Articles
Fifth, Sixth, Eighth, Ninth, Eleventh, and Twelfth of this Amended and Restated
Certificate of Incorporation may not be amended, altered, repealed or rescinded
in any respect, and no other provision or provisions may be adopted which
impair(s) in any respect the operation or effect of any such provision, except
by the affirmative vote of the holders of not less than three-fifths of the
outstanding stock.
ELEVENTH: The Board of Directors shall have the power to adopt, amend,
alter, or repeal the By-Laws of the Corporation as provided in such By-Laws. The
stockholders shall also have the power to adopt, amend, alter or repeal the
By-Laws of the Corporation; PROVIDED, HOWEVER, that, notwithstanding the
foregoing and anything contained in this Amended and Restated Certificate of
Incorporation to the contrary, unless amended, altered or repealed by the Board
of Directors as provided in the By-Laws, Sections 2.1, 2.2(a) and 2.2(c) of
Article II, Sections 3.1, 3.2, 3.3, 3.4, 3.8 and 3.9 of Article III, Section 4.1
of Article IV, Article VII, Article VIII, and Section 10.1 of Article X of the
By-Laws may not be amended, altered, repealed or rescinded in any respect, and
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no other provision or provisions may be adopted which impair(s) in any respect
the operation or effect of such provision, except by the same vote that would be
required to amend pursuant to Article Tenth of this Amended and Restated
Certificate of Incorporation.
TWELFTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by the General Corporation Law
of Delaware, as the same exists or may hereafter be amended. No amendment to or
repeal of this Article shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
4. This Amended and Restated Certificate of Incorporation was approved
by the shareholders of the Corporation at a meeting held on [June 12], 1997 and
was duly adopted in accordance with the provisions of Sections 103 and 303 of
Title 8 of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed and attested by the undersigned, thereunto duly
authorized, this __ day of June, 1997.
Atlantic Gulf Communities Corporation
By: --------------------------------
Its: --------------------------------
Attest:
------------------------
Name
Title
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