Great Elm Group, Inc. (Form: 8-K12B, Received: 12/29/2020 07:00:31)

8-K12Bfalse06-30000183109600018310962020-12-282020-12-28

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 28, 2020

Great Elm Group, Inc.

(Exact name of registrant as specified in its charter)

Delaware	001-16073	85-3622015
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

800 South Street, Suite 230, Waltham, MA		02453
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (617) 375-3006

N/A

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class		Trading Symbol(s)		Name of exchange on which registered
Common Stock, par value $0.001 per share		GEG		The Nasdaq Stock Market LLC (Nasdaq Global Select Market)

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Explanatory Note

On December 21, 2020, Great Elm Capital Group, Inc. (“GEC” and following consummation of the Holding Company Reorganization (as hereinafter defined), “Forest”) announced plans to create a new public holding company, Great Elm Group, Inc. (the “Company”), by implementing a holding company reorganization (the “Holding Company Reorganization”). Following the Holding Company Reorganization, the Company, a Delaware corporation, became the successor issuer to GEC, a Delaware corporation. This Current Report on Form 8-K (the “Form 8-K”) is being filed for the purpose of establishing the Company as the successor issuer pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to disclose certain related matters. Pursuant to Rule 12g-3(a) under the Exchange Act, shares of the Company’s Common Stock, par value $0.001 per share (“Company Common Stock”), as successor issuer, are deemed registered under Section 12(b) of the Exchange Act.

Item 1.01.

Entry into a Material Definitive Agreement.

Adoption of Agreement and Plan of Merger and Consummation of Holding Company Reorganization

On December 29, 2020, GEC implemented its previously announced holding company reorganization pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of December 21, 2020, by and among GEC, the Company and Forest Merger Sub, Inc., a Delaware corporation (“Merger Sub”), which resulted in, among other things, the Company owning all of the outstanding capital stock of GEC and GEC changing its name to “Forest Investments, Inc.”. Pursuant to the Holding Company Reorganization, Merger Sub, a direct, wholly owned subsidiary of the Company and an indirect, wholly owned subsidiary of GEC, merged with and into GEC, with GEC surviving as a direct, wholly owned subsidiary of the Company.

Each share of GEC common stock, par value $0.001 per share (“GEC Common Stock” and following consummation of the Holding Company Reorganization, “Forest Common Stock”), issued and outstanding immediately prior to the Holding Company Reorganization was automatically converted into an equivalent corresponding share of Company Common Stock having the same designations, rights, powers and preferences and the qualifications, limitations and restrictions as the corresponding share of GEC Common Stock being converted.

Accordingly, upon consummation of the Holding Company Reorganization, GEC’s stockholders became stockholders of the Company. The stockholders of the Company will not recognize gain or loss for U.S. federal income tax purposes upon the conversion of their shares of GEC Common Stock in the Holding Company Reorganization.

The Holding Company Reorganization was conducted pursuant to Section 251(g) of the General Corporation Law of the State of Delaware (the “DGCL”), which provides for the formation of a holding company without a vote of the stockholders of the constituent corporation. The conversion of stock occurred automatically without an exchange of stock certificates. After the Holding Company Reorganization, unless exchanged, stock certificates that previously represented shares of GEC Common Stock now represent the same number of shares of the corresponding shares of Company Common Stock. Following the consummation of the Holding Company Reorganization, Company Common Stock continues to trade on the NASDAQ Global Select Market on an uninterrupted basis under the symbol “GEG” with a new CUSIP number (#39037G 109). Immediately after consummation of the Holding Company Reorganization, the Company has, on a consolidated basis, the same assets, businesses and operations as GEC had immediately prior to the consummation of the Holding Company Reorganization.

The foregoing descriptions of the Holding Company Reorganization and Merger Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 and which is incorporated by reference herein.

Senior Convertible PIK Notes due 2030

Each of GEC’s Senior Convertible PIK Notes due 2030 (the “GEC Notes”), which were convertible into GEC Common Stock, was automatically converted into an equivalent corresponding note of the Company (collectively, the “Company Notes”), the form of which are substantially similar to the GEC Notes. All references to the issuer in such new notes will mean the Company and the notes will be convertible into shares of Company Common Stock.

The Company Notes were initially sold in a private placement to certain accredited investors (collectively, the “Notes Investors”) on February 26, 2020 pursuant to an exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 of Regulation D under the Securities Act.

The Company Notes bear interest at a fixed rate of 5.0% per annum, payable semiannually in arrears on June 30 and December 31 of each year. Interest will be paid in kind or in cash at the option of the Company. The Company Notes will mature on February 26, 2030 (the “Maturity Date”), unless earlier converted or repurchased.

Except as set forth below, each Notes Investor has the right to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Company Note at any time prior to the close of business on the second business day immediately preceding the Maturity Date into Company Common Stock at a conversion price of $3.4722 per share. The conversion price will be subject to adjustment in certain circumstances as described in the Company Notes.

If the Company undergoes a Fundamental Change (as defined in the Company Notes), subject to certain conditions, the Notes Investors may require the Company to repurchase for cash all or part of their Company Notes in integral multiples of $1,000. The Fundamental Change Repurchase Price (as defined in the Company Notes) will be equal to 100% of the principal amount of the Company Notes to be repurchased, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date (as defined in the Company Notes).

The Company may, subject to compliance with the terms of the Company Notes, effect the conversion of some or all of the Company Notes into shares of Company Common Stock, subject to certain liquidity and pricing requirements, as specified in the Company Notes.

The Company Notes provide the Notes Investors with the right to purchase additional Company Notes under certain circumstances and for customary events of default.

The foregoing description of the Company Notes does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Company Note, which is filed as Exhibit 4.4 and which is incorporated by reference herein.

Also in connection with the issuance of the Company Notes, the Company has assumed the obligations provided for in the registration rights agreement (the “Registration Rights Agreement”) entered into by GEC with the Notes Investors, pursuant to which GEC granted the Notes Investors with customary registration rights with respect to the registration of the shares of GEC Common Stock issuable upon conversion of the GEC Notes. The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is attached hereto as Exhibit 4.5 and incorporated herein by reference.

Adoption of Stockholders’ Rights Agreement

As previously announced in GEC’s Form 8-K filed with the Securities and Exchange Commission (the “Commission”) on January 29, 2018, GEC entered into a Stockholders’ Rights Agreement (the “GEC Stockholders’ Rights Agreement”) with Computershare Trust Company, N.A., a federally chartered trust company (“Computershare”), to set forth certain rights of the holders of GEC Series A Junior Participating Cumulative Preferred Stock, par value $0.001 per share (the “GEC Preferred Stock”). Effective upon consummation of the Holding Company Reorganization, (i) the parties to the GEC Stockholders’ Rights Agreement entered into Amendment No. 1 to the GEC Stockholders’ Rights Agreement (the “Amendment”), which terminated the GEC Stockholders’ Rights Agreement upon the consummation of the Holding Company Reorganization, and (ii) the Company and Computershare entered into a new Stockholders’ Rights Agreement (the “GEG Stockholders’ Rights Agreement”), pursuant to which holders of shares of the Company’s Series A Junior Participating Cumulative Preferred Stock, par value $0.001 per share (the “Company Preferred Stock”) underlying the Company Units (as defined below) pursuant to the GEG Stockholders’ Rights Agreement will have the same designations, rights, power and preferences and the qualifications, limitations and restrictions that any holders of GEC Preferred Stock would have had prior to the Holding Company Reorganization.

Rights Dividend

In connection with the Company’s adoption of the GEG Stockholders’ Rights Agreement, the board of directors of the Company declared a dividend distribution of one Preferred Stock Purchase Right (a “Company Right”) for each outstanding share of Company Common Stock, to stockholders of record as of the close of business on December 29, 2020 (the “Record Date”). Following the consummation of the Holding Company Reorganization, one Company Right will be automatically attached to each share of Company Common Stock outstanding as of between the Record Date and the Distribution Date (as hereinafter defined). Each Company Right entitles the registered holder thereof to purchase from the Company a unit consisting of one ten-thousandth of a share (a “Company Unit”) of Company Preferred Stock at a cash exercise price of $15.00 per Company Unit (the “Exercise Price”), subject to adjustment, under certain conditions specified in the GEG Stockholders’ Rights Agreement and summarized below.

Distribution Date

Initially, the Company Rights are not exercisable and are attached to and trade with all shares of Company Common Stock outstanding as of, and issued subsequent to, the Record Date. The Company Rights will separate from the Company Common Stock and will become exercisable upon the earlier of:

•

the close of business on the tenth business day following the first public announcement that a person or group of affiliated or associated persons (an “Acquiring Person”) has acquired beneficial ownership (as defined in the GEG Stockholders’ Rights Agreement using definitions from the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations thereunder) of 4.99% or more of the outstanding shares of Company Common Stock, other than as a result of repurchases of stock by the Company or certain inadvertent actions by a stockholder, or

•

the close of business on the tenth business day following the first public announcement that an Acquiring Person has acquired beneficial ownership (as defined under the GEG Stockholders’ Rights Agreement using definitions from the Exchange Act, and the rules and regulations thereunder) of 9.99% or more of the outstanding shares of Company Common Stock, other than as a result of repurchases of stock by the Company or certain inadvertent actions by a stockholder (the date of announcement under this or the preceding bullet, the “Stock Acquisition Date”); and

•

the close of business on the tenth business day (or such later day as the Independent Directors (as defined in the GEG Stockholders’ Rights Agreement) may determine) following the commencement of a tender offer or exchange offer that could result, upon its consummation, in a person or group becoming the beneficial owner of 4.99% (using the tax definitions) or 9.99% (using the Exchange Act definitions) or more of the outstanding shares of Company Common Stock (the earlier of such dates being herein referred to as the “Distribution Date”).

Notwithstanding the foregoing, with respect to any person:

•

who beneficially owns using the tax definitions 4.99% or more of the outstanding shares of Company Common Stock as of the Record Date; or

•

who beneficially owns using the Exchange Act definitions 9.99% or more of the outstanding shares of Company Common Stock as of the record date (such persons being referred to in the Agreement as a “Grandfathered Person”), the Distribution Date will not occur unless such Grandfathered Person has acquired beneficial ownership of shares of Company Common Stock representing an additional 1/2% of the outstanding shares of Company Common Stock beneficially owned as of the Record Date, for any other Grandfathered Person not listed on Schedule A of the GEG Stockholders’ Rights Agreement (the “Grandfathered Percentage”).

Process for Potential Exemption

Any person who wishes to effect any acquisition of shares of Company Common Stock that would, if consummated, result in such person:

•

beneficially owning (using the tax definitions) more than 4.99% of the outstanding shares of Company Common Stock;

•

beneficially owning (using the Exchange Act definitions) more than 9.99% of the outstanding shares of Company Common Stock; or

•

a Grandfathered Person beneficially owning more than the Grandfathered Percentage,

may request that the Independent Directors grant an exemption with respect to such acquisition under the GEG Stockholders’ Rights Agreement. The Independent Directors may deny an exemption request if they determine, in their sole discretion, that the acquisition of beneficial ownership of Company Common Stock by such person could jeopardize or endanger the availability to the Company of the net operating losses or for whatever other reason they deem reasonable, desirable or appropriate. Any exemption granted may be granted in whole or in part, and may be subject to limitations or conditions (including a requirement that the person agree that it will not acquire beneficial ownership of shares of Company Common Stock in excess of the maximum number and percentage of shares approved by the Independent Directors or that it will not request another exemption).

Subscription and Merger Rights

If a Stock Acquisition Date occurs, proper provision will be made so that each holder of a Company Right (other than an Acquiring Person or its associates or affiliates, whose Company Rights shall become null and void) will thereafter have the right to receive upon exercise, in lieu of a number of Company Units of Company Preferred Stock, that number of shares of Company Common Stock (or, in certain circumstances, including if there are insufficient shares of Company Common Stock to permit the exercise in full of the Company Rights, Company Units of Company Preferred Stock, other securities, cash or property, or any combination of the foregoing) having a market value of two times the Exercise Price of the Right (such right being referred to as the “Subscription Right”). In the event that, at any time following the Stock Acquisition Date,

•

the Company consolidates with, or merges with and into, any other person, and the Company is not the continuing or surviving corporation,

•

any person consolidates with the Company, or merges with and into the Company and the Company is the continuing or surviving corporation of such merger and, in connection with such merger, all or part of the shares of Company Common Stock are changed into or exchanged for stock or other securities of any other person or cash or any other property, or

•

50% or more of the Company’s assets or earning power is sold, mortgaged or otherwise transferred,

each holder of a Company Right (other than an Acquiring Person or its associates or affiliates, whose Company Rights shall become null and void) will thereafter have the right to receive, upon exercise, common stock of the acquiring company having a market value equal to two times the Exercise Price of the Company Right (such right being referred to as the “Merger Right”). The holder of a Company Right will continue to have the Merger Right whether or not such holder has exercised the Subscription Right. Company Rights that are or were beneficially owned by an Acquiring Person may (under certain circumstances specified in the GEG Stockholders’ Rights Agreement) become null and void.

Until a Company Right is exercised, the holder will have no rights as a stockholder of the Company (beyond those as an existing stockholder), including the right to vote or to receive dividends. While the distribution of the Company Rights will not be taxable to stockholders or to the Company, stockholders may, depending upon the circumstances, recognize taxable income in the event that the Company Rights become exercisable for Company Units, other securities of the Company, other consideration or for common stock of an acquiring company.

Exchange Feature

At any time after a person becomes an Acquiring Person, the Independent Directors may, at their option, exchange all or any part of the then outstanding and exercisable Company Rights for shares of Company Common Stock or Company Units at an exchange ratio specified in the GEG Stockholders’ Rights Agreement. Notwithstanding the foregoing, the Independent Directors generally will not be empowered to effect such exchange at any time after any person becomes the beneficial owner of 50% or more of the Company Common Stock.

Adjustments

The Exercise Price payable, and the number of Company Units or other securities or property issuable, upon exercise of the Company Rights are subject to adjustment from time to time to prevent dilution.

With certain exceptions, no adjustment in the Exercise Price will be required until cumulative adjustments amount to at least 1% of the Exercise Price. The Company is not obligated to issue fractional Company Units. If the Company elects not to issue fractional Company Units, in lieu thereof an adjustment in cash will be made based on the fair market value of the Company Preferred Stock on the last trading date prior to the date of exercise.

Redemption

The Company Rights may be redeemed in whole, but not in part, at a price of $0.001 per Company Right (payable in cash, Company Common Stock or other consideration deemed appropriate by the Independent Directors) by the Independent Directors only until the earlier of (i) 10 days after any person becomes an Acquiring Person or (ii) the expiration date of the GEG Stockholders’ Rights Agreement. Immediately upon the action of the Independent Directors ordering redemption of the Company Rights, the Company Rights will terminate and thereafter the only right of the holders of Company Rights will be to receive the redemption price.

Expiration Date

The Company Rights are not exercisable until the Distribution Date and will expire at the earlier of (i) the time when the Company Rights are redeemed as provided therein; (ii) the time when the Company Rights are exchanged as provided therein; (iii) the repeal of Section 382 of the Code if the Independent Directors determine that the Stockholders’ Rights Agreement is no longer necessary for the preservation of Tax Benefits (as defined in the Stockholders’ Rights Agreement), (iv) the beginning of the taxable year of the Company to which the board of directors of the Company (the “Board”) determines that no Tax Benefits may be carried forward or (v) the close of business on January 29, 2028.

The foregoing descriptions of the GEG Stockholders’ Rights Agreement and Company Preferred Stock do not purport to be complete and are qualified in their entirety by reference to the full text of the Certificate of Designations of Series A Junior Participating Cumulative Preferred Stock of the Company and GEG Stockholders’ Rights Agreement, which are filed as Exhibit 4.2 and Exhibit 4.3, respectively, and which are incorporated by reference herein.

Item 2.03.

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of Registrant.

The information set forth in Item 1.01 above is incorporated by reference into this Item 2.03.

Item 3.02.

Unregistered Sales of Equity Securities.

The information set forth in Item 1.01 above is incorporated by reference into this Item 3.02.

Item 3.03.

Material Modification of Rights of Securityholders.

The information set forth in Item 1.01 and Item 5.03 is hereby incorporated by reference in this Item 3.03.

Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

As of the time of the consummation of the Holding Company Reorganization, the Board consists of the same directors as the board of directors of GEC.

Directors

Name	Age	AC	NCGC	CC
Matthew A. Drapkin	47		C	X
Thomas S. Harbin III	46	X
James H. Hugar	74	C	X
James P. Parmelee	54	X		C
Peter A. Reed	41
Jason W. Reese	55
Eric J. Scheyer	55		X	X
Jeffrey S. Serota	54

AC	Audit Committee

NCGC	Nominating and Corporate Governance Committee

CC	Compensation Committee

C	Committee Chairperson

Biographical information about Matthew A. Drapkin, Thomas S. Harbin III, James H. Hugar, James P. Parmelee, Peter A. Reed, Jason W. Reese, Eric J. Scheyer and Jeffrey S. Serota is included in GEC’s Annual Report on Form 10-K under “Directors, Executive Officers and Corporate Governance” and is incorporated by reference herein.

Information about certain relationships and related transactions is included in GEC’s Annual Report on Form 10-K under “Certain Relationships and Related Transactions” and is incorporated by reference herein.

The following persons are the executive officers of the Company upon consummation of the Holding Company Reorganization with the following positions and titles:

Executive Officers

Name	Age	Position with the Company
Peter Reed	41	Chief Executive Officer
Adam Kleinman	45	President, Chief Operating Officer and Secretary
Brent Pearson	39	Chief Financial Officer and Chief Accounting Officer

Biographical information about the Company’s officers is included in GEC’s Annual Report on Form 10-K under “Directors, Executive Officers and Corporate Governance” and is incorporated by reference herein.

Executive Officer Offer Letters

In connection with the Holding Company Reorganization, on December 29, 2020, the Company entered into offer letters with each of the Executive Officers setting forth the terms of their respective employment by the Company (the “Offer Letters”). The Offer Letters replaced the previous offer letters each of the Executive Officers had with GEC (the “Previous Offer Letters”) and are materially consistent with the Previous Offer Letters, except that the Offer Letters will apply to each Executive Officer’s services as Executive Officers of the Company in addition to applying to each Executive Officer’s services as officers of Forest.

Transfer and Adoption of Compensation Plan Agreement

In connection with the Holding Company Reorganization, on December 29, 2020, the Company also entered into the Compensation Plan Agreement with GEC (the “Compensation Plan Agreement”) pursuant to which the Company assumed (including sponsorship of) the Second Amended and Restated 2006 Stock Incentive Plan, the Second Amended and Restated 1999 Director’s Equity Compensation Plan, the Amended and Restated 2016 Long Term Incentive Compensation Plan, the 2016 Employee Stock Purchase Plan and any subplans, appendices or addendums thereunder (together, the “GEC Equity Compensation Plans”), and all obligations of GEC pursuant to each stock option to purchase a share of GEC Common Stock (a “GEC Option”) and each right to acquire or vest in a share of GEC Common Stock (a “GEC Stock Award” and each of a GEC Option and a GEC Stock Award, a “GEC Equity Award”) that is outstanding immediately prior to December 29, 2020 and issued under the GEC Equity Compensation Plans and underlying grant agreements (each such grant agreement, a “GEC Equity Award Grant Agreement” and such grant agreements together with the GEC Equity Compensation Plans, the “GEC Equity Compensation Plans and Agreements”) and each such GEC Equity Award was converted into (i) with respect to each GEC Stock Award, a right to acquire or vest in a share of Company Common Stock or (ii) with respect to a GEC Option, an option to purchase a share of Company Common Stock at an exercise price per share equal to the exercise price per share of GEC Common Stock subject to such GEC Option immediately prior to December 29, 2020. On December 29, 2020, the GEC Equity Awards, the GEC Equity Compensation Plans and Agreements and any provision of any other compensatory plan, agreement or arrangement providing for the grant or issuance of shares of GEC Common Stock was automatically deemed to be amended to the extent necessary or appropriate, to provide that references to GEC in such awards, documents and provisions will be read to refer to the Company and references to shares of GEC Common Stock in such awards, documents and provisions will be read to refer to shares of Company Common Stock.

Adoption of D&O Indemnification Agreement

The directors and executive officers of the Company also entered into indemnification agreements with the Company.

The foregoing descriptions of the Offer Letters, the Compensation Plan Agreement and indemnification agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Offer Letters, the Compensation Plan Agreement and the form of indemnification agreement, which are filed as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and each of which is incorporated by reference herein.

Item 5.03.

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The Certificate of Incorporation of the Company (the “Company Charter”) and the Bylaws of the Company (the “Company Bylaws”) each identical to those of GEC immediately prior to the consummation of the Holding Company Reorganization, except for the difference in name of the corporation and the exception of certain amendments that are permissible under Section 251(g)(4) of the DGCL.

The foregoing descriptions of the Company Charter and the Company Bylaws do not purport to be complete and are qualified in their entirety by reference to the full text of the Company Charter and the Company Bylaws, which are filed as Exhibits 3.1 and 3.2 hereto, respectively, and each of which is incorporated by reference herein.

Item 5.05.

Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

On December 29, 2020, the Company adopted a Code of Conduct (the “Code”) that was approved by the Board on December 19, 2020, and which applies to all directors, officers and employees of the Company and its subsidiaries and controlled affiliates.

The description of the Code contained in this Form 8-K is qualified in its entirety by reference to the full text of the Code filed as Exhibit 14.1 to this Form 8-K. The Code is available on the Company’s website at www.greatelmcap.com. We will post amendments to the Code or waivers of the Code for directors and executive officers on the same website.

Item 8.01.

Other Items.

In connection with the Holding Company Reorganization and by operation of Rule 12g-3(a) promulgated under the Exchange Act, the Company is the successor issuer to GEC and has succeeded to the attributes of GEC as the registrant. The Company Common Stock is deemed to be registered under Section 12(b) of the Exchange Act, and the Company is subject to the informational requirements of the Exchange Act, and the rules and regulations promulgated thereunder. The Company hereby reports this succession in accordance with Rule 12g-3(f) promulgated under the Exchange Act.

The description of the Company’s capital stock provided in Exhibit 4.6, which is incorporated by reference herein, modifies and supersedes any prior description of GEC’s capital stock in any registration statement or report filed with the Commission and will be available for incorporation by reference into certain of the Company’s filings with the Commission pursuant to the Securities Act of 1933, as amended, the Exchange Act, and the rules and forms promulgated thereunder.

Item 9.01.

Financial Statements and Exhibits.

(d)

Exhibits.

Exhibit No.		Description

2.1		Agreement and Plan of Merger, dated December 21, 2020, by and among Great Elm Capital Group, Inc., Great Elm Group, Inc. and Forest Merger Sub, Inc.

3.1		Certificate of Incorporation of Great Elm Group, Inc., dated October 23, 2020

3.2		Bylaws of Great Elm Group, Inc., dated October 23, 2020

4.1		Form of Great Elm Group, Inc. Common Stock Certificate

4.2		Certificate of Designation of Series A Junior Participating Cumulative Preferred Stock of Great Elm Group, Inc., dated December 23, 2020

4.3		Stockholders’ Rights Agreement, dated December 29, 2020, by and between Great Elm Group, Inc. and Computershare Trust Company, N.A.

4.4		Form of 5.0% Convertible Senior PIK Notes due 2030

4.5		Registration Rights Agreement, dated as of February 26, 2020, by and between Great Elm Capital Group, Inc. and certain accredited investors party thereto

4.6		Description of Securities

10.1		Offer Letter, dated December 29, 2020 between Peter A. Reed and Great Elm Group, Inc.

10.2		Offer Letter, dated December 29, 2020 between Adam Kleinman and Great Elm Group, Inc.

10.3		Offer Letter, dated December 29, 2020 between Brent Pearson and Great Elm Group, Inc.

10.4		Compensation Plan Agreement, dated December 29, 2020, by and between Great Elm Capital Group, Inc. and Great Elm Group, Inc.

10.5		Form of Director and Officer Indemnification Agreement

14.1		Code of Conduct of Great Elm Group, Inc.

101		XBRL Instance Document – The instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document

104		The cover page from this current Report on Form 8-K, formatted as inline XBRL

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.


	GREAT ELM GROUP, INC.

Date: December 29, 2020	/s/ Brent J. Pearson
	By: Brent J. Pearson
	Title: Chief Financial Officer

Exhibit 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (the “Agreement”), entered into as of December 21, 2020, by and among Great Elm Capital Group, Inc., a Delaware corporation (the “Company”), Great Elm Group, Inc., a Delaware corporation (“Holdco”) and a direct, wholly owned subsidiary of the Company, and Forest Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a direct, wholly owned subsidiary of Holdco.

RECITALS

WHEREAS, as of the Effective Time, the Company will have the authority to issue 355,000,000 shares, consisting of: (a) 350,000,000 shares of common stock, par value $0.001 per share (the “Company Common Stock”), of which 26,429,839 shares will be issued and outstanding and (b) 5,000,000 shares of preferred stock, par value $0.001 per share (the “Company Preferred Stock”), of which no shares will be issued and outstanding;

WHEREAS, as of the Effective Time (as defined below), Holdco will have the authority to issue 355,000,000 shares, consisting of: (a) 350,000,000 shares of common stock, par value $0.001 per share (the “Holdco Common Stock”) and (b) 5,000,000 shares of preferred stock, par value $0.001 per share (the “Holdco Preferred Stock”);

WHEREAS, as of the date hereof, Merger Sub has the authority to issue 100 shares of common stock, par value $0.001 per share (the “Merger Sub Common Stock”), of which 100 shares are issued and outstanding on the date hereof and owned by Holdco;

WHEREAS, at the Effective Time, the designations, rights, powers and preferences, and the qualifications, limitations and restrictions of the Holdco Common Stock and Holdco Preferred Stock will be the same as those of the Company Common Stock and Company Preferred Stock, respectively;

WHEREAS, as of the Effective Time, the Company will have $30,520,844 in 5% Convertible Senior PIK Notes due 3030 (the “Company Notes”) outstanding which will be convertible into Company Common Stock;

WHEREAS, at the Effective Time, the Company Notes will automatically be exchanged for notes of Holdco (the “Holdco Notes”), the form of which Holdco Notes will be substantially similar to the Company Notes, except that (a) they will be issued by Holdco, (b) all references to the issuer in such new notes will mean Holdco and (c) the notes will be convertible into Holdco Common Stock;

WHEREAS, the Certificate of Incorporation of Holdco (the “Holdco Charter”) and the Bylaws of Holdco (the “Holdco Bylaws”), which will be in effect immediately following the Effective Time, contain provisions identical to that certain Amended and Restated Certificate of Incorporation of the Company, dated November 12, 2013, as amended by that certain (a) Certificate of Amendment, dated January 5, 2016, (b) Certificate of Amendment, dated January 8, 2016, (c) Certificate of Amendment, dated June 15, 2016 and (d) Certificate of Amendment, dated October 17, 2017 ( as so amended, the “Company Charter”) and the Amended and Restated Bylaws of the Company, dated November 12, 2013 (the “Company Bylaws”), in effect as of the date hereof and that will be in effect immediately prior to the Effective Time, respectively (other than as permitted by Section 251(g) of the General Corporation Law of the State of Delaware (the “DGCL”));

WHEREAS, Holdco and Merger Sub are newly formed corporations organized for the sole purpose of participating in the transactions herein contemplated and actions related thereto, own no assets (other than Holdco’s ownership of Merger Sub and nominal capital) and have taken no actions other than those necessary or advisable to organize the corporations and to effect the transactions herein contemplated and actions related thereto;

WHEREAS, the Company desires to reorganize into a holding company structure pursuant to Section 251(g) of the DGCL, under which Holdco would become a holding company, by the merger of Merger Sub with and into the Company, and with each share of Company Common Stock being converted in the Merger into a share of Holdco Common Stock;

WHEREAS, at the Effective Time, the Company and Holdco will enter or have entered into a Compensation Plan Agreement, pursuant to which, among other things, the Company will, at the Effective Time, transfer to Holdco, and Holdco will assume, sponsorship of all of the Company’s Equity Plans (as defined below) and all of the Company’s rights and obligations thereunder;

WHEREAS, the boards of directors of Holdco and the Company have approved and declared advisable this Agreement and the transactions contemplated hereby, including, without limitation, the Merger;

WHEREAS, the board of directors of Merger Sub has (a) approved and declared advisable this Agreement and the transactions contemplated hereby, including, without limitation, the Merger, (b) resolved to submit the approval of the adoption of this Agreement and the transactions contemplated hereby, including, without limitation, the Merger, to its sole stockholder, and (c) resolved to recommend to its sole stockholder that it approve the adoption of this Agreement and the transactions contemplated hereby, including, without limitation, the Merger; and

WHEREAS, the parties intend, for United States federal income tax purposes, (a) for the Merger to qualify as an exchange described in Section 351 of the Internal Revenue Code, and (b) for the Company’s affiliated group to not terminate in accordance with Rev. Rul. 82-152 and for HoldCo to become the new common parent of such affiliated group.

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Company, Holdco and Merger Sub hereby agree as follows:

Section 1. The Merger. In accordance with Section 251(g) of the DGCL and subject to, and upon the terms and conditions of, this Agreement, Merger Sub shall be merged with and into the Company (the “Merger”), the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger (the “Surviving Corporation”). At the Effective Time, the effects of the Merger shall be as provided in this Agreement and in Section 259 of the DGCL.

Section 2. Effective Time. The Company shall file a certificate of merger executed in accordance with the relevant provisions of the DGCL, with the Secretary of State of the State of Delaware (the “Secretary of State”) and shall make all other filings or recordings required under the DGCL to effect the Merger as of 12:01 am, Eastern Time, on December 29, 2020 or at such other date and time as the parties shall agree and specify in the certificate of merger (the date and time the Merger becomes effective being referred to herein as the “Effective Time”).

Section 3. Certificate of Incorporation. At the Effective Time, the Company Charter shall be amended in the Merger in the form of Exhibit A attached hereto, and as so amended, shall be the certificate of incorporation of the Surviving Corporation (the “Surviving Corporation Charter”) until thereafter amended as provided therein or by the DGCL.

Section 4. Bylaws. From and after the Effective Time, the Company Bylaws, as in effect immediately prior to the Effective Time, shall constitute the Bylaws of the Surviving Corporation (the “Surviving Corporation Bylaws”) until thereafter amended as provided therein or by applicable law.

Section 5. Directors. The directors of the Merger Sub in office immediately prior to the Effective Time shall be the directors of the Surviving Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified in the manner provided in the Surviving Corporation Charter and Surviving Corporation Bylaws, or as otherwise provided by law.

Section 6. Officers. The officers of the Company in office immediately prior to the Effective Time shall be the officers of the Surviving Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified in the manner provided in the Surviving Corporation Charter and Surviving Corporation Bylaws, or as otherwise provided by law.

Section 7. Additional Actions. If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either Merger Sub or the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of each of Merger Sub and the Company, all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of each of Merger Sub and the Company or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

Section 8. Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of Holdco, Merger Sub, the Company or any holder of any securities thereof:

(a) Conversion of Company Common Stock. Each share of Company Common Stock, together with attached right to purchase Company Preferred Stock, issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share, together with attached right to purchase Holdco Preferred Stock, of Holdco Common Stock.

(b) Conversion of Company Stock Held as Treasury Stock. Each share of Company Common Stock held in the Company’s treasury shall be converted into one validly issued, fully paid and nonassessable share of Holdco Common Stock, to be held immediately after completion of the Merger in the treasury of Holdco.

(c) Conversion of Capital Stock of Merger Sub. Each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation such that immediately following the Merger the Surviving Corporation shall have 100 shares of such common stock issued and outstanding.

(d) Rights of Certificate Holders. Upon conversion thereof in accordance with this Section 8, all shares of Company Common Stock shall no longer be outstanding and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock shall cease to have any rights with respect to such shares of Company Common Stock, except, in all cases, as set forth in Section 9 herein. In addition, each outstanding book-entry that, immediately prior to the Effective Time, evidenced shares of Company Common Stock shall, from and after the Effective Time, be deemed and treated for all corporate purposes to evidence the ownership of the same number of shares of Holdco Common Stock.

Section 9. Certificates. At and after the Effective Time until thereafter surrendered for transfer or exchange in the ordinary course, each outstanding certificate which immediately prior thereto represented shares of Company Common Stock and attached rights to purchase Company Preferred Stock shall be deemed for all purposes to evidence ownership of and to represent the shares of Holdco Common Stock and attached rights to purchase Holdco Preferred Stock, into which the shares of Company Common Stock represented by such certificate have been converted as herein provided and shall be so registered on the books and records of Holdco and its transfer agent. At and after the Effective Time, the shares of capital stock of Holdco shall be uncertificated; provided, that, any shares of capital stock of Holdco that are represented by outstanding certificates of the Company pursuant to the immediately preceding sentence shall continue to be represented by certificates as provided therein and shall not be uncertificated unless and until a valid certificate representing such shares pursuant to the immediately preceding sentence is delivered to Holdco at its registered office in the State of Delaware, its principal place of business, or an officer or agent of Holdco having custody of books and records of Holdco, at which time such certificate shall be canceled and in lieu of the delivery of a certificate representing the applicable shares of capital stock of Holdco, Holdco shall (i) issue to such holder the applicable uncertificated shares of capital stock of Holdco by registering such shares in Holdco’s books and records as book-entry shares, upon which such shares shall thereafter be uncertificated and (ii) take all action necessary to provide such holder with evidence of the uncertificated book-entry shares, including any action necessary under applicable law in accordance therewith, including in accordance with Sections 151(f) and 202 of the DGCL. If any certificate that prior to the Effective Time represented shares of Company Common Stock shall have been lost, stolen or destroyed, then, upon the making of an affidavit of such fact by the person or entity claiming such certificate to be lost, stolen or destroyed and the providing of an indemnity by such person or entity to Holdco, in form and substance reasonably satisfactory to Holdco, against any claim that may be made against it with respect to such certificate, Holdco shall issue to such person or entity, in exchange for such lost, stolen or destroyed certificate, uncertificated shares representing the applicable shares of Holdco Common Stock in accordance with the procedures set forth in the preceding sentence.

Section 10. Assumption of Equity Plans and Awards.

(a) At the Effective Time, pursuant to this Merger Agreement and the Compensation Plan Agreement entered into between Holdco and the Company at the Effective Time (the “Compensation Plan Agreement”), the Company will transfer to Holdco, and Holdco will assume, sponsorship of all of the Company’s Equity Plans (as defined below), along with all of the Company’s rights and obligations under the Equity Plans.

(b) At the Effective Time, pursuant to this Merger Agreement and the Compensation Plan Agreement, the Company will transfer to Holdco, and Holdco will assume, its rights and obligations under each stock option to purchase a share of Company capital stock (each, a “Stock Option”) and each right to acquire or vest in a share of Company capital stock (each, a “Stock Award” and together with the Stock Options, the “Awards”) issued under the Equity Plans that is outstanding and unexercised, unvested and not yet paid or payable immediately prior to the Effective Time, which Awards shall be converted into a stock option to purchase or a right to acquire or vest in, respectively, a share of Holdco capital stock of the same class and with the same rights and privileges relative to Holdco that such share underlying such Stock Option or Stock Award had relative to the Company immediately prior to the Effective Time on otherwise the same terms and conditions as were applicable immediately prior to the Effective Time, including, for Stock Options, at an exercise price per share equal to the exercise price per share for the applicable share of Company capital stock. For purposes of this Agreement, “Equity Plans” shall mean, collectively, the Second Amended and Restated 2006 Stock Incentive Plan, the Second Amended and Restated 1999 Directors’ Equity Compensation Plan, the Amended and Restated 2016 Long-Term Incentive Compensation Plan and the 2016 Employee Stock Purchase Plan and any and all subplans, appendices or addendums thereto, and any and all agreements evidencing Awards. Prior to the Effective Time, the Company and Holdco shall take any and all actions as are necessary to transfer to Holdco, and have Holdco assume, as of the Effective Time, the obligations or rights of the Company under any employee plan of the Company that requires express assumption by a successor entity under its terms.

Section 11. Holdco Shares. Prior to the Effective Time, the Company and Holdco shall take any and all actions as are necessary to ensure that each share of capital stock of Holdco that is owned by the Company immediately prior to the Effective Time shall be cancelled and cease to be outstanding at the Effective Time, and no payment shall be made therefor, and the Company, by execution of this Agreement, agrees to forfeit such shares and relinquish any rights to such shares.

Section 12. No Appraisal Rights. In accordance with the DGCL, no appraisal rights shall be available to any holder of shares of Company Common Stock in connection with the Merger.

Section 13. Termination. This Agreement may be terminated, and the Merger and the other transactions provided for herein may be abandoned, whether before or after the adoption of this Agreement by the sole stockholder of Merger Sub, at any time prior to the Effective Time, by action of the board of directors of the Company. In the event of termination of this Agreement, this Agreement shall forthwith become void and have no effect, and neither the Company, Holdco, Merger Sub nor their respective stockholders, directors or officers shall have any liability with respect to such termination or abandonment.

Section 14. Amendments. At any time prior to the Effective Time, this Agreement may be supplemented, amended or modified, whether before or after the adoption of this Agreement by the sole stockholder of Merger Sub, by the mutual consent of the parties to this Agreement by action by their respective boards of directors; provided, however, that, no amendment shall be effected subsequent to the adoption of this Agreement by the sole stockholder of Merger Sub that by law requires further approval or authorization by the sole stockholder of Merger Sub or the stockholders of the Company without such further approval or authorization. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the parties hereto.

Section 15. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.

Section 16. Counterparts. This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original but all of which shall constitute one and the same agreement.

Section 17. Entire Agreement. This Agreement, including the documents and instruments referred to herein, constitutes the entire agreement and supersedes all other prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

Section 18. Severability. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company, Holdco and Merger Sub have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

GREAT ELM CAPITAL GROUP, INC.

By:	/s/ Adam Kleinman
	Name:	Adam Kleinman
	Title:	President

GREAT ELM GROUP, INC.

By:	/s/ Adam Kleinman
	Name:	Adam Kleinman
	Title:	President

FOREST MERGER SUB, INC.

By:	/s/ Adam Kleinman
	Name:	Adam Kleinman
	Title:	President

[Signature Page to Agreement and Plan of Merger]

ELEVENTH AMENDED AND RESTATED CERTIFICATE OF

INCORPORATION OF
GREAT ELM CAPITAL GROUP, INC.

ARTICLE I

The name of this corporation is Forest Investments, Inc. (“Corporation”).

ARTICLE II

The address of the registered office of the Corporation in the State of Delaware is:

The Corporation Trust Company
1209 Orange Street
Wilmington, DE 19801
County of New Castle

The name of the Corporation’s registered agent at said address is The Corporation Trust Company.

ARTICLE III

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

ARTICLE IV

(A) Classes of Stock. The Corporation is authorized to issue two classes of Stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the Corporation is authorized to issue is 355,000,000 shares, each with a par value of $0.001 per share, 350,000,000 of such shares shall be Common Stock, and 5,000,000 of such shares shall be Preferred Stock.

(B) The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized, within the limitations and restrictions stated in this Certificate of Incorporation, to determine or alter the rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock and the number of shares constituting any such series and the designation thereof, or any of them; and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.

(C) No fractional shares of Common Stock of the Corporation shall be issued. No stockholder of the Corporation shall transfer any fractional shares of Common Stock of the Corporation. The Corporation shall not recognize on its stock record books any purported transfer of any fractional share of Common Stock of the Corporation.

ARTICLE V

The number of directors of the Corporation shall be fixed from time to time by a bylaw or amendment thereof or by one or more resolutions duly adopted by the Board of Directors.

ARTICLE VI

(A) The directors shall be elected for a term expiring at the next Annual Meeting.

Any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or other causes shall be filled by either (i) the affirmative vote of the holders of a majority of the voting power of the then-outstanding shares of voting stock of the corporation entitled to vote generally in the election of directors (the “Voting Stock”) voting together as a single class; or (ii) by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors determines by resolution that any such newly created directorship shall be filled by the stockholders, be filled only by the affirmative vote of the directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the unexpired term of his or her predecessor in office, if applicable, and until such director’s successor shall have been elected and qualified, or until his or her earlier death, resignation or removal. No decrease in the number of directors constituting the whole Board of Directors shall shorten the term of an incumbent director.

(B) There shall be no right with respect to shares of stock of the Corporation to cumulate votes in the election of directors.

(C) Any director, or the entire Board of Directors, may be removed from office at any time (i) with cause by the affirmative vote of the holders of at least a majority of the voting power of the then-outstanding shares of the Voting Stock, voting together as a single class; or (ii) without cause by the affirmative vote of the holders of at least 66-2/3% of the voting power of the then-outstanding shares of the Voting Stock.

ARTICLE VII

No action shall be taken by the stockholders of the Corporation other than at an annual or special meeting of the stockholders, upon due notice and in accordance with the provisions of the Corporation’s bylaws.

ARTICLE VIII

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Eleventh Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

Any act or transaction by or involving the Corporation, other than the election or removal of directors of the Corporation, that requires for its adoption under the DGCL or this Eleventh Amended and Restated Certificate of Incorporation the approval of the stockholders of the Corporation shall, in accordance with Section 251(g) of the DGCL, require, in addition, the approval of the stockholders of Great Elm Group, Inc. (or any successor thereto by merger), by the same vote as is required by the DGCL and/or this Eleventh Amended and Restated Certificate of Incorporation.

ARTICLE IX

The Board of Directors of the Corporation is expressly authorized to make, alter or repeal Bylaws of the Corporation. Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

ARTICLE X

Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

ARTICLE XI

The Corporation shall have perpetual existence.

ARTICLE XII

(A) To the fullest extent permitted by the DGCL, as the same may be amended from time to time, 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. If the DGCL is hereafter amended to authorize, with the approval of a corporation’s stockholders, further reductions in the liability of the Corporation’s directors for breach of fiduciary duty, then, a director of the Corporation shall not be liable for any such breach to the fullest extent permitted by the DGCL, as so amended.

(B) Any repeal or modification of the foregoing provisions of this Article XII shall not adversely affect any right or protection of a director of the Corporation with respect to any acts or omissions of such director occurring prior to such repeal or modification.

ARTICLE XIII

(A) To the fullest extent permitted by applicable law, the Corporation is also authorized to provide indemnification of (and advancement of expenses to) such agents (and any other persons to which Delaware law permits the Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to a corporation, its stockholders, and others.

(B) Any repeal or modification of any of the foregoing provisions of this Article XIII shall not adversely affect any right or protection of a director, officer, agent or other person existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director, officer or agent occurring prior to such repeal or modification.

ARTICLE XIV

PART I — DEFINITIONS

As used in this Article XIV, the following capitalized terms have the following meanings when used herein with initial capital letters (and any references to any portions of Treasury Regulation § 1.382-2T shall include any successor provisions):

(A) “4.99-percent Transaction” means any Transfer described in clause (a) or (b) of Part II of this Article XIV.

(B) “4.99-percent Stockholder” a Person who owns a Percentage Stock Ownership equal to or exceeding 4.99% of the Corporation’s then-outstanding Stock, whether directly or indirectly, and including Stock such Person would be deemed to constructively own or which otherwise would be aggregated with shares owned by such Person pursuant to Section 382 of the Code, or any successor provision or replacement provision and the applicable Treasury Regulations thereunder.

(D) “Board of Directors” or “Board” means the board of directors of the Corporation.

(E) “Code” means the United States Internal Revenue Code of 1986, as amended from time to time.

(F) “Corporation Security” or “Corporation Securities” means (1) any Stock, (2) shares of Preferred Stock issued by the Corporation (other than Preferred Stock described in Section 1504(a)(4) of the Code), and (3) warrants, rights, or options (including options within the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase Securities of the Corporation.

(G) “Effective Date” means January 5, 2016.

(H) “Excess Securities” has the meaning given such term in Part IV of this Article XIV.

(I) “Expiration Date” means the earliest of (1) the repeal of Section 382 of the Code or any successor statute if the Board of Directors determines that this Article XIV is no longer necessary or desirable for the preservation of Tax Benefits, (2) the close of business on the first day of a taxable year of the Corporation as to which the Board of Directors determines that no Tax Benefits may be carried forward and (3) such date as the Board of Directors shall fix in accordance with Part XII of this Article XIV.

(J) “Percentage Stock Ownership” means the percentage Stock Ownership interest of any Person or group (as the context may require) for purposes of Section 382 of the Code as determined in accordance with the Treasury Regulation § 1.382-2T(g), (h), (j) and (k) or any successor provision.

(K) “Person” means any individual, firm, corporation or other legal entity, including persons treated as an entity pursuant to Treasury Regulation § 1.382-3(a)(1)(i); and includes any successor (by merger or otherwise) of such entity.

(L) “Prohibited Distributions” means any and all dividends or other distributions paid by the Corporation with respect to any Excess Securities received by a Purported Transferee.

(M) “Prohibited Transfer” means any Transfer or purported Transfer of Corporation Securities to the extent that such Transfer is prohibited and/or void under this Article XIV.

(N) “Public Group” has the meaning set forth in Treasury Regulation § 1.382-2T(f)(13).

(O) “Purported Transferee” has the meaning set forth in Part IV of this Article XIV.

(P) “Securities” and “Security” each has the meaning set forth in Part VII of this Article XIV.

(Q) “Stock” means any interest that would be treated as “stock” of the Corporation pursuant to Treasury Regulation § 1.382-2T(f)(18).

(R) “Stock Ownership” means any direct or indirect ownership of Stock, including any ownership by virtue of application of constructive ownership rules, with such direct, indirect, and constructive ownership determined under the provisions of Section 382 of the Code and the regulations thereunder.

(S) “Tax Benefits” means the net operating loss carryforwards, capital loss carryforwards, general business credit carryforwards, alternative minimum tax credit carryforwards and foreign tax credit carryforwards, as well as any loss or deduction attributable to a “net unrealized built-in loss” of the Corporation or any direct or indirect subsidiary thereof, within the meaning of Section 382 of the Code.

(T) “Transfer” means, any direct or indirect sale, transfer, assignment, conveyance, pledge or other disposition or other action taken by a person, other than the Corporation, that alters the Percentage Stock Ownership of any Person. A Transfer also shall include the creation or grant of an option (including an option within the meaning of Treasury Regulation § 1.382-4(d). For the avoidance of doubt, a Transfer shall not include the creation or grant of an option by the Corporation, nor shall a Transfer include the issuance of Stock by the Corporation.

(U) “Transferee” means any Person to whom Corporation Securities are Transferred.

(V) “Treasury Regulations” means the regulations, including temporary regulations or any successor regulations promulgated under the Code, as amended from time to time.

PART II — TRANSFER AND OWNERSHIP RESTRICTIONS

In order to preserve the Tax Benefits, from and after the Effective Date of this Article XIV any attempted Transfer of Corporation Securities prior to the Expiration Date and any attempted Transfer of Corporation Securities pursuant to an agreement entered into prior to the Expiration Date, shall be prohibited and void ab initio to the extent that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part), either (a) any Person or Persons would become a 4.99-percent Stockholder or (b) the Percentage Stock Ownership in the Corporation of any 4.99-percent Stockholder would be increased.

PART III — EXCEPTIONS

(A) Notwithstanding anything to the contrary herein, Transfers to a Public Group (including a new Public Group created under Treasury Regulation § 1.382-2T(j)(3)(i)) shall be permitted.

(B) The restrictions set forth in Part II of this Article XIV shall not apply to an attempted Transfer that is a 4.99-percent Transaction if the transferor or the Transferee obtains the written approval of the Board of Directors or a duly authorized committee thereof. As a condition to granting its approval pursuant to this Part III of Article XIV, the Board of Directors, may, in its discretion, require (at the expense of the transferor and/or transferee) an opinion of counsel selected by the Board of Directors that the Transfer shall not result in a limitation on the use of the Tax Benefits as a result of the application of Section 382 of the Code; provided that the Board may grant such approval notwithstanding the effect of such approval on the Tax Benefits if it determines that the approval is in the best interests of the Corporation. The Board of Directors may impose any conditions that it deems reasonable and appropriate in connection with such approval, including, without limitation, restrictions on the ability of any Transferee to Transfer Stock acquired through a Transfer. Approvals of the Board of Directors hereunder may be given prospectively or retroactively. The Board of Directors, to the fullest extent permitted by law, may exercise the authority granted by this Article XIV through duly authorized officers or agents of the Corporation. Nothing in this Part III of this Article XIV shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.

PART IV — EXCESS SECURITIES

(A) No employee or agent of the Corporation shall record any Prohibited Transfer, and the purported transferee of such a Prohibited Transfer (the “Purported Transferee”) shall not be recognized as a stockholder of the Corporation for any purpose whatsoever in respect of the Corporation Securities which are the subject of the Prohibited Transfer (the “Excess Securities”). Until the Excess Securities are acquired by another person in a Transfer that is not a Prohibited Transfer, the Purported Transferee shall not be entitled, with respect to such Excess Securities, to any rights of stockholders of the Corporation, including, without limitation, the right to vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any, and the Excess Securities shall be deemed to remain with the transferor unless and until the Excess Securities are transferred to the Agent pursuant to Part V of this Article XIV or until an approval is obtained under Part III of this Article XIV. After the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer, the Corporation Securities shall cease to be Excess Securities. For this purpose, any Transfer of Excess Securities not in accordance with the provisions of Parts IV or V of this Article XIV shall also be a Prohibited Transfer.

(B) The Corporation may require as a condition to the registration of the Transfer of any Corporation Securities or the payment of any distribution on any Corporation Securities that the proposed Transferee or payee furnish to the Corporation all information reasonably requested by the Corporation with respect to its direct or indirect ownership interests in such Corporation Securities. The Corporation may make such arrangements or issue such instructions to its stock transfer agent as may be determined by the Board of Directors to be necessary or advisable to implement this Article XIV, including, without limitation, authorizing such transfer agent to require an affidavit from a Purported Transferee regarding such Person’s actual and constructive ownership of Stock and other evidence that a Transfer will not be prohibited by this Article XIV as a condition to registering any transfer.

PART V — TRANSFER TO AGENT

If the Board of Directors determines that a Transfer of Corporation Securities constitutes a Prohibited Transfer then, upon written demand by the Corporation sent within thirty days of the date on which the Board of Directors determines that the attempted Transfer would result in Excess Securities, the Purported Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the Purported Transferee’s possession or control, together with any Prohibited Distributions, to an agent designated by the Board of Directors (the “Agent”). The Agent shall thereupon sell to a buyer or buyers, which may include the Corporation, the Excess Securities transferred to it in one or more arm’s-length transactions (on the public securities market on which such Excess Securities are traded, if possible, or otherwise privately); provided, however, that any such sale must not constitute a Prohibited Transfer and provided, further, that the Agent shall effect such sale or sales in an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the Agent’s discretion, such sale or sales would disrupt the market for the Corporation Securities or otherwise would adversely affect the value of the Corporation Securities. If the Purported Transferee has resold the Excess Securities before receiving the Corporation’s demand to surrender Excess Securities to the Agent, the Purported Transferee shall be deemed to have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the Corporation grants written permission to the Purported Transferee to retain a portion of such sales proceeds not exceeding the amount that the Purported Transferee would have received from the Agent pursuant to Part VI of this Article XIV if the Agent rather than the Purported Transferee had resold the Excess Securities.

PART VI — APPLICATION OF PROCEEDS AND PROHIBITED DISTRIBUTIONS

The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the Purported Transferee has previously resold the Excess Securities, any amounts received by it from a Purported Transferee, together, in either case, with any Prohibited Distributions, as follows: (a) first, such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder; (b) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess Securities (or the fair market value at the time of the Transfer, in the event the purported Transfer of the Excess Securities was, in whole or in part, a gift, inheritance or similar Transfer) which amount shall be determined at the discretion of the Board of Directors; and (c) third, any remaining amounts shall be paid to one or more organizations qualifying under section 501(c)(3) of the Code (or any comparable successor provision) selected by the Board of Directors. The Purported Transferee of Excess Securities shall have no claim, cause of action or any other recourse whatsoever against any transferor of Excess Securities. The Purported Transferee’s sole right with respect to such shares shall be limited to the amount payable to the Purported Transferee pursuant to this Part VI of Article XIV. In no event shall the proceeds of any sale of Excess Securities pursuant to this Part VI of Article XIV inure to the benefit of the Corporation or the Agent, except to the extent used to cover costs and expenses incurred by Agent in performing its duties hereunder.

PART VII — MODIFICATION OF REMEDIES FOR CERTAIN INDIRECT TRANSFERS

In the event of any Transfer which does not involve a transfer of securities of the Corporation within the meaning of Delaware law (“Securities,” and individually, a “Security”) but which would cause a 4.99-percent Stockholder to violate a restriction on Transfers provided for in this Article XIV, the application of Parts V and VI of this Article XIV shall be modified as described in this Part VII of this Article XIV. In such case, no such 4.99-percent Stockholder shall be required to dispose of any interest that is not a Security, but such 4.99-percent Stockholder and/or any Person whose ownership of Securities is attributed to such 4.99-percent Stockholder shall be deemed to have disposed of and shall be required to dispose of sufficient Securities (which Securities shall be disposed of in the inverse order in which they were acquired) to cause such 4.99-percent Stockholder, following such disposition, not to be in violation of this Article XIV. Such disposition shall be deemed to occur simultaneously with the Transfer giving rise to the application of this provision, and such number of Securities that are deemed to be disposed of shall be considered Excess Securities and shall be disposed of through the Agent as provided in Parts V and VI of this Article XIV, except that the maximum aggregate amount payable either to such 4.99-percent Stockholder, or to such other Person that was the direct holder of such Excess Securities, in connection with such sale shall be the fair market value of such Excess Securities at the time of the purported Transfer. All expenses incurred by the Agent in disposing of such Excess Stock shall be paid out of any amounts due such 4.99-percent Stockholder or such other Person. The purpose of this Part VII of Article XIV is to extend the restrictions in Part II and V of this Article XIV to situations in which there is a 4.99-percent Transaction without a direct Transfer of Securities, and this Part VII of Article XIV, along with the other provisions of this Article XIV, shall be interpreted to produce the same results, with differences as the context requires, as a direct Transfer of Corporation Securities.

PART VIII — LEGAL PROCEEDINGS; PROMPT ENFORCEMENT

If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale thereof to the Agent within thirty days from the date on which the Corporation makes a written demand pursuant to Part V of this Article XIV (whether or not made within the time specified in Part V of this Article XIV), then the Corporation may take such actions as it deems appropriate to enforce the provisions hereof, including the institution of legal proceedings to compel the surrender. Nothing in this Part VIII of Article XIV shall (a) be deemed inconsistent with any Transfer of the Excess Securities provided in this Article XIV being void ab initio, (b) preclude the Corporation in its discretion from immediately bringing legal proceedings without a prior demand or (c) cause any failure of the Corporation to act within the time periods set forth in Part V of this Article XIV to constitute a waiver or loss of any right of the Corporation under this Article XIV. The Board of Directors may authorize such additional actions as it deems advisable to give effect to the provisions of this Article XIV.

PART IX — LIABILITY

To the fullest extent permitted by law, any stockholder subject to the provisions of this Article XIV who knowingly violates the provisions of this Article XIV and any Persons controlling, controlled by or under common control with such stockholder shall be jointly and severally liable to the Corporation for, and shall indemnify and hold the Corporation harmless against, any and all damages suffered as a result of such violation, including but not limited to damages resulting from a reduction in, or elimination of, the Corporation’s ability to utilize its Tax Benefits, and attorneys’ and auditors’ fees incurred in connection with such violation.

PART X — OBLIGATION TO PROVIDE INFORMATION

As a condition to the registration of the Transfer of any Stock, any Person who is a beneficial, legal or record holder of Stock, and any proposed Transferee and any Person controlling, controlled by or under common control with the proposed Transferee, shall provide such information as the Corporation may request from time to time in order to determine compliance with this Article XIV or the status of the Tax Benefits of the Corporation.

PART XI — LEGENDS

The Board of Directors may require that any certificates issued by the Corporation evidencing ownership of shares of Stock that are subject to the restrictions on transfer and ownership contained in this Article XIV bear the following legend:

“THE ELEVENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION (THE “CERTIFICATE OF INCORPORATION”), OF THE CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) OF STOCK OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS AND WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE “BOARD OF DIRECTORS”) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE CORPORATION (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER), THAT IS TREATED AS OWNED BY A 4.99 PERCENT STOCKHOLDER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION). IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN THE TRANSFER WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE OF THE STOCK WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) TO THE CORPORATION’S AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN THE MEANING OF THE DGCL (“SECURITIES”) BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE TERMS PROVIDED FOR IN THE CORPORATION’S CERTIFICATE OF INCORPORATION TO CAUSE THE 4.99 PERCENT STOCKHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE CERTIFICATE OF INCORPORATION, CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS.”

The Board of Directors may also require that any certificates issued by the Corporation evidencing ownership of shares of Stock that are subject to conditions imposed by the Board of Directors under Part III of this Article XIV also bear a conspicuous legend referencing the applicable restrictions.

PART XII — AUTHORITY OF BOARD OF DIRECTORS

(A) The Board of Directors shall have the power to determine all matters necessary for assessing compliance with this Article XIV, including, without limitation, (i) the identification of 4.99-percent Stockholders, (ii) whether a Transfer is a 4.99-percent Transaction or a Prohibited Transfer, (iii) the Percentage Stock Ownership in the Corporation of any 4.99-percent Stockholder, (iv) whether an instrument constitutes a Corporation Security, (v) the amount (or fair market value) due to a Purported Transferee pursuant to Part VI of this Article XIV, and (vi) any other matters which the Board of Directors determines to be relevant; and the good faith determination of the Board of Directors on such matters shall be conclusive and binding for all the purposes of this Article XIV. In addition, the Board of Directors may, to the extent permitted by law, from time to time establish, modify, amend or rescind by-laws, regulations and procedures of the Corporation not inconsistent with the provisions of this Article XIV for purposes of determining whether any Transfer of Corporation Securities would jeopardize or endanger the Corporation’s ability to preserve and use the Tax Benefits and for the orderly application, administration and implementation of this Article XIV.

(B) Nothing contained in this Article XIV shall limit the authority of the Board of Directors to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Corporation and its stockholders in preserving the Tax Benefits. Without limiting the generality of the foregoing, in the event of a change in law making one or more of the following actions necessary or desirable, the Board of Directors may, by adopting a written resolution, (i) accelerate the Expiration Date, (ii) modify the ownership interest percentage in the Corporation or the Persons or groups covered by this Article XIV, (iii) modify the definitions of any terms set forth in this Article XIV or (iv) modify the terms of this Article XIV as appropriate, in each case, in order to prevent an ownership change for purposes of Section 382 of the Code as a result of any changes in applicable Treasury Regulations or otherwise; provided, however, that the Board of Directors shall not cause there to be such acceleration or modification unless it determines, by adopting a written resolution, that such action is reasonably necessary or advisable to preserve the Tax Benefits or that the continuation of these restrictions is no longer reasonably necessary for the preservation of the Tax Benefits. Stockholders of the Corporation shall be notified of such determination through a filing with the Securities and Exchange Commission or such other method of notice as the Secretary of the Corporation shall deem appropriate.

(C) In the case of an ambiguity in the application of any of the provisions of this Article XIV, including any definition used herein, the Board of Directors shall have the power to determine the application of such provisions with respect to any situation based on its reasonable belief, understanding or knowledge of the circumstances. In the event this Article XIV requires an action by the Board of Directors but fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of this Article XIV. All such actions, calculations, interpretations and determinations which are done or made by the Board of Directors in good faith shall be conclusive and binding on the Corporation, the Agent, and all other parties for all other purposes of this Article XIV. The Board of Directors may delegate all or any portion of its duties and powers under this Article XIV to a committee of the Board of Directors as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the authority granted by this Article XIV through duly authorized officers or agents of the Corporation. Nothing in this Article XIV shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.

PART XIII — RELIANCE

To the fullest extent permitted by law, the Corporation and the members of the Board of Directors shall be fully protected in relying in good faith upon the information, opinions, reports or statements of the chief executive officer, the chief financial officer, the chief accounting officer or the corporate controller of the Corporation and the Corporation’s legal counsel, independent auditors, transfer agent, investment bankers or other employees and agents in making the determinations and findings contemplated by this Article XIV. The members of the Board of Directors shall not be responsible for any good faith errors made in connection therewith. For purposes of determining the existence and identity of, and the amount of any Corporation Securities owned by any stockholder, the Corporation is entitled to rely on the existence and absence of filings of Schedule 13D or 13G under the Securities and Exchange Act of 1934, as amended (or similar filings), as of any date, subject to its actual knowledge of the ownership of Corporation Securities.

PART XIV — BENEFITS OF THIS ARTICLE XIV

Nothing in this Article XIV shall be construed to give to any Person other than the Corporation or the Agent any legal or equitable right, remedy or claim under this Article XIV. This Article XIV shall be for the sole and exclusive benefit of the Corporation and the Agent.

PART XV — SEVERABILITY

The purpose of this Article XIV is to facilitate the Corporation’s ability to maintain or preserve its Tax Benefits. If any provision of this Article XIV or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article XIV.

PART XVI — WAIVER

With regard to any power, remedy or right provided herein or otherwise available to the Corporation or the Agent under this Article XIV, (a) no waiver will be effective unless expressly contained in a writing signed by the waiving party; and (b) no alteration, modification or impairment will be implied by reason of any previous waiver, extension of time, delay or omission in exercise, or other indulgence.

IN WITNESS WHEREOF, the undersigned has executed this Eleventh Amended and Restated Certificate of Incorporation on the 29th day of December 2020.

	/s/ Adam Kleinman
	Adam Kleinman
	President & Chief Operating Officer

Exhibit 3.1

CERTIFICATE OF INCORPORATION

GREAT ELM GROUP, INC.

I, the undersigned, for the purposes of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, do execute this Certificate of Incorporation and do hereby certify as follows:

ARTICLE I

The name of this corporation is Great Elm Group, Inc. (the “Corporation”).

ARTICLE II

The address of the registered office of the Corporation in the State of Delaware is:

The Corporation Trust Company

1209 Orange Street

Wilmington, DE 19801

County of New Castle

The name of the Corporation’s registered agent at said address is The Corporation Trust Company.

ARTICLE III

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.

ARTICLE IV

ARTICLE V

The number of directors of the Corporation shall be fixed from time to time by a bylaw or amendment thereof or by one or more resolutions duly adopted by the Board of Directors.

ARTICLE VI

(A) The directors shall be elected for a term expiring at the next Annual Meeting.

(B) There shall be no right with respect to shares of stock of the Corporation to cumulate votes in the election of directors.

ARTICLE VII

ARTICLE VIII

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 herein are granted subject to this reservation.

ARTICLE IX

ARTICLE X

ARTICLE XI

The Corporation shall have perpetual existence.

ARTICLE XII

(A) To the fullest extent permitted by the General Corporation Law of the State of Delaware, as the same may be amended from time to time, 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. If the General Corporation Law of the State of Delaware is hereafter amended to authorize, with the approval of a corporation’s stockholders, further reductions in the liability of the Corporation’s directors for breach of fiduciary duty, then, a director of the Corporation shall not be liable for any such breach to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended.

ARTICLE XIII

(A) To the fullest extent permitted by applicable law, the Corporation is also authorized to provide indemnification of (and advancement of expenses to) such agents (and any other persons to which Delaware law permits the Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law of the State of Delaware, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to a corporation, its stockholders, and others.

ARTICLE XIV

PART I — DEFINITIONS

(A) “4.99-percent Transaction” means any Transfer described in clause (a) or (b) of Part II of this Article XIV.

(D) “Board of Directors” or “Board” means the board of directors of the Corporation.

(E) “Code” means the United States Internal Revenue Code of 1986, as amended from time to time.

(G) “Effective Date” means the date of filing of this Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware.