Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RELATIVE RIGHTS,
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS
OF THE
SERIES A PREFERRED STOCK
OF
COBBLESTONE HOLDINGS, INC.
COBBLESTONE HOLDINGS, INC. (the "Corporation"), a corporation organized and
existing under and by virtue of the provisions of the General Corporation Law of
the State of Delaware (the "GCL"), DOES HEREBY CERTIFY THAT:
FIRST: That, by written consent of the Board of Directors of the
-----
Corporation as of May 13, 1996, resolutions were duly adopted setting forth
proposed amendments to the Certificate of Designation, Preferences and Relative
Rights, Qualifications, Limitations and Restrictions of the Series A Preferred
Stock of the Corporation (the "Certificate of Designation of Series A Preferred
Stock"), declaring said amendments to be advisable and directing its officers to
submit said amendments to the stockholders of the Corporation for consideration
thereof. The resolutions setting forth the proposed amendments are as follows:
WHEREAS, a Certificate of Amendment to Certificate of Incorporation of
the Corporation is proposed to be filed with the Delaware Secretary of
State pursuant to which each share of existing Series A Preferred Stock is
to be converted into 12.11905 shares of a newly issued Series A Preferred
Stock;
WHEREAS, it is deemed to be advisable and in the best interest of the
Corporation to decrease the redemption price per share of Series A
Preferred Stock from $100.00 to $8.25, and to amend a certain provision of
the Certificate of Designation of Series A Preferred Stock;
NOW, THEREFORE, BE IT RESOLVED, that paragraph 3(a) of the Certificate
of Designation of Series A Preferred Stock be, and it hereby is, amended to
read as follows:
"(a) Optional Redemption. The Series A Preferred Stock may be
-------------------
redeemed, in whole or in part, at any time at the election of the
Corporation by resolution of its Board of Directors, on notice as set
forth in subparagraph 3(b), below, at the redemption price of $8.25
per share of Series A Preferred Stock (the "Redemption Price").
In the event that at any time less than all of the Series A
Preferred Stock outstanding is to be redeemed, the shares to be
redeemed will be selected by lot or pro rata, except that if the
redemption is pro rata, the Corporation may redeem all shares of
Series A Preferred Stock held by all holders of 100 or fewer shares as
may be specified by the Corporation."
RESOLVED FURTHER, that the officers of the Corporation be, and each of
them hereby is, authorized and directed to submit the foregoing amendments
to the stockholders of the Corporation for consideration thereof; and
RESOLVED FURTHER, that, following approval of the foregoing amendments
by the stockholders of the Corporation, the officers of the Corporation be,
and each of them hereby is, authorized and directed to prepare or cause to
be prepared, to execute and to file or cause to be filed with the Secretary
of State of the State of Delaware a Certificate of Amendment of the
Certificate of Designation of Series A Preferred Stock, and to execute such
other documents and take such other actions as such officer or officers
shall deem necessary, appropriate or advisable in order to carry out the
intent and purposes of the foregoing resolutions.
SECOND: That, thereafter, by written consent of the holders of a
------
majority of the outstanding shares of capital stock of the Corporation,
including the holder of all of the outstanding shares of Series A Preferred
Stock of the Corporation, in accordance with Section 228 of the GCL, the
necessary number of shares required by statute were voted in favor of the
foregoing amendments, and prompt written notice in accordance with Section 228
of the GCL has been given to those stockholders of the Corporation who have not
consented in writing.
THIRD: That said amendments were duly adopted in accordance with
-----
the provisions of Section 242 of the GCL.
2
IN WITNESS WHEREOF, COBBLESTONE HOLDINGS, INC. has caused this
certificate to be signed by James A. Husband, its President, this 13th day of
May, 1996.
COBBLESTONE HOLDINGS, INC.
By: /s/ James A. Husband
------------------------------------
James A. Husband
President
CERTIFICATE OF INCREASE
OF
SERIES A PREFERRED STOCK
OF
COBBLESTONE HOLDINGS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
COBBLESTONE HOLDINGS, INC. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 151(g) thereof, DOES
HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of Directors
by Article 4 of the Certificate of Incorporation of the Corporation, the Board
of Directors of the Corporation adopted on May 13, 1996 the following
resolutions increasing the number of shares designated as Series A Preferred
Stock, par value $.01 per share, of the Corporation:
WHEREAS, the Board of Directors of the Corporation deems it to be
desirable and in the best interests of the Corporation to amend the
Corporation's Certificate of Designation, Preferences and Relative Rights,
Qualifications, Limitations and Restrictions of the Series A Preferred
Stock of the Corporation (the "Series A Certificate of Designation"),
originally filed on January 25, 1994 and amended on March 30, 1995 and May
30, 1996, in order to increase the number of shares designated as Series A
Preferred Stock of the Corporation;
NOW, THEREFORE, BE IT RESOLVED, that the number of shares designated
as Series A Preferred Stock of the Corporation be increased from 6,000,000
to 10,000,000;
RESOLVED FURTHER, that, due to the foregoing increase, the 4,000,000
additional shares of the Corporation designated as Series A Preferred Stock
be, and they hereby are, set aside and reserved for issuance;
RESOLVED FURTHER, that the executive officers of the Corporation are
hereby authorized and directed to cause to be prepared and to execute,
verify and file a Certificate of Increase of Series A Preferred Stock of
the Corporation with the Secretary of State of the State of Delaware; and
RESOLVED FURTHER, the executive officers of the Corporation are hereby
authorized and directed to take whatever steps may be necessary or
desirable to carry out the above resolution.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
duly executed by Gary L. Dee, its Vice President, this 29th day of May, 1996.
COBBLESTONE HOLDINGS, INC.
By: /s/ Gary L. Dee
--------------------------------
Gary L. Dee
Vice President
2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COBBLESTONE HOLDINGS, INC.
COBBLESTONE HOLDINGS, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY THAT:
FIRST: By written consent of the Board of Directors of the
Corporation as of May 13, 1996, resolutions were duly adopted setting forth
proposed amendments to the Certificate of Incorporation of the Corporation,
declaring said amendments to be advisable and directing its officers to submit
said amendments to the stockholders of the Corporation for consideration
thereof. The resolutions setting forth the proposed amendments are as follows:
WHEREAS, in connection with the Corporation's proposed offering of
units consisting of series A senior zero-coupon notes due 2004 and shares
of common stock of the Corporation, the Board of Directors of the
Corporation deems it to be desirable and in the best interests of the
Corporation to amend the Corporation's Certificate of Incorporation to
increase the authorized capital stock of the Corporation and to provide for
a 12.11905 for one split of the outstanding shares of Capital Stock of the
Corporation;
WHEREAS, following such stock split, the Board of Directors deems it
to be advisable and in the best interests of the Corporation to convert
each outstanding share of Series B Preferred Stock of the Corporation into
one outstanding share of Series A Preferred Stock of the Corporation and to
eliminate the designated series of Series B Preferred Stock of the
Corporation;
NOW, THEREFORE, BE IT RESOLVED, that Article 4 of the Certificate of
Incorporation of the Corporation be, and it hereby is, amended to read as
follows:
"4. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Fifteen Million (15,000,000),
consisting of Five Million (5,000,000) shares of Common Stock, par value
$.01 per share, and Ten Million (10,000,000) shares of Preferred Stock, par
value $.01 per share.
The Preferred Stock may be divided into such number of series as the
Board of Directors may determine. The Board of Directors is authorized to
determine and alter the rights, preferences, privileges and restrictions
(including without limitation voting rights) granted to and imposed upon
the Preferred Stock or any series thereof with respect to any wholly
unissued class or series of Preferred Stock, and to fix the number of
shares of any series of Preferred Stock and the designation of any such
series of Preferred Stock. The Board of Directors, within the limits and
restrictions stated in any resolution or resolutions of the Board of
Directors originally fixing the number of shares constituting any series,
may increase or decrease (but not below the number of any series then
outstanding) the number of shares of any series subsequent to the issue of
shares of that series."
RESOLVED FURTHER, that, upon this Certificate of Amendment becoming
effective in accordance with the Delaware General Corporation Law (the
"Effective Time"), each share of Common Stock, par value $.01 per share, of
the Corporation ("Old Common Stock") issued and outstanding immediately
prior to the Effective Time shall be reclassified as and changed into
12.11905 validly issued, fully paid and nonassessable shares of the Common
Stock, par value $.01 per share of the Corporation ("New Common Stock").
Each stock certificate that theretofore represented shares of Old Common
Stock shall thereafter represent that number of shares of New Common Stock
into which the shares of Old Common Stock represented by such certificate
shall have been reclassified, provided, however, that each person holding
of record a stock certificate or certificates that represented shares of
Old Common Stock shall receive, upon surrender of such certificate or
certificates, a new certificate or certificates evidencing and representing
the number of shares of New Common Stock to which such person is entitled."
RESOLVED FURTHER, that the Certificate of Designation, Preferences and
Relative Rights, Qualifications, Limitations and Restrictions of the Series
A Preferred Stock of the Corporation, originally filed on January 25, 2994
and amended on March 30, 1995, be, and hereby it is, amended by increasing
the number of shares designated as Series A Preferred Stock of the
Corporation from 430,000 to 6,000,000;
RESOLVED FURTHER, that, upon the Effective Time, each share of Series
A Preferred Stock, par value $.01 per share, of the Corporation ("Old
Series A Preferred") issued and outstanding immediately prior to the
Effective Time shall be reclassified as and changed into 12.11905 validly
issued, fully paid and nonassessable shares of the Series A Preferred
Stock, par value $.01 per share of the Corporation ("New Series A
Preferred"). Each stock certificate that theretofore represented shares of
Old Series A Preferred shall thereafter represent that number of shares of
New Series A Preferred into which the shares of Old Series A Preferred
represented by such certificate shall have been reclassified, provided,
however, that each person holding of record a stock certificate or
certificates that represented shares of Old Series A Preferred shall
receive, upon surrender of such certificate or certificates, a new
certificate or certificates evidencing and representing the number of
shares of New Series A Preferred to which such person is entitled;
RESOLVED FURTHER, that the Certificate of Designation, Preferences and
Relative Rights, Qualifications, Limitations and Restrictions of the Series
B Preferred
2
Stock of the Corporation, originally filed on January 25, 2994 and amended
on March 30, 1995, be, and hereby it is, amended by increasing the number
of shares designated as Series B Preferred Stock of the Corporation from
20,000 to 242,381;
RESOLVED FURTHER, that, upon the Effective Time, each share of Series
B Preferred Stock, par value $.01 per share, of the Corporation ("Old
Series B Preferred") issued and outstanding immediately prior to the
Effective Time shall be reclassified as and changed into 12.11905 validly
issued, fully paid and nonassessable shares of the Series B Preferred
Stock, par value $.01 per share of the Corporation ("New Series B
Preferred"). Each stock certificate that theretofore represented shares of
Old Series B Preferred shall thereafter represent that number of shares of
New Series B Preferred into which the shares of Old Series B Preferred
represented by such certificate shall have been reclassified, provided,
however, that each person holding of record a stock certificate or
certificates that represented shares of Old Series B Preferred shall
receive, upon surrender of such certificate or certificates, a new
certificate or certificates evidencing and representing the number of
shares of New Series B Preferred to which such person is entitled;
RESOLVED FURTHER, that, immediately following the foregoing
reclassification of each share of Old Series B Preferred into 12.11905
shares of New Series B Preferred, each share of New Series B Preferred be,
and it hereby is, converted into one issued and outstanding share of New
Series A Preferred (the "Conversion");
RESOLVED FURTHER, that, following the Conversion, no additional shares
of New Series B Preferred shall be issued and the New Series B Preferred
shall be eliminated as a designated series of Preferred Stock of the
Corporation;
RESOLVED FURTHER, that the Board of Directors recommends to the
stockholders of the Corporation that such stockholders approve the
foregoing amendments of the Certificate of Incorporation of the
Corporation;
RESOLVED FURTHER, that, subject to the receipt of appropriate
stockholder approval, the executive officers of the Corporation are hereby
authorized and directed to cause to be prepared and to execute, verify and
file a Certificate of Amendment of Certificate of Incorporation of the
Corporation with the Secretary of State of the State of Delaware, and to
execute such other documents and take such other actions as such officer or
officers shall deem to be necessary, appropriate or advisable in order to
carry out the intent and purposes of the foregoing resolutions.
SECOND: Thereafter, by written consent of the holders of a majority
of the issued and outstanding shares of Common Stock, Series A Preferred Stock
and Series B Preferred Stock of the Corporation in accordance with Section 228
of the General Corporation Law of the State of Delaware, the necessary number of
shares required by statute were voted in favor of the amendments, and prompt
3
written notice in accordance with Section 228 of the General Corporation Law of
the State of Delaware has been given to those stockholders of the Corporation
who have not consented in writing.
THIRD: Said amendments were duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: As a result of said amendments and the conversion of the
Series B Preferred Stock into Series A Preferred Stock, no shares of Series B
Preferred Stock remain outstanding and no new shares of Series B Preferred Stock
will be issued.
4
IN WITNESS WHEREOF, COBBLESTONE HOLDINGS, INC. has caused this
certificate to be signed by Gary L. Dee, its Vice President, this 29th day of
May, 1996.
COBBLESTONE HOLDINGS, INC.
By: \s\ Gary L Dee
-----------------------------
Gary L. Dee
Vice President
5
CERTIFICATE OF INCREASE
OF
SERIES A PREFERRED STOCK
OF
COBBLESTONE HOLDINGS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
COBBLESTONE HOLDINGS, INC. (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 151(g) thereof, DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
Article 4 of the Certificate of Incorporation of the Corporation, the Board of
Directors of the Corporation adopted on March 27, 1995 the following resolutions
increasing the number of shares designated as Series A Preferred Stock, par
value $.01 per share, of the Corporation:
"RESOLVED, that the number of shares designated as Series A Preferred
Stock of the Corporation be increased from 400,000 to 430,000; and
RESOLVED FURTHER, that the appropriate officers of the Corporation
be, and each of them hereby is, authorized and directed to set aside and
reserve up to an additional 30,000 shares of Series A Preferred Stock of
the Corporation for issuance, to prepare or cause to be prepared, to
execute and to file or cause to be filed with the Secretary of State of the
State of Delaware a Certificate of Increase increasing the number of shares
constituting Series A Preferred Stock, par value $.01 per share, from
400,000 to 430,000."
IN WITNESS WHEREOF, the Corporation has caused this certificate to be duly
executed this 28th day of March, 1995.
COBBLESTONE HOLDINGS, INC.
By: /s/ STEVEN L. HOLMES
--------------------------
Steven L. Holmes,
Chief Financial Officer
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RELATIVE RIGHTS,
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS
OF THE
SERIES B PREFERRED STOCK
OF
COBBLESTONE HOLDINGS, INC.
COBBLESTONE HOLDINGS, INC. (the "Corporation"), a corporation organized and
existing under and by virtue of the provisions of the General Corporation Law of
the State of Delaware (the "GCL"), DOES HEREBY CERTIFY:
FIRST: That, by written consent of the Board of Directors of the
Corporation as of March 27, 1995, resolutions were duly adopted setting forth
proposed amendments to the Certificate of Designation, Preferences and Relative
Rights, Qualifications, Limitations and Restrictions of the Series B Preferred
Stock of the Corporation, declaring said amendments to be advisable and
directing its officers to submit said amendments to the stockholders of the
Corporation for consideration thereof. The resolutions setting forth the
proposed amendments are as follows:
"WHEREAS, the Corporation currently has authorized 450,000 shares of
Preferred Stock; and
WHEREAS, 50,000 of such shares are currently designated as Series B
Preferred Stock; and
WHEREAS, a Certificate of Designation, Preferences and Relative
Rights, Qualifications, Limitations and Restrictions of the Series B
Preferred Stock of the Corporation (the "Certificate of Designation of
Series B Preferred Stock") was filed with the Delaware Secretary of State
on January 25, 1994; and
WHEREAS, 20,000 shares of Series B Preferred Stock are currently
issued and outstanding; and
WHEREAS, it is deemed to be advisable and in the best interest of the
Corporation to decrease the number of designated shares of Series B
Preferred Stock from 50,000 to 20,000, and to amend a certain provision of
the Certificate of Designation of Series B Preferred Stock;
NOW, THEREFORE, BE IT RESOLVED, that paragraph 1 of the Certificate of
Designation of Series B Preferred Stock be, and it hereby is, amended to
read as follows:
"1. Designation. A series of the Preferred Stock of the
-----------
Corporation is hereby designated as "Series B Preferred Stock" (hereinafter
called the "Series B Preferred Stock") consisting of 20,000 shares. Shares
of the Series B Preferred Stock shall rank prior to the Corporation's
Common Stock, par value $.01 per share, upon liquidation, dissolution,
winding-up or otherwise. Unless specifically designated as junior to
("Junior Stock") the Series B Preferred Stock with respect to the payment
of dividends or upon liquidation, dissolution, winding-up or otherwise, all
other series of Preferred Stock and other classes of preferred stock of the
Corporation shall rank on parity ("Parity Stock") with the Series B
Preferred Stock with respect thereto."
RESOLVED FURTHER, that subparagraph (a) of paragraph 3 of the
Certificate of Designation of Series B Preferred Stock be, and it hereby
is, amended to read as set forth on Exhibit A hereto.
RESOLVED FURTHER, that the officers of the Corporation be, and
each of them hereby is, authorized and directed to submit the foregoing
amendments to the stockholders of the Corporation for consideration
thereof; and
RESOLVED FURTHER, that, following approval of the foregoing
amendments by the stockholders of the Corporation, the officers of the
Corporation be, and each of them hereby is, authorized and directed to
prepare or cause to be prepared, to execute and to file or cause to be
filed with the Secretary of State of the State of Delaware a Certificate of
Amendment of the Certificate
2
of Designation of Series B Preferred Stock, and to execute such other
documents and take such other actions as such officer or officers
shall deem necessary, appropriate or advisable in order to carry out
the intent and purposes of the foregoing resolutions."
SECOND: That, thereafter, by written consent of the holders of a
majority of the outstanding shares of capital stock of the Corporation,
including the holder of all of the outstanding shares of Series B Preferred
Stock of the Corporation, in accordance with Section 228 of the GCL, the
necessary number of shares required by statute were voted in favor of the
foregoing amendments, and prompt written notice in accordance with Section 228
of the GCL has been given to those stockholders of the Corporation who have not
consented in writing.
THIRD: That said amendments were duly adopted in accordance with the
provisions of Section 242 of the GCL.
IN WITNESS WHEREOF, COBBLESTONE HOLDINGS, INC. has caused this certificate
to be signed by Steven L. Holmes, its Chief Financial Officer, this 28th day of
March, 1995.
COBBLESTONE HOLDINGS, INC.
By: /s/ Steven L. Holmes
-----------------------
Steven L. Holmes,
Chief Financial Officer
3
EXHIBIT "A"
3. Redemption.
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(a) Optional Redemption. The Series B Preferred Stock may be redeemed, in
-------------------
whole or in part, at any time at the election of the Corporation by resolution
of its Board of Directors, on notice as set forth in subparagraph 3(c) below, at
the redemption price of $100.00 per share of Series B Preferred Stock (the
"Redemption Price"); provided, however, that, if at any time on or prior to the
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date of such redemption (the "Redemption Date"), any Reduced Basis Golf Course
(as defined below) or Subsidiary (as defined below) is sold or otherwise
disposed of (in any such case, a "Disposition") such that the Corporation or the
Subsidiary (or the consolidated group of which they are members), as applicable,
has recognized gain for federal income tax purposes, the Redemption Price per
share of $100 shall be increased immediately prior to redemption by an amount
determined in accordance with the following formula:
I = A x W
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1 - W
-----
S
where:
I = The dollar amount by which the Redemption Price per share shall be
increased;
A = The aggregate amount of federal and state income taxes on the
Dispositions, if any, of Reduced Basis Golf Courses or Subsidiaries by
the Corporation or Subsidiary, as applicable, through the Redemption
Date attributable to the reduced basis of such Courses or Subsidiaries,
which amount is the sum of the amounts determined in accordance with
---
the following formula for each of the Dispositions:
T - (C - B)
where:
T = The amount of federal and state income taxes on the Disposition of the
Reduced Basis Golf Course or Subsidiary attributable to the reduced
basis of such Course or Subsidiary;
C = The amount of federal and state income taxes recognized by the
Corporation or the Subsidiary (or the consolidated group of which they
are members), as applicable, on (i) the Disposition of the Reduced
Basis Golf Course or Subsidiary by the Corporation or (ii) Disposition
of the Reduced Basis Golf Course by the Subsidiary;
B = (1) In the event of a disposition of the Reduced Basis Golf Course by
the Subsidiary or in the event of a Disposition of the Reduced Basis
Golf Course by the Corporation (if the Corporation initially acquired
the stock of the Subsidiary and the Subsidiary subsequently transferred
the Reduced Basis Golf Course to the Corporation), the amount of
federal and state income taxes that would have been recognized on the
Disposition of the Reduced Basis Golf Course by the Corporation or the
Subsidiary (or consolidated group of which they are members), as
applicable, if the Subsidiary had acquired the Reduced Basis Golf
Course in a fully taxable transaction (i.e., resulting in the
----
Subsidiary having an initial tax basis in the Reduced Basis Golf Course
equal to its then fair market value) on the Acquisition Date (as
defined below); or
(2) In the event of a Disposition of the Subsidiary or Reduced Basis
Golf Course (other than as described in (1) above) by the Corporation,
the amount of federal and state income taxes that would have been
recognized on the Disposition of the Subsidiary or Reduced Basis Golf
Course by the Corporation (or consolidated group of which the
Corporation is a member) if the Corporation had acquired the Reduced
Basis Golf Course or the Subsidiary, as applicable, in a fully taxable
transaction (i.e., resulting in the Corporation having an initial tax
----
basis in the Reduced Basis Golf Course or Subsidiary, as applicable,
equal to its then fair market value) on the Acquisition Date;
W = The aggregate total percentage common equity ownership in the Corporation on
the Redemption Date of all holders of the Series B Preferred Stock; and
S = The number of outstanding shares of the Series B Preferred Stock on the
Redemption Date.
(a) For purposes hereof, a "Reduced Basis Golf Course" shall mean the
golf facilities (whether or not owned by Subsidiaries (as defined below))
acquired by the Corporation pursuant to the Escondido Stock Contribution and
Acquisition Agreement, dated as of September 30, 1992, and the Balboa Asset
Contribution and Acquisition Agreement, dated as of September 30, 1992.
"Subsidiary" shall mean any corporation more than 50% of whose voting stock is
owned directly or indirectly (through one or more entities) by the Corporation
and which owns a Reduced Basis Golf Course. "Acquisition Date" shall mean the
date of the Corporation's or Subsidiary's acquisition of a Reduced Basis Golf
Course, provided, however, if the Corporation acquires the stock of a Subsidiary
which owns the Reduced Basis Golf Course at the time of such acquisition, such
terms shall refer to the date of the Corporation's acquisition of the
Subsidiary.
If a Reduced Basis Golf Course or a Subsidiary is disposed of in a
transaction which results in a tax loss (or which would have resulted in a tax
loss under the assumptions set forth in "B" above), the above provisions shall
be applied to ensure that "A" above reflects the difference in such taxes caused
by the reduced basis in such Reduced Basis Golf Course or Subsidiary (i.e., so
---
"A" above is increased for the loss of any tax losses due to the reduced basis
in the Course or Subsidiary acquired).
In the event that any time less than all of the Series B Preferred
Stock outstanding is to be redeemed, the shares to be redeemed will be selected
by lot or pro rata, except that if the redemption is pro rata, the Corporation
may redeem all shares of Series B Preferred Stock held by all holders of 100 or
fewer shares as may be specified by the Corporation.
CERTIFICATE OF DESIGNATION, PREFERENCES,
AND RELATIVE RIGHTS,
QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS
OF THE
SERIES A PREFERRED STOCK
OF
COBBLESTONE HOLDINGS, INC.
---------------
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
---------------
COBBLESTONE HOLDINGS, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the provisions of the General
Corporation Law of the State of Delaware (the "DGCL"), certifies as follows:
FIRST: The Certificate of Incorporation of the Corporation authorizes
the issuance of 450,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock"), and, further, authorizes the Board of Directors of the
Corporation, by resolution or resolutions, at any time and from time to time, to
divide and establish any or all of the unissued shares of Preferred Stock not
then allocated to any series of Preferred Stock into one or more series and,
without limiting the generality of the foregoing, to fix and determine the
designation of each such share, the number of shares which shall constitute such
series and certain powers, preferences and relative participating, optional or
other special rights and qualifications, limitations and restrictions and voting
rights of the shares of each series so established.
SECOND: By unanimous written consent of the Board of Directors of the
Corporation, dated January 2l, 1994, the following resolutions were adopted
authorizing the creation and issuance of a series of said Preferred Stock to be
known as Series A Preferred Stock.
RESOLVED: The Board of Directors of the Corporation hereby authorizes
and fixes the number, designations, preferences, rights, voting rights and
limitations of the series of Preferred Stock on the terms and with the
provisions herein set forth:
1. Designation. A series of the Preferred Stock of the Corporation
-----------
is
hereby designated as "Series A Preferred Stock" (hereinafter called the "Series
A Preferred Stock") consisting initially of 400,000 shares. Shares of the
Series A Preferred Stock shall rank prior to the Corporation's Common Stock, par
value $.01 per share, upon liquidation, dissolution, winding-up or otherwise.
Unless specifically designated as junior to ("Junior Stock") the Series A
Preferred Stock with respect to the payment of dividends or upon liquidation,
dissolution, winding-up or otherwise, all other series of Preferred Stock and
other classes of preferred stock of the Corporation shall rank on parity
("Parity Stock") with the Series A Preferred Stock with respect thereto.
2. Dividends. Except as otherwise set forth in this paragraph 2 the
---------
holders of the shares of Series A Preferred Stock shall not be entitled to
receive dividends or other distributions other than such dividends or other
distributions as are declared by the Board of Directors of the Company. Each
such dividend shall be paid to the holders of record of the Series A Preferred
Stock as they shall appear on the stock register of the Corporation on such
record date, not exceeding 45 days nor less than 10 days preceding a dividend
payment date, as shall be fixed by the Board of Directors of the Corporation or
a duly authorized committee thereof.
3. Redemption.
----------
(a) Optional Redemption. The Series A Preferred Stock may be
-------------------
redeemed, in whole or in part, at any time at the election of the Corporation by
resolution of its Board of Directors, on notice as set forth in subparagraph
3(b), below, at the redemption price of $100.00 per share of Series A Preferred
Stock (the "Redemption Price").
In the event that at any time less than all of the Series A Preferred
Stock outstanding is to be redeemed, the shares to be redeemed will be selected
by lot or pro rata, except that if the redemption is pro rata, the Corporation
may redeem all shares of Series A Preferred Stock held by all holders of 100 or
fewer shares as may be specified by the Corporation.
(b) Mandatory Redemption. Upon the sale of the Corporation, whether
--------------------
such sale is effected by the consolidation or merger of the Corporation with or
into another corporation or corporations, the sale of all or substantially all
of the Corporation's assets, or the sale or exchange of stock representing at
least eight percent (80%) of the voting power of the stock of the Corporation,
in terms of number of votes for the election of directors, the Corporation, if
permitted by law and under the Corporation's agreements, shall redeem all
remaining outstanding shares of the Series A Preferred Stock at a redemption
price per share equal to the Redemption Price.
(c) Notice of Redemption. Notice of any redemption pursuant to this
--------------------
paragraph 3 shall be mailed, postage prepaid, at least 15 days but not more than
60 days prior to said redemption date to each holder of record of the Series A
Preferred Stock to be redeemed at its address as the same shall appear on the
stock register of the Corporation. Each such notice shall state: (i) the date
fixed for such redemption, (ii) the place or places
2
where certificates for such shares of Series A Preferred Stock are to be
surrendered for payment and (iii) the Redemption Price. If less than all the
shares of the Series A Preferred Stock owned by such holder are then to be
redeemed, such notice shall also specify the number of shares thereof which are
to be redeemed and the numbers of the certificates representing such shares.
If such notice of redemption shall have been so mailed and if prior to
the date of redemption specified in such notice all said funds necessary for
such redemption shall have been irrevocably deposited in trust, for the account
of the holders of the shares of the Series A Preferred Stock to be redeemed (and
so as to be and continue to be available therefor), with a bank or trust company
named in such notice doing business in Los Angeles, California and having
capital surplus and undivided profits of at least $50,000,000, thereupon, and
without awaiting the redemption date, all shares of the Series A Preferred Stock
with respect to which such notice shall have been so mailed and such deposit
shall have been so made, shall, notwithstanding that any certificate for shares
of Series A Preferred Stock shall not have been surrendered for cancellation, be
deemed to be no longer outstanding and all rights with respect to such shares of
the Series A Preferred Stock shall forthwith upon such deposit in trust cease
and terminate, except only the right of the holders thereof on or after the
redemption date to receive from such deposit the amount payable upon the
redemption, but without interest. In case the holders of shares of the Series A
Preferred Stock which shall have been called for redemption shall not within two
years (or any longer period if required by law) after the redemption date claim
any amount so deposited in trust for the redemption of such shares, such bank or
trust company shall, if permitted by applicable law, pay over to the Corporation
any such unclaimed amount so deposited with it, and shall thereupon be relieved
of all responsibility in respect thereof, and thereafter the holders of such
shares shall, subject to applicable escheat laws, look only to the Corporation
for payment of the redemption price thereof, but without interest.
(d) Status of Shares. Shares of Series A Preferred Stock redeemed,
----------------
purchased or otherwise acquired for value by the Corporation shall, after such
acquisition, have the status of authorized and unissued shares of Preferred
Stock and may be reissued by the Corporation at any time as shares of any series
of Preferred Stock, other than shares of Series A Preferred Stock.
4. Priority on Redemption. The Corporation shall not, directly or
----------------------
indirectly, redeem or purchase or otherwise acquire for value any Junior Stock
(except for Common Stock pursuant to the provisions of that certain Stock
Purchase and Stockholders Agreement dated as of September 30, 1992 among the
Corporation and the stockholders named therein) or Parity Stock unless, at the
time of making such redemption, purchase or other acquisition the Corporation
shall have redeemed, or shall contemporaneously redeem, all of the then
outstanding shares of Series A Preferred Stock at the applicable redemption
price (or shall have irrevocably committed to redeem all of the then outstanding
shares of Series A Preferred Stock and have set aside a sum sufficient for the
payment thereof at the applicable Redemption Price on the date of such
subsequent redemption). Notwithstanding the preceding sentence, the Corporation
may take any action otherwise prohibited by such
3
sentence with the affirmative vote or consent of the holders of a majority of
the outstanding shares of Series A Preferred Stock.
5. Liquidation Preference.
----------------------
(a) In the event of any liquidation, dissolution 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
holders of shares of the Series A Preferred Stock shall be entitled to receive
for each share of Series A Preferred Stock then held, out of the assets of the
Corporation, whether such assets are capital or surplus and whether or not any
dividends as such are declared, the applicable Redemption Price on the date
fixed for distribution, and no more, before any distribution shall be made to
the holders of the Common Stock or Junior Stock with respect to the distribution
of assets.
If, upon any such liquidation, dissolution or other winding up of the
affairs of the Corporation, the assets of the Corporation distributable among
the holders of all outstanding shares of the Series A Preferred Stock and of any
Parity Stock shall be insufficient to permit the payment in full to such holders
of the preferential amounts to which they are entitled, then the entire assets
of the Corporation remaining after the payment or provision of the debts and
other liabilities of the Corporation shall be distributed among the holders of
the Series A Preferred Stock and of any Parity Stock ratably in proportion to
the full amounts to which they would otherwise be respectively entitled.
(b) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, stating a payment
date and the place where the distributive amounts shall be payable, shall be
given by mail, postage prepaid, not less than 30 days prior to the payment date
stated therein, to the holders of record of the Series A Preferred Stock at
their respective addresses as the same shall appear on the books of the
Corporation.
(c) No payment on account of such liquidation, dissolution or winding
up of the affairs of the Corporation shall be made to the holders of any Parity
Stock, unless there shall likewise be paid at the same time to the holders of
the Series A Preferred Stock like proportionate distributive amounts, ratably,
in proportion to the full distributive amounts to which they and the holders of
such Parity Stock are respectively entitled with respect to such preferential
distribution.
6. Voting Rights. Except as otherwise required by law, the holders
-------------
of the Series A Preferred Stock shall be entitled to vote along with the Common
Stock and with any other class or series of stock that votes along with the
Common Stock (and not as a separate class) on all matters and shall be entitled
to one vote per share of Series A Preferred Stock.
4
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by David H. Wong, its President, and attested by Leslie R. Shaw, its
Assistant Secretary, this 2lst day of January, 1994.
Attest:
/s/ Leslie R. Shaw /s/ David H. Wong
_____________________________ ________________________________
Assistant Secretary President
5
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RELATIVE RIGHTS,
QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS
OF THE
SERIES B PREFERRED STOCK
COBBLESTONE HOLDINGS, INC.
________________
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
________________
COBBLESTONE HOLDINGS, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the provisions of the General
Corporation Law of the State of Delaware (the "DGCL"), certifies as follows:
FIRST: The Certificate of Incorporation of the Corporation authorizes
the issuance of 450,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock"), and, further, authorizes the Board of Directors of the
Corporation, by resolution or resolutions, at any time and from time to time, to
divide and establish any or all of the unissued shares of Preferred Stock not
then allocated to any series of Preferred Stock into one or more series and,
without limiting the generality of the foregoing, to fix and determine the
designation of each such share, the number of shares which shall constitute such
series and certain powers, preferences and relative participating, optional or
other special rights and qualifications, limitations and restrictions and voting
rights of the shares of each series so established.
SECOND: By unanimous written consent of the Board of Directors of the
Corporation, dated January 2l, l994, the following resolutions were adopted
authorizing the creation and issuance of a series of said Preferred Stock to be
known as Series B Preferred Stock.
RESOLVED: The Board of Directors of the Corporation hereby authorizes
and fixes the number, designations, preferences, rights, voting rights and
limitations of the series of Preferred Stock on the terms and with the
provisions herein set forth:
1. Designation. A series of the Preferred Stock of the Corporation
-----------
is hereby designated as "Series B Preferred Stock" (hereinafter called the
"Series B Preferred Stock") consisting initially of 50,000 shares. Shares of
the Series B Preferred Stock shall rank prior to the Corporation's Common Stock,
par value $.01 per share, upon liquidation,
dissolution, winding-up or otherwise. Unless specifically designated as junior
to ("Junior Stock") the Series B Preferred Stock with respect to the payment of
dividends or upon liquidation, dissolution, winding-up or otherwise, all other
series of Preferred Stock and other classes of preferred stock of the
Corporation shall rank on parity ("Parity Stock") with the Series B Preferred
Stock with respect thereto.
2. Dividends. Except as otherwise set forth in this paragraph 2 the
---------
holders of the shares of Series B Preferred Stock shall not be entitled to
receive dividends or other distributions other than such dividends or other
distributions as are declared by the Board of Directors of the Company. Each
such dividend shall be paid to the holders of record of the Series B Preferred
Stock as they shall appear on the stock register of the Corporation on such
record date, not exceeding 45 days nor less than 10 days preceding a dividend
payment date, as shall be fixed by the Board of Directors of the Corporation or
a duly authorized committee thereof.
3. Redemption.
----------
(a) Optional Redemption. The Series B Preferred Stock may be
-------------------
redeemed, in whole or in part, at any time at the election of the Corporation by
resolution of its Board of Directors, on notice as set forth in subparagraph
3(c) below, at the redemption price of $100.00 per share of Series B Preferred
Stock (the "Redemption Price"); provided, however, that, if at any time on or
-------- -------
prior to the date of such redemption (the "Redemption Date"), any Reduced Basis
Golf Course (as defined below) or Subsidiary (as defined below) is sold or
otherwise disposed of (in any such case, a "Disposition") such that the
Corporation or the Subsidiary (or the consolidated group of which they are
members), as applicable, has recognized gain for federal income tax purposes,
the Redemption Price per share of $100 shall be increased immediately prior to
redemption by an amount determined in accordance with the following formula:
I = A x W
-----
1 - W
-----
S
where:
I = The dollar amount by which the Redemption Price per share shall be
increased;
A = The aggregate amount of federal and state income taxes on the
Dispositions, if any, of Reduced Basis Golf Courses or Subsidiaries by
the Corporation or Subsidiary, as applicable, through the Redemption
Date attributable to the reduced basis of such Courses or
Subsidiaries, which amount is the sum of the amounts determined in
---
accordance with the following formula for each of the Dispositions:
T = ( C - B )
2
where:
T = The amount of federal and state income taxes on the
Disposition of the Reduced Basis Golf Course or Subsidiary
attributable to the reduced basis of such Course or
Subsidiary;
C = The amount of federal and state income taxes recognized by
the Corporation or the Subsidiary (or the consolidated group
of which they are members), as applicable, on (i) the
Disposition of the Reduced Basis Golf Course or Subsidiary
by the Corporation or (ii) Disposition of the Reduced Basis
Golf Course by the Subsidiary;
B = (1) In the event of a disposition of the Reduced Basis
Golf Course by the Subsidiary or in the event of a
Disposition of the Reduced Basis Golf Course by the
Corporation (if the Corporation initially acquired the stock
of the Subsidiary and the Subsidiary subsequently
transferred the Reduced Basis Golf Course to the
Corporation), the amount of federal and state income taxes
that would have been recognized on the Disposition of the
Reduced Basis Golf Course by the Corporation or the
Subsidiary (or consolidated group of which they are
members), as applicable, if the Subsidiary had acquired the
Reduced Basis Golf Course in a fully taxable transaction
(i.e., resulting in the Subsidiary having an initial tax
-----
basis in the Reduced Basis Golf course equal to its then
fair market value) on the Acquisition Date (as defined
below); or
(2) In the event of a Disposition of the Subsidiary or
Reduced Basis Golf Course (other than as described in (1)
above) by the Corporation, the amount of federal and state
income taxes that would have been recognized on the
Disposition of the Subsidiary or Reduced Basis Golf Course
by the Corporation (or consolidated group of which the
Corporation is a member) if the Corporation had acquired the
Reduced Basis Golf Course or the Subsidiary, as applicable,
in a fully taxable transaction (i.e., resulting in the
----
Corporation having an initial tax basis in the Reduced Basis
Golf Course or Subsidiary, as applicable, equal to its then
fair market value) on the Acquisition Date;
W = The aggregate total percentage common equity ownership in the
Corporation on the Redemption Date of all holders of the Series B
Preferred Stock; and
S = The number of outstanding shares of the Series B Preferred Stock on
the Redemption Date.
3
For purposes hereof, a "Reduced Basis Golf Course" shall mean any golf course or
other golf facility, public or private (including, without limitation, any
driving range or any "pitch and putt" or "par three" golf course) or any
leasehold interest with respect to the same, that was acquired by the
Corporation or the Subsidiary, as applicable, with a tax basis to the
Corporation or the Subsidiary, as applicable, on the Acquisition Date less than
the total value of the consideration paid (including cash and the fair market
value of any property or stock) by (i) the Corporation or the Subsidiary, as
applicable, for such golf course or other golf facility or (ii) the Corporation
for the Subsidiary. "Subsidiary" shall mean any corporation more than 50% of
whose voting stock is owned directly or indirectly (through one or more
entities) by the Corporation. "Acquisition Date" shall mean the date of the
Corporation's or Subsidiary's acquisition of a Reduced Basis Golf Course,
provided, however, if the Corporation acquires the stock of a Subsidiary which
owns the Reduced Basis Golf Course at the time of such acquisition, such term
shall refer to the date of the Corporation's acquisition of the Subsidiary.
If a Reduced Basis Golf Course or a Subsidiary is disposed of in a
transaction which results in a tax loss (or which would have resulted in a tax
loss under the assumptions set forth in "B" above), the above provisions shall
be applied to ensure that "A" above reflects the difference in such taxes caused
by the reduced basis in such Reduced Basis Golf Course or Subsidiary (i.e., so
----
"A" above is increased for the loss of any tax losses due to the reduced basis
in the Course or Subsidiary acquired).
In the event that at any time less than all of the Series B Preferred
Stock outstanding is to be redeemed, the shares to be redeemed will be selected
by lot or pro rata, except that if the redemption is pro rata, the Corporation
may redeem all shares of Series B Preferred Stock held by all holders of 100 or
fewer shares as may be specified by the Corporation.
(b) Mandatory Redemption. Upon the sale of the corporation, whether
--------------------
such sale is effected by the consolidation or merger of the Corporation with or
into another corporation or corporations, the sale of all or substantially all
of the Corporation's assets, or the sale or exchange of stock representing at
least eighty percent (80%) of the voting power of the stock of the Corporation,
in terms of number of votes for the election of directors, the Corporation, if
permitted by law and under the Corporation's agreements, shall redeem all
remaining outstanding shares of the Series B Preferred Stock at a redemption
price per share equal to the Redemption Price.
(c) Notice of Redemption. Notice of any redemption pursuant to this
--------------------
paragraph 3 shall be mailed, postage prepaid, at least 15 days but not more than
60 days prior to said redemption date to each holder of record of the Series B
Preferred Stock to be redeemed at its address as the same shall appear on the
stock register of the Corporation. Each such notice shall state: (i) the date
fixed for such redemption, (ii) the place or places where certificates for such
shares of Series B Preferred Stock are to be surrendered for payment and (iii)
the Redemption Price. If less than all the shares of the Series B Preferred
Stock owned by such holder are then to be redeemed, such notice shall also
specify the
4
number of shares thereof which are to be redeemed and the numbers of the
certificates representing such shares.
If such notice of redemption shall have been so mailed and if prior to
the date of redemption specified in such notice all said funds necessary for
such redemption shall have been irrevocably deposited in trust, for the account
of the holders of the shares of the Series B Preferred Stock to be redeemed (and
so as to be and continue to be available therefor), with a bank or trust company
named in such notice doing business in Los Angeles, California and having
capital surplus and undivided profits of at least $50,000,000, thereupon, and
without awaiting the redemption date, all shares of the Series B Preferred Stock
with respect to which such notice shall have been so mailed and such deposit
shall have been so made, shall, notwithstanding that any certificate for shares
of Series B Preferred Stock shall not have been surrendered for cancellation, be
deemed to be no longer outstanding and all rights with respect to such shares of
the Series B Preferred Stock shall forthwith upon such deposit in trust cease
and terminate, except only the right of the holders thereof on or after the
redemption date to receive from such deposit the amount payable upon the
redemption, but without interest. In case the holders of shares of the Series B
Preferred Stock which shall have been called for redemption shall not within two
years (or any longer period if required by law) after the redemption date claim
any amount so deposited in trust for the redemption of such shares, such bank or
trust company shall, if permitted by applicable law, pay over to the Corporation
any such unclaimed amount so deposited with it, and shall thereupon be relieved
of all responsibility in respect thereof, and thereafter the holders of such
shares shall, subject to applicable escheat laws, look only to the Corporation
for payment of the redemption price thereof, but without interest.
(d) Status of Shares. Shares of Series B Preferred Stock redeemed,
----------------
purchased or otherwise acquired for value by the Corporation shall, after such
acquisition, have the status of authorized and unissued shares of Preferred
Stock and may be reissued by the Corporation at any time as shares of any series
of Preferred Stock, other than shares of Series B Preferred Stock.
4. Priority on Redemption. The Corporation shall not, directly or
----------------------
indirectly, redeem or purchase or otherwise acquire for value any Junior Stock
(except for Common Stock pursuant to the provisions of that certain Stock
Purchase and Stockholders Agreement dated as of September 30, l992 among the
Corporation and the stockholders named therein) or Parity Stock unless, at the
time of making such redemption, purchase or other acquisition the Corporation
shall have redeemed, or shall contemporaneously redeem, all of the then
outstanding shares of Series B Preferred Stock at the applicable redemption
price (or shall have irrevocably committed to redeem all of the then outstanding
shares of Series B Preferred Stock and have set aside a sum sufficient for the
payment thereof at the applicable Redemption Price on the date of such
subsequent redemption). Notwithstanding the preceding sentence, the Corporation
may take any action otherwise prohibited by such sentence with the affirmative
vote or consent of the holders of a majority of the outstanding shares of Series
B Preferred Stock.
5
5. Liquidation Preference.
----------------------
(a) In the event of any liquidation, dissolution 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
holders of shares of the Series B Preferred Stock shall be entitled to receive
for each share of Series B Preferred Stock then held, out of the assets of the
Corporation, whether such assets are capital or surplus and whether or not any
dividends as such are declared, the applicable Redemption Price on the date
fixed for distribution, and no more, before any distribution shall be made to
the holders of the Common Stock or Junior Stock with respect to the distribution
of assets.
If, upon any such liquidation, dissolution or other winding up of the
affairs of the Corporation, the assets of the Corporation distributable among
the holders of all outstanding shares of the Series B Preferred Stock and of any
Parity Stock shall be insufficient to permit the payment in full to such holders
of the preferential amounts to which they are entitled, then the entire assets
of the Corporation remaining after the payment or provision for payment of the
debts and other liabilities of the Corporation shall be distributed among the
holders of the Series B Preferred Stock and of any Parity Stock ratably in
proportion to the full amounts to which they would otherwise be respectively
entitled.
(b) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, stating a payment
date and the place where the distributive amounts shall be payable, shall be
given by mail, postage prepaid, not less than 30 days prior to the payment date
stated therein, to the holders of record of the Series B Preferred Stock at
their respective addresses as the same shall appear on the books of the
Corporation.
(c) No payment on account of such liquidation, dissolution or winding
up of the affairs of the Corporation shall be made to the holders of any Parity
Stock, unless there shall likewise be paid at the same time to the holders of
the Series B Preferred Stock like proportionate distributive amounts, ratably,
in proportion to the full distributive amounts to which they and the holders of
such Parity Stock are respectively entitled with respect to such preferential
distribution.
6. Voting Rights. Except as otherwise required by law, the holders
-------------
of the Series B Preferred Stock shall be entitled to vote along with the Common
Stock and with any other class or series of stock that votes along with the
Common Stock (and not as a separate class) on all matters and shall be entitled
to one vote per share of Series B Preferred Stock.
6
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by David H. Wong, its President, and attested by Leslie R. Shaw, its
Assistant Secretary, this 2lst day of January, 1994.
Attest:
/s/ Leslie R. Shaw /s/ David H. Wong
_______________________ ____________________________
Assistant Secretary President
7
CERTIFICATE OF INCORPORATION
OF
COBBLESTONE HOLDINGS, INC.
1. The name of the corporation is:
Cobblestone Holdings, Inc.
2. The address of its registered office in the State of Delaware is 32
Loockerman Square, Suite L-100, in the City of Dover, County of Kent. The name
of its registered agent at such address is The Prentice-Hall Corporation System,
Inc.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of all classes of stock which the
corporation shall have authority to issue is Six Hundred Fifty Thousand
(650,000), consisting of Two Hundred Thousand (200,000) shares of Common Stock,
par value $.0l per share, and Four Hundred Fifty Thousand (450,000) shares of
Preferred Stock, par value $.0l per share.
The Preferred Stock may be divided into such number of series as the Board
of Directors may determine. The Board of Directors is authorized to determine
and alter the rights, preferences, privileges and restrictions (including
without limitation voting rights) granted to and imposed upon the Preferred
Stock or any series thereof with respect to any wholly unissued class or series
of Preferred Stock, and to fix the number of shares of any series of Preferred
Stock and the designation of any such series of Preferred Stock. The Board of
Directors, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series, may increase or decrease
(but not below the number of any series then outstanding) the number of shares
of any series subsequent to the issue of shares of that series.
5. The name and mailing address of the incorporator is:
Ilona F. Bush
LATHAM & WATKINS
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
6. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the bylaws of the corporation.
7. Election of directors need not be by written ballot unless the bylaws
of the corporation shall so provide.
8. No director of the corporation shall 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 the law, (iii) under Section 174 of the General Corporation Law of
Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and
2
deed and the facts herein stated are true, and accordingly have hereunto set my
hand this l4th day of January, l994.
/s/ Ilona F. Bush
--------------------------------------
Ilona F. Bush
3