AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AUDIOVOX COMMUNICATIONS CORP.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
We the undersigned, being, respectively, the President and Secretary,
hereby certify as follows:
The name of the corporation (the "Corporation") is Audiovox Communications
Corp., formerly known as Audiovox Cellular Communications Corp.
The original Certificate of Incorporation was filed with the Secretary of
State of the State of Delaware on May 26, 1995.
A Certificate of Amendment of the Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
April 22, 1996 changing the name to Audiovox Communications Corp..
In accordance with Sections 242 and 245 of the General Corporation Law of
the State of Delaware (the "DGCL"), this Amended and Restated Certificate of
Incorporation (a) has been duly proposed by resolutions adopted and declared
advisable by the Board of Directors of the Corporation, (b) approved by the
stockholders of the Corporation at a special meeting of stockholders, duly
called and held upon notice in accordance with Section 222 of the DGCL, and (c)
duly executed by an officer of the Corporation in accordance with Section 103 of
the DGCL and, upon filing with the Secretary of State in accordance with Section
103, shall supersede the original Certificate of Incorporation, as amended, and
shall, as it may thereafter be amended in accordance with its terms and
applicable law, be the Certificate of Incorporation of the Corporation.
Pursuant to Section 103(d) of the DGCL, this Amended and Restated
Certificate of
Exhibit 99.9
1
Incorporation shall become effective immediately upon filing.
The text of the Certificate of Incorporation of the Corporation, as amended
heretofore, is hereby amended and restated to read as stated on Exhibit A
hereto.
7. The restated certificate was authorized and adopted by the Board of
Directors in accordance with Section 245(B) of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, we have hereunto signed our names and affirm that the
statements made herein are true under the penalties of perjury, this 29th day of
May, 2002.
AUDIOVOX COMMUNICATIONS CORP.,
a Delaware corporation
By: s/ Philip Christopher
-------------------------------
Philip Christopher, President
By: s/ Charles M. Stoehr
-------------------------------
Charles M. Stoehr, Secretary
Exhibit 99.9
2
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
AUDIOVOX COMMUNICATIONS CORP.
FIRST: The name of the Corporation is Audiovox Communications Corp. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 2 West Lockerman Street, in the City of Dover, County of Kent,
19904, and the name of its registered agent at such address is National
Corporate Services, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock the Corporation has authority
to issue is sixteen hundred (1,600) shares, of which fifteen hundred (1,500)
shall be Class A Common Stock, no par value per share (the "Class A Common
Stock"), and one hundred (100) shall be Class B Common Stock, no par value per
share (the "Class B Common Stock").
The Class A Common Stock and the Class B Common Stock shall be identical in
all respects and shall have equal rights and privileges, except as otherwise
hereinafter provided.
1. Election of Directors
(a) The Board of Directors of the Corporation shall consist of five (5)
directors.
(b) With respect to the election of directors, holders of a
majority-in-interest of Class A Common Stock voting as a separate class
shall be entitled to elect four (4) directors. Holders of a
majority-in-interest of Class B Common Stock voting as a separate class
shall be entitled, subject to section 1(e) of this Article Fourth, to elect
one (1) director. Directors elected by the holders of Class A Common Stock,
voting as a separate class, shall be designated as "Class A Directors".
Directors elected by the holders of Class B Common Stock, voting as a
separate class, shall be designated as "Class B Directors". Directors
elected by the holders of Class A Common Stock and Class B Common Stock,
voting together as a single class pursuant to section 1(e) of this Article
Fourth, shall be designated as "Joint Directors".
(c) Holders of Class A Common Stock shall vote as a separate class on the
removal, without cause, of any Class A Director. Holders of Class B Common
Stock shall vote as a separate class on the removal, without cause, of any
Class B Director. Holders of Class A Common Stock and Class B Common Stock
shall vote together as a single class on the removal, with cause, of any
Class A Director or Class B Director and on the removal, with or without
cause, of any Joint Director.
Exhibit 99.9
3
(d) Any vacancy in the office of a Class A Director may be filled by a vote of
the holders of Class A Common Stock voting as a separate class. Any vacancy
in the office of a Class B Director shall be filled by a vote of the
holders of Class B Common Stock voting as a separate class. Any vacancy in
the office of a Joint Director shall be filled by a vote of holders of
Class A Common Stock and Class B Common Stock, voting together as a single
class.
(e) Following a Qualified IPO, so long as the shares of Class B Common Stock
that are outstanding or then issuable upon conversion collectively
constitute at least ten percent (10%) of the Corporation's Common Stock
then issued and outstanding, the holders of Class B Common Stock shall
continue to have the right voting as a separate class to elect one (1)
Class B Director as provided in this section 1 of this Article Fourth;
provided that the holders of Class B Common Stock shall not have such Class
B Director election right if, notwithstanding the Corporation's good faith
efforts to preserve such Class B Director election right, the managing
underwriter for the Qualified IPO advises the Board of Directors of the
Corporation in writing that the retention of the Class B Director election
right following a Qualified IPO would harm the Corporation's prospects for
achieving a Qualified IPO. In such case, the holders of the Class B Common
Stock shall cease to have the right to elect one (1) Class B Director, and
holders of Class A Common Stock and holders of Class B Common Stock voting
together as a single class shall be entitled to elect all of the directors.
(f) Except as otherwise specifically stated in this Article Fourth, shares of
Class A Common Stock may be issued by the Corporation from time to time as
approved by the Board of Directors without the approval of the
stockholders. No shares of Class B Common Stock may be issued by the Board
of Directors without the prior approval of a majority-in-interest of the
holders of Class B Common Stock, voting as a separate class.
(g) The holders of the Class A Common Stock and the holders of the Class B
Common Stock shall be entitled to vote as separate classes only (i) when
required by law to do so irrespective of the limitations placed herein on
the voting rights of such stockholders, or (ii) where a separate class vote
is required by specific provisions therefor in this Certificate of
Incorporation.
(h) Notwithstanding anything in this section 1 of Article Fourth to the
contrary, the holders of Class A Common Stock shall have exclusive voting
power on all matters at any time when no Class B Common Stock is issued and
outstanding, and the holders of Class B Common Stock shall have exclusive
voting power on all matters at any time when no Class A Common Stock is
issued and outstanding.
2. Extraordinary Approval Items
Notwithstanding any other provision contained in this Certificate of
Incorporation, the Corporation shall not take or agree to take, and shall not
permit any of its controlled Affiliates to take or agree to take, directly or
indirectly, any of the following actions ("Extraordinary Approval Items")
without the prior written approval of the holders of a majority- in-interest of
the then outstanding shares of Class B Common Stock:
(a) Amend or modify any of its Organizational Documents;
Exhibit 99.9
4
(b) Engage in any line of business that is outside the scope of the
Corporation's business;
(c) Other than in the ordinary course of the Corporation's business, make any
capital or other expenditures that, individually or together with all
related expenditures, exceed twenty percent (20%) of the fair value of the
total assets of the Corporation;
(d) Other than in the ordinary course of the Corporation's business, incur,
guarantee or otherwise become liable for, or grant Liens with respect to,
any indebtedness that, individually or together with all related
indebtedness, exceeds twenty percent (20%) of the fair value of the total
assets of the Corporation;
(e) Issue or sell capital stock (or any rights to acquire capital stock) other
than common stock;
(f) Declare or pay any dividends or other distributions (in cash or other
property) on account of any equity securities, or redeem, retire, purchase
or otherwise acquire any equity securities, other than to or from all
stockholders on a pro rata basis in accordance with their respective
holdings;
(g) Other than in the ordinary course of the Corporation's business, pay,
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
indebtedness (including debt securities) that, individually or together
with all related indebtedness, exceeds twenty percent (20%) of the fair
value of the total assets of the Corporation, other than at maturity or
pursuant to fixed or mandatory prepayments, redemptions or sinking funds in
accordance with the terms of the applicable indebtedness;
(h) Merge or consolidate with or into another Person;
(i) Other than in the ordinary course of the Corporation's business, sell,
lease or otherwise dispose of assets that, individually or together with
all related disposed assets, exceed twenty percent (20%) of the fair value
of the total assets of the Corporation;
(j) Other than in the ordinary course of the Corporation's business, (1)
purchase or otherwise acquire (whether through a stock purchase, asset
purchase, stock swap or otherwise) any business or assets that,
individually or together with all related acquired business or assets,
exceed twenty percent (20%) of the fair value of the total assets of the
Corporation, or (2) enter into, terminate or materially amend the terms of
any joint venture, partnership or similar transaction that, individually or
together with all related transactions being undertaken, represent assets
of the Corporation exceeding twenty percent (20%) of the fair value of the
total assets of the Corporation;
(k) Except for Contracts with underwriters in connection with the Corporation's
initial public offering, enter into or amend any Contract that is outside
the ordinary course of the Corporation's business and, individually or
together with related Contracts, involves aggregate commitments in excess
of twenty percent (20%) of the fair value of the total assets of the
Corporation;
Exhibit 99.9
5
(l) Change its independent accountants;
(m) Enter into or amend any Contract between the Corporation or its controlled
Affiliates, on the one hand, and Audiovox or its Affiliates or their
respective associates, on the other hand, except for any Contracts or
amendments thereto that are in good faith, in the ordinary course of
business, and on terms that are at least as favorable to the Corporation as
those available from third parties that are unaffiliated with Audiovox;
(n) File a petition for bankruptcy, dissolution or liquidation, make a general
assignment for the benefit of creditors, appoint a receiver or trustee to
take possession of all or substantially all of its assets, or take any
other action with respect to winding up and dissolution; or
(o) Adopt or amend any employee equity incentive plan providing that the
holders' rights under the plan will be triggered or exercisable in case of
a change of control of the Corporation (whether through an acquisition of a
majority of Corporation's capital stock, an acquisition of all or
substantially all of Corporation's assets or a similar event conveying
control of the Corporation).
3. Definitions
"Affiliate" of a specified Person means any Person that controls, is
controlled by or is under common control with such specified Person. For
purposes of this definition, "control" shall mean the possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or other ownership interests, by
contract or otherwise).
"Associate" of a Person means:
(i) any officer or director of such Person, or other Person serving in
a similar role with respect to such Person;
(ii) any corporation or other entity of which such Person or any
Person specified in clause (i) is an officer, partner, manager or Person
serving in a similar role, or is, directly or indirectly, the beneficial
owner of 5% or more of any class of equity securities;
(iii) any trust or other estate in or as to which such Person or any
Person specified in clauses (i) or (ii) has a 10% or greater beneficial
interest or serves as trustee or in a similar capacity; or
(iv) any relative or spouse of such Person or any Person specified in
clause (i), or any relative of such spouse.
"Audiovox" means Audiovox Corporation, a Delaware corporation.
"Contract" means any contract, agreement, lease, plan, instrument or
other document, commitment, arrangement, undertaking, practice,
understanding or authorization, in each case whether or not in writing.
Exhibit 99.9
6
"Lien" means any lien, mortgage, security interest, pledge, restriction on
transferability, defect of title or other claim, charge or encumbrance of any
nature whatsoever on any property or property interest, including any
restriction on the use, voting, transfer, receipt of income or other exercise of
any attributes of ownership.
"Organizational Documents" of a Person means its certificate of
incorporation, bylaws or other organizational documents.
"Person" means a natural individual, governmental authority, partnership,
firm, corporation or other entity.
"Qualified IPO" means a public offering of Common Stock by the Corporation
registered under the Securities Act of 1933 in which (i) the proceeds received
by the Corporation for the sale of shares is at least Fifty Million Dollars
($50,000,000) net of underwriting discounts and commissions, or (ii) Common
Stock sold to public investors (which for purposes of clarification shall not
include Audiovox or its Affiliates or Associates) represents at least ten
percent (10%) of the outstanding Common Stock upon the consummation of the
offering.
4. Conversion
(a) Each share of Class B Common Stock may at any time be converted by the
holder thereof into one (1) fully paid and nonassessable share of Class A Common
Stock. Any such conversion shall be effected by the surrender by the record
holder thereof of the certificate representing such share of Class B Common
Stock to be converted, duly endorsed, to the Corporation, at the principal
executive offices of the Corporation, or any transfer agent for the
Corporation's Common Stock, together with a written notice of the election by
the record holder thereof to convert, and (if so required by the Corporation or
the transfer agent) by instruments of transfer in form satisfactory to the
Corporation or the transfer agent. Such written notice shall state the name or
names in which such holder desires the certificate or certificates for such
Class A Common Stock to be issued and the number of shares of Class B Common
Stock to be converted. A conversion shall be deemed to have occurred at the
close of business on the date when the Corporation or the transfer agent has
received the prescribed written notice, the required certificate or certificates
and any such instruments of transfer and the person or persons entitled to
receive the Class A Common Stock issuable on such conversion shall be treated
for all purposes as the record holder or holders of such Class A Common Stock on
that date. The Corporation or the transfer agent shall issue and deliver to such
holder, or such holder's nominee or nominees, a certificate or certificates
representing the number of shares of Class A Common Stock to which such holder
shall be entitled as soon as practicable thereafter. In no event, upon
conversion of any shares of Class B Common Stock into shares of Class A Common
Stock, shall any allowance or adjustment be made in respect of dividends on the
Class B Common Stock or Class A Common Stock. Any such conversion shall be made
without charge for any stamp or similar tax in respect of the issuance of the
certificate or certificates for the shares of Class A Common Stock issued in
connection with such conversion, unless such certificate is to be issued in a
name other than that of the record holder of the share or shares of Class B
Common Stock converted, in which case such record holder shall pay to the
Corporation or the transfer agent the amount of any tax which may be payable in
respect of any transfer involved in such conversion.
Exhibit 99.9
7
(b) The Corporation covenants that it will at all times reserve and keep
available, solely for the purpose of issuance upon conversion of the outstanding
shares of Class B Common Stock, such number of shares of Class A Common Stock as
shall be issuable upon the conversion of all such outstanding shares of Class B
Common Stock, provided that nothing contained herein shall be construed to
preclude the Corporation from satisfying its obligations in respect of the
conversion of the outstanding shares of Class B Common Stock by delivery of
shares of Class A Common Stock which are held in the treasury of the
Corporation.
(c) The Corporation shall not be required to convert Class B Common Stock,
and no surrender of Class B Common Stock shall be effective for that purpose,
while the stock transfer books of the Corporation are closed for any purpose,
but the valid presentation of Class B Common Stock for conversion during any
period such books are so closed shall become effective for conversion
immediately upon the reopening of such books, as if the conversion had been made
on the date such Class B Common Stock was surrendered.
(d) Shares of the Class B Common Stock converted as herein provided shall
resume the status of authorized but unissued shares of Class B Common Stock.
5. Dividends
The holders of Class A Common Stock and Class B Common Stock shall be
entitled to receive such dividends and distributions, payable in cash or
otherwise, as may be declared thereon (subject in each case to section 2(f) of
this Article Fourth ) by the Board of Directors from time to time out of assets
or funds of the Corporation legally available therefor, provided that (a) all
such dividends or distributions shall be paid or made in equal amounts, share
for share, to the holders of Class A Common Stock and Class B Common Stock as if
a single class; and (b) in the event that any dividend is declared in shares of
Class A Common Stock or Class B Common Stock, such dividend shall be declared at
the same rate per share on Class A Common Stock and Class B Common Stock, but
the dividend payable on shares of Class A Common Stock shall be payable in
shares of Class A Common Stock, and the dividend payable on shares of Class B
Common Stock shall be payable in shares of Class B Common Stock.
6. Stock Splits and Other Transactions
Shares of Class A Common Stock or Class B Common Stock may not be split up,
subdivided, combined or reclassified, unless at the same time the shares of such
other class are proportionately so split up, subdivided, combined or
reclassified in a manner which maintains the same proportionate equity ownership
between the holders of Class A Common Stock and Class B Common Stock as
comprised on the record date for any such transaction.
7. Liquidation Rights
(a) In the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Corporation, the
assets of the Corporation shall be divided among and paid ratably to the holders
of Class A Common Stock and Class B Common Stock, as if such classes constituted
a single class.
Exhibit 99.9
8
(b) For any and all purposes of this Certificate of Incorporation, neither
the merger or consolidation of the Corporation into or with any other
corporation nor the merger or consolidation of any other corporation into or
with the Corporation, nor a sale, transfer or lease of all or substantially all
of the assets of the Corporation, nor any other transaction or series of
transactions having the effect of a reorganization shall be deemed to be a
liquidation, dissolution or winding-up of the Corporation.
FIFTH: 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, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article Fifth to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall be prospective only and shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
SIXTH:
(a) Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while serving as a director or officer shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director or officer
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in paragraph (b)
hereof with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that an advancement of
expenses incurred by an indemnitee in his
Exhibit 99.9
9
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of (i) an undertaking, by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such indemnitee is
not entitled to be indemnified for such expenses under this section or otherwise
(hereinafter an "undertaking) and (ii) assurances that the indemnitee can
fulfill such undertaking, in form and substance satisfactory to the Board of
Directors by a majority vote of a quorum consisting of directors who are not
party to the proceeding; provided, however, that in the event all of the
directors are party to the proceeding, no such assurances shall be required.
(b) If a claim under section (a) of this Article Sixth is not paid in full
by the Corporation within sixty days after a written claim has been received by
the Corporation, except in the case of a claim for an advancement of expenses,
in which case the applicable period shall be twenty days, the indemnitee may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the indemnitee shall be entitled to be paid also
the expense of prosecuting or defending such suit. In any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that the indemnitee has not met the applicable standard of
conduct set forth in the Delaware General Corporation Law. In any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that the indemnitee has not met the applicable standard of
conduct set forth in the Delaware General Corporation Law. Neither the failure
of the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of
such suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right hereunder, or by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified or to such advancement of expenses
under this section or otherwise shall be on the Corporation.
(c) The rights to indemnification and to the advancement of expenses
conferred in this Section shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, this Certificate of
Incorporation, By-law, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such
Exhibit 99.9
10
expense, liability or loss under the Delaware General Corporation Law.
(e) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and/or to the advancement of
expenses, to any person who was or is an employee or agent of the Corporation or
was or is serving at the request of the Corporation as an employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, to the
fullest extent of the provisions of this Article Sixth and applicable law with
respect to the indemnification and advancement of expenses.
Exhibit 99.9
11