Exhibit 4.1


 





AMENDED AND RESTATED



CERTIFICATE OF INCORPORATION



OF



RCS CAPITAL CORPORATION


 


 


Pursuant to the provisions of § 242
and § 245 of the

General Corporation Law of the State of Delaware


 


 


FIRST: The present name of the corporation
is RCS Capital Corporation (the “Corporation”). The date of filing of the original Certificate of Incorporation
of the Corporation with the Secretary of State of the State of Delaware was December 27, 2012, under the name 405 Holding Corporation.


 


SECOND: The Amended and Restated Certificate
of Incorporation herein certified has been duly adopted in accordance with the provisions of § 242 and § 245 of the General
Corporation Law of the State of Delaware.


 


THIRD: The text of the Certificate of Incorporation
of this Corporation is hereby amended and restated in its entirety as set forth in Exhibit A attached hereto.


 


FOURTH: This Amended and Restated Certificate
of Incorporation shall become effective upon the filing of this Amended and Restated Certificate of Incorporation with the Secretary
of State of the State of Delaware.


 






    	 



    	 



    

 





IN WITNESS WHEREOF, RCS Capital Corporation
has caused this Amended and Restated Certificate of Incorporation to be executed by the undersigned officer, thereunto duly authorized,
this 4th day of June, 2013.


 


RCS CAPITAL CORPORATION



 



 


 


By:  /s/ William M. Kahane                         


Name: William M. Kahane


Title: Chief Executive Officer
and Director


 






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AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION



OF



RCS CAPITAL CORPORATION








 


ARTICLE
1 


 


Section 1.01.     
Name. The name of the corporation is RCS Capital Corporation (the “Corporation”).


 


ARTICLE
2 


 


Section 2.01.     
Address. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, City
of Wilmington, County of New Castle, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.


 


ARTICLE
3 


 


Section 3.01.     
Purpose. 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 as the same exists or may hereafter be amended (“Delaware
Law”).


 


ARTICLE
4 


 


Section 4.01.     
Capitalization. The total number of shares of stock that the Corporation shall have authority to issue is 300,000,000,
consisting of (a) 100,000,000 shares of Class A Common Stock, par value $0.001 per share (the “Class A Common Stock”),
(b) 100,000,000 shares of Class B Common Stock, par value $0.001 per share (the “Class B Common Stock,” and
together with the Class A Common Stock, the “Common Stock”), and (c) 100,000,000 shares of Preferred Stock,
par value $0.001 per share (the “Preferred Stock”). Holders of capital stock of the Corporation do not have
preemptive rights. Upon this Amended and Restated Certificate of Incorporation of the Corporation becoming effective pursuant to
the General Corporation Law of the State of Delaware (the “Effective Time”), each share of the Corporation’s
common stock, $.01 par value, issued and outstanding immediately prior to the Effective Time will be automatically reclassified
as and converted, without further action on the part of the Corporation or any holder of such common stock, into 240,000 fully
paid and non-assessable shares of Class B Common Stock.


 


Section 4.02.     
Common Stock.


 


(a)         
Voting Rights.


 


(i)     Each
holder of Class A Common Stock, as such, shall be entitled to one vote for each share of Class A Common Stock held of record by
such holder on all matters on which stockholders generally are entitled to vote; provided, however, that, except
as otherwise required by law, holders of Class A Common Stock, as such, shall not be entitled to vote on any amendment to this
Amended and Restated Certificate of Incorporation (including, without limitation, any certificate of designations relating to
any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders
of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote
thereon pursuant to this Amended and Restated Certificate of Incorporation (including, without limitation, any certificate of
designations relating to any series of Preferred Stock) or pursuant to Delaware Law.


 






    	 



    	 



    

 


(ii)    Each
holder of Class B Common Stock, as such, shall, on all matters on which stockholders generally are entitled to vote, be entitled
to vote the greater of (A) four votes for each share of Class B Common Stock held of record by such holder and (B) such number
of votes for each share of Class B Common Stock held of record by such holder as shall equal the quotient derived by dividing
(1) the sum of (I) the aggregate number of votes entitled to be cast by all holders of all outstanding shares of Class A Common
Stock, Preferred Stock and any other outstanding shares of capital stock of the Corporation, plus (II) one, by (2) the total number
of outstanding shares of Class B Common Stock, with such quotient rounded up to the next highest number; provided, however,
that, except as otherwise required by law, holders of Class B Common Stock, as such, shall not be entitled to vote on any amendment
to this Amended and Restated Certificate of Incorporation (including, without limitation, any certificate of designations relating
to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the
holders of such affected series are entitled, either separately or together with the holders of one or more other such series,
to vote thereon pursuant to this Amended and Restated Certificate of Incorporation (including, without limitation, any certificate
of designations relating to any series of Preferred Stock) or pursuant to Delaware Law.


 


(iii)   Except as otherwise required in this Amended and Restated Certificate of Incorporation or by applicable law, the holders
of Common Stock shall vote together as a single class on all matters (or, if any holders of Preferred Stock are entitled to vote
together with the holders of Common Stock, as a single class with such holders of Preferred Stock).


 


(b)         Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred
Stock or any class or series of stock having a preference over or the right to participate with the Class A Common Stock and Class
B Common Stock with respect to the payment of dividends, (i) dividends may be declared and paid on the Class A Common Stock out
of the assets of the Corporation that are by law available therefor at such times and in such amounts as the Board of Directors
of the Corporation (the “Board”) in its discretion shall determine; provided, however, that if dividends
are declared that are payable in shares of Class A Common Stock or Class B Common Stock or in rights, options, warrants or other
securities convertible or exercisable into or exchangeable for shares of Class A Common Stock or Class B Common Stock, dividends
shall be declared that are payable at the same rate on Class A Common Stock or Class B Common Stock and the dividends payable in
shares of Class A Common Stock or in rights, options, warrants or other securities convertible or exercisable into or exchangeable
for shares of Class A Common Stock shall be payable to holders of Class A Common Stock, and the dividends payable in shares of
Class B Common Stock or in rights, options, warrants or other securities convertible or exercisable into or exchangeable for shares
of Class B Common Stock shall be payable to holders of Class B Common Stock, and (ii) dividends shall not be declared or paid on
the Class B Common Stock (other than as aforesaid).


 






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(c)         Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the
Corporation and of the preferential and other amounts, if any, to which the holders of Preferred Stock shall be entitled, the holders
of all outstanding shares of Class A Common Stock shall be entitled to receive, on a pro rata basis, the remaining assets
of the Corporation available for distribution ratably in proportion to the number of shares held by each such stockholder. The
holders of shares of Class B Common Stock, as such, shall not be entitled to receive any assets of the Corporation in the
event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.


 


(d)         Retirement of Class B Common Stock. No holder of Class B Common Stock may transfer shares of Class B Common Stock
to any person unless such holder transfers a corresponding number of Class B Units of the Operating Subsidiaries to the same person
in accordance with, and as defined in, the Amended and Restated Limited Liability Company Agreements of the Operating Subsidiaries,
as such agreements may be amended from time to time in accordance with the terms thereof, a copy of which will be provided to any
stockholder of the Corporation upon request therefor. If any outstanding share of Class B Common Stock ceases to be held by a holder
of a Membership Interest, such share shall automatically and without further action on the part of the Corporation or any holder
of Class B Common Stock be transferred to the Corporation and retired. As used in this Amended and Restated Certificate of Incorporation,
(i) “Operating Subsidiaries” means Realty Capital Securities, LLC, RCS Advisory Services, LLC, and American
National Stock Transfer, LLC, each Delaware limited liability companies, and their respective successors thereto, (ii) “Membership
Interest” means, collectively, a membership interest in each of the Operating Subsidiaries, having the rights, preferences
and privileges as set forth Amended and Restated Limited Liability Company Agreements of the Operating Subsidiaries, as the same
may be amended or amended and restated from time to time in accordance with the terms thereof, and (ii) “person”
means any individual, firm, corporation, partnership, limited liability company, trust, joint venture or other enterprise or entity.


 


Section 4.03.     
Preferred Stock. (a) The Board is hereby empowered to authorize by resolution or resolutions from time to time
the issuance of one or more series of Preferred Stock and to fix the designations, powers, preferences and relative, participating,
optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such
series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number
of authorized shares of any such class or series to the extent permitted by Delaware Law.


 


(b)         Except as otherwise required by law, holders of a series of Preferred Stock, as such, shall be entitled only to such voting
rights, if any, as shall expressly be granted thereto by this Amended and Restated Certificate of Incorporation (including, without
limitation, any certificate of designations relating to such series).


 






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Section 4.04.     
Changes in Common Stock. If the Corporation in any manner subdivides or combines the outstanding shares of Class
A Common Stock, the outstanding shares of the Class B Common Stock shall be proportionately subdivided or combined, as the case
may be. If the Corporation in any manner subdivides or combines the outstanding shares of Class B Common Stock, the outstanding
shares of Class A Common Stock shall be proportionately subdivided or combined, as the case may be.


 


Section 4.05.     
Reorganization or Merger. In the case of any reorganization, share exchange, consolidation, conversion or merger
of the Corporation with or into another person in which shares of Class A Common Stock are converted into (or entitled to receive
with respect thereto) shares of stock and/or other securities or property (including, without limitation, cash), each holder of
a share of Class A Common Stock shall be entitled to receive with respect to each such share the same kind and amount of shares
of stock and other securities and property (including, without limitation, cash). In the event that the holders of shares of Class
A Common Stock are granted rights to elect to receive one of two or more alternative forms of consideration, the foregoing provision
shall be deemed satisfied if holders of shares of Class A Common Stock are granted substantially identical election rights, as
the case may be. In connection with any reorganization, share exchange, consolidation, conversion or merger of the Corporation
with or into another person, the Corporation shall not adversely affect, alter, repeal, change or otherwise impair any of the powers,
preferences, rights or privileges of the Class B Common Stock (whether directly, by the filing of a certificate of designations,
powers, preferences, rights or privileges, by reorganization, share exchange, consolidation, conversion or merger or otherwise),
including, without limitation (i) any of the voting rights of the holders of the Class B Common Stock, and (ii) the requisite vote
or percentage required to approve or take any action described in this ARTICLE 4, in ARTICLE 11 or elsewhere in this
Amended and Restated Certificate of Incorporation or described in the by-laws of the Corporation, without in each case the affirmative
vote of the holders of a majority of the shares of Class B Common Stock, voting as a separate class.


 


ARTICLE
5 


 


Section 5.01.     
By-laws. In furtherance and not in limitation of the powers conferred by Delaware Law, the Board is expressly authorized
to make, amend, alter, change, add to or repeal the by-laws of the Corporation without the assent or vote of the stockholders in
any manner not inconsistent with Delaware Law or this Amended and Restated Certificate of Incorporation. Notwithstanding anything
to the contrary contained in this Amended and Restated Certificate of Incorporation, the affirmative vote of the holders of at
least a majority of the voting power of all then outstanding shares of stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required for the stockholders to make, amend, alter, change,
add to or repeal any provision of the by-laws of the Corporation.


 


ARTICLE
6 


 


Section 6.01.     
Board of Directors. (a) The business and affairs of the Corporation shall be managed by or under the direction
of the Board which shall consist of not less than three nor more than ten directors, the exact number of directors to be determined
from time to time solely by resolution adopted by the affirmative vote of a majority of the entire Board.


 






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(b)         Directors shall be nominated by the Board and elected by the affirmative vote of a majority of the voting power of all then
outstanding shares of stock of the Corporation entitled to vote generally in the election of directors which are present in person
or by proxy at an annual meeting of stockholders at which a quorum is present. Each director shall hold office for a term of one
(1) year, until the next annual meeting of stockholders, or (if longer) until a successor has been duly elected and qualified or
until the earlier death, resignation or removal of such director. Directors may be elected to an unlimited number of successive
terms. Directors need not be elected by written ballot unless the by-laws of the Corporation so provide. There shall be no cumulative
voting in the election of directors.


 


(c)         Vacancies
on the Board resulting from death, resignation, removal or otherwise and newly created directorships resulting from any increase
in the number of directors may be filled solely by a majority of the directors then in office (although less than a quorum) or
by the sole remaining director, and each director so elected shall hold office for a term that shall coincide with the term to
which such director shall have been elected and until his or her successor is elected and qualified or until his or her earlier
resignation or removal.


 


(d)         No director may be removed from office by the stockholders except with the affirmative vote of the holders of not less than
a majority of the total voting power of all outstanding securities of the Corporation then entitled to vote generally in the election
of directors, voting together as a single class.


 


(e)         Notwithstanding the foregoing, whenever the holders of one or more classes or series of Preferred Stock shall have the right,
voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other
features of such directorships shall be governed by the terms of the resolution or resolutions adopted by the Board pursuant to
ARTICLE 4 applicable thereto, and such directors so elected shall not be subject to the provisions of this ARTICLE 6
unless otherwise provided therein.


 


ARTICLE
7 


 


Section 7.01.     
Meetings of Stockholders. Any action required or permitted to be taken at any annual or special meeting of stockholders
may be taken only upon the vote of stockholders at an annual or special meeting duly noticed and called in accordance with Delaware
Law, as amended from time to time; provided, however, that any action required or permitted to be taken by the holders
of Class A Common Stock or Class B Common Stock, in each case voting separately as a class, or, to the extent expressly permitted
by the certificate of designation relating to one or more series of Preferred Stock, by the holders of such series of Preferred
Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed
by the holders of outstanding shares of the relevant class or series having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or
to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
Special meetings of the stockholders may be called by the Board, the Chairman of the Board or the Chief Executive Officer of the
Corporation and may not be called by any other person. Notwithstanding the foregoing, whenever holders of one or more classes or
series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, such holders may call,
pursuant to the terms of the resolution or resolutions adopted by the Board pursuant to ARTICLE 4 hereto, special meetings
of holders of such Preferred Stock.


 






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ARTICLE
8 


 


Section 8.01.     
Limited Liability of Directors. No director of the Corporation will have any personal liability to the Corporation
or its stockholders for monetary damages for any breach of fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under Delaware Law as the same exists or hereafter may be amended. Neither the
amendment nor the repeal of this ARTICLE 8 shall eliminate or reduce the effect thereof in respect of any matter occurring,
or any cause of action, suit or claim that, but for this ARTICLE 8, would accrue or arise, prior to such amendment or repeal.


 


ARTICLE
9 


 


Section 9.01.     
Corporate Opportunities. (a) In anticipation that the directors, officers and employees of RCAP Holdings, LLC,
its subsidiaries and affiliates (collectively with RCAP Holdings, LLC, its subsidiaries and affiliates, “RCAP”)
may serve as officers or directors of both RCAP and the Corporation and may engage in, and are permitted to have, investments or
other business relationships, ventures, agreements or arrangements with entities engaged in, the same or similar activities or
lines of business, and in recognition of (a) the benefits to be derived by the Corporation through the continued service of such
officers and directors, and (b) the difficulties attendant to any officer or director, who desires and endeavors fully to satisfy
his or her fiduciary duties, in determining the full scope of such duties in any particular situation, the provisions of this ARTICLE
9 are set forth to regulate, define and guide the conduct of certain affairs of the Corporation as they may involve such officers
and directors, and the powers, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in
connection therewith.


 


(b)         RCAP
shall not have a duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business
as the Corporation; and no officer or director of the Corporation who is a director, officer or employee of RCAP shall be liable
to the Corporation or its stockholders for breach of any fiduciary duty by reason of any such activities. The Corporation hereby
renounces any interest or expectancy in being offered an opportunity to participate in any such business or opportunity. If the
officers and directors of RCAP acquire knowledge of a potential transaction or matter that may be a corporate opportunity for
the Corporation, such officers and directors shall have no duty to communicate or offer such corporate opportunity to the Corporation
and shall not be liable to the Corporation or its stockholders for breach of any fiduciary duty by reason of the fact that such
corporate opportunity is not communicated or offered to the Corporation unless such corporate opportunity is offered to such person
in his or her capacity as a director or officer of the Corporation.


 






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(c)         Any
person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have
notice of and to have consented to the provisions of this ARTICLE 9.


 


(d)         None
of the alteration, amendment, change and repeal of any provision of this ARTICLE 9 nor the adoption of any provision of
this Amended and Restated Certificate of Incorporation inconsistent with any provision of this ARTICLE 9 shall eliminate
or reduce the effect of this ARTICLE 9 in respect of any matter occurring, or any cause of action, suit or claim that,
but for this ARTICLE 9, would accrue or arise, prior to such alteration, amendment, change, repeal or adoption.


 


ARTICLE
10 


 


Section 10.01. 
Severability. If any provision or provisions of this Amended and Restated Certificate of Incorporation shall be held
to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (a) the validity, legality and
enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate
of Incorporation (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate of Incorporation
containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Amended and
Restated Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Amended and Restated
Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so
as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their
good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.


 


ARTICLE
11 


 


Section 11.01. 
Amendment. The Corporation reserves the right to amend this Amended and Restated Certificate of Incorporation in
any manner permitted by Delaware Law and all rights and powers conferred upon stockholders, directors and officers herein are granted
subject to this reservation. Notwithstanding the foregoing, the provisions set forth in ARTICLES 4, 5, 6,
7, 8, 11 and 12 may not be repealed or amended in any respect, and no other provision may be adopted,
amended or repealed which would have the effect of modifying or permitting the circumvention of the provisions set forth in ARTICLES
4, 5, 6, 7, 8, 11 and 12, unless such action is approved by consent of a majority
of members of the Board then in office and the affirmative vote of the holders of not less than a majority of the total voting
power of all outstanding securities of the Corporation then entitled to vote generally in the election of directors, voting together
as a single class.


 


Section 11.02. 
Notwithstanding the foregoing or anything else in this Amended and Restated Certificate of Incorporation, (a) any amendment,
waiver, alteration or repeal of any provision of, or addition to, this Amended and Restated Certificate of Incorporation or to
the by-laws of the Corporation that would adversely affect, alter, repeal, change or otherwise impair any of the powers, preferences,
rights or privileges of the Class B Common Stock (whether directly, by the filing of a certificate of designations, powers, preferences,
rights or privileges, by a reorganization, share exchange, consolidation, conversion or merger or otherwise), including, without
limitation (i) any of the voting rights of the holders of the Class B Common Stock, and (ii) the requisite vote or percentage required
to approve or take any action described in this ARTICLE 11, in ARTICLE 4 or elsewhere in this Amended and Restated
Certificate of Incorporation or described in the by-laws of the Corporation, also must be approved by the affirmative vote of the
holders of a majority of the outstanding shares of Class B Common Stock, voting as a separate class, and (b) the number of authorized
shares of Class A Common Stock or Class B Common Stock may be increased or decreased (but not below the number of shares of Class
A Common Stock or Class B Common Stock) by the affirmative vote of the holders of a majority of the voting power of all of the
outstanding shares of Class A Common Stock and Class B Common Stock, voting together as a single class.


 






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ARTICLE
12 


 


Section 12.01. 
Forum Selection. The Court of Chancery of the State of Delaware (the "Court of Chancery") shall
be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (a) any derivative action or proceeding
brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director,
officer or employee of the Corporation to the Corporation or the Corporation's stockholders, (c) any action asserting a claim
against the Corporation, its directors, officers or employees arising pursuant to any provision of Delaware Law, this Amended and
Restated Certificate of Incorporation or the by-laws of the Corporation, or (d) any action asserting a claim against the Corporation,
its directors, officers or employees governed by the internal affairs doctrine, except for, as to each of (a) through (d) above,
any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of
the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within
ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court
of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. If any provision or provisions of this
ARTICLE 12 shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for
any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions
in any other circumstance and of the remaining provisions of this ARTICLE 12 (including, without limitation, each portion
of any sentence of this ARTICLE 12 containing any such provision held to be invalid, illegal or unenforceable that is not
itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances
shall not in any way be affected or impaired thereby.


 


 


 


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