EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
FOUR MEDIA COMPANY
1. NAME.
The name of this corporation is FOUR MEDIA COMPANY (the "Corporation").
2. REGISTERED OFFICE AND AGENT.
The registered office of the Corporation shall be located at 1013 Centre
Road, Wilmington, Delaware 19805 in the County of New Castle. The registered
agent of the Corporation at such address shall be Corporation Service Company.
3. PURPOSE AND POWERS.
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law. The Corporation shall have all power necessary or helpful to engage in
such acts and activities.
4. CAPITAL STOCK.
4.1. AUTHORIZED SHARES.
The total number of shares of all classes of stock that the Corporation
shall have the authority to issue is 55,000,000 shares, of which 5,000,000
shares shall be Preferred Stock, having a par value of $0.01 per share
("Preferred Stock"), and 50,000,000 shares shall be classified as Common Stock,
par value $0.01 per share ("Common Stock"). The Board of Directors is expressly
authorized to provide for the classification and reclassification of any
unissued shares of Preferred Stock or Common Stock and the issuance thereof in
one or more classes or series without the approval of the stockholders of the
Corporation.
4.2. COMMON STOCK.
(a) RELATIVE RIGHTS.
The Common Stock shall be subject to all of the rights, privileges,
preferences and priorities of the Preferred Stock as set forth in the
certificate of designations filed to establish the respective series of
Preferred Stock. Each share of Common Stock shall have the same relative rights
as and be identical in all respects to all the other shares of Common Stock.
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(b) VOTING RIGHTS.
Each holder of shares of Common Stock shall be entitled to attend all
special and annual meetings of the stockholders of the Corporation and, share
for share and without regard to class, together with the holders of all other
classes of stock entitled to attend such meetings and to vote (except any class
or series of stock having special voting rights), to cast one vote for each
outstanding share of Common Stock so held upon any matter or thing (including,
without limitation, the election of one or more directors) properly considered
and acted upon by the stockholders, except as otherwise provided in this
Certificate of Incorporation or by applicable law.
(c) DIVIDENDS.
Whenever there shall have been paid, or declared and set aside for payment,
to the holders of shares of any class of stock having preference over the Common
Stock as to the payment of dividends, the full amount of dividends and of
sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then the holders of
record of the Common Stock and any class or series of stock entitled to
participate therewith as to dividends, shall be entitled to receive dividends,
when, as, and if declared by the Board of Directors, out of any assets legally
available for the payment of dividends thereon.
(d) DISSOLUTION, LIQUIDATION, WINDING UP.
In the event of any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of record of the
Common Stock then outstanding, and all holders of any class or series of stock
entitled to participate therewith in whole or in part, as to distribution of
assets, shall become entitled to participate in the distribution of any assets
of the Corporation remaining after the Corporation shall have paid, or set aside
for payment, to the holders of any class of stock having preference over the
Common Stock in the event of dissolution, liquidation or winding up, the full
preferential amounts (if any) to which they are entitled, and shall have paid or
provided for payment of all debts and liabilities of the Corporation.
4.3. PREFERRED STOCK.
(a) ISSUANCE, DESIGNATIONS, POWERS, ETC.
The Board of Directors expressly is authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Certificate of Incorporation, to provide, by resolution and by filing a
certificate of designations pursuant to the Delaware General Corporation Law,
for the issuance from time to
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time of the shares of Preferred Stock in one or more series, to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and other rights of the shares of each such
series and to fix the qualifications, limitations and restrictions thereon,
including, but without limiting the generality of the foregoing, the following:
(i) the number of shares constituting that series and the distinctive
designation of that series;
(ii) the dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
(iii) whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(iv) whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
(v) whether or not the shares of that series shall be redeemable and, if
so, the terms and conditions of such redemption, including the dates upon or
after which they shall be redeemable, and the amount per share payable in case
of redemption, which amount may vary under different conditions and at different
redemption dates;
(vi) whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(vii) the rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
(viii) any other relative powers, preferences, and rights of that series,
and qualifications, limitations or restrictions on that series.
(b) DISSOLUTION, LIQUIDATION, WINDING UP.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of Preferred Stock of
each series shall be entitled to receive only such amount or amounts as shall
have been fixed by the
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certificate of designations or by the resolution or resolutions of the Board of
Directors providing for the issuance of such series.
4.4. ADJUSTMENTS OF AUTHORIZED STOCK.
Except as provided to the contrary in the provisions establishing a class
or series of stock, the amount of the authorized stock of the Corporation of any
class or classes may be increased or decreased (but not below the number then
outstanding) by the affirmative vote of a majority of the directors then in
office, whether or not a quorum.
4.5. RESTRICTIONS ON FOREIGN OWNERSHIP OF SHARES.
(a) No shares of stock of any class or series outstanding at any time shall
be owned of record or beneficially by a person (as defined in Section 4.5(c)
hereof) whose ownership thereof would constitute a violation of Section 310(a)
or 310(b) of the Communications Act of 1934, as amended, or any similar or
successor federal statutes.
(b) The Corporation may, in its sole discretion, redeem any outstanding
shares of stock of any class or series which are owned in violation of Section
4.5(a) hereof. Shares redeemed by the Corporation under this Section 4.5(b) may
be redeemed for cash, property or rights, at the lesser of (i) the fair market
value at the time of the redemption or (ii) the holder's purchase price,
provided the holder purchased such shares within a year prior to the redemption.
The Board of Directors shall have sole discretion to determine whether shares
are owned in violation of Section 4.5(a) hereof, the fair market value of any
shares to be redeemed, and the value of any non-cash consideration to be
provided for such shares in any such redemption.
(c) For purposes of this Section 4.5, "person" shall mean an individual, a
partnership, a corporation, a trust, a joint venture, an unincorporated
organization, a government or any department or agency thereof or any other
legal entity.
5. INCORPORATOR; INITIAL DIRECTORS
5.1. INCORPORATOR.
The name and mailing address of the incorporator (the "Incorporator") is
Greenberg Glusker Fields Claman & Machtinger LLP, 1900 Avenue of the Stars,
Suite 2100, Los Angeles, CA 90067-4590. The powers of the Incorporator shall
terminate upon the filing of this Certificate of Incorporation.
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5.2. INITIAL DIRECTORS.
The following persons, having the following mailing addresses, shall serve
as the directors of the Corporation until their successors are elected and
qualified:
NAME MAILING ADDRESS
CLASS I
(NAMES ADDRESSES)
CLASS II
(NAMES ADDRESSES)
CLASS III
(NAMES ADDRESSES)
6. BOARD OF DIRECTORS.
6.1. CLASSIFICATION.
Except as otherwise provided in this Certificate of Incorporation or a
certificate of designations relating to the rights of the holders of any class
or series of Preferred Stock, voting separately by class or series, to elect
additional directors under specified circumstances, the number of directors of
the Corporation shall be as fixed from time to time by or pursuant to the Bylaws
of the Corporation. The directors, other than those who may be elected by the
holders of any class or series of Preferred Stock voting separately by class or
series, shall be classified, with respect to the time for which they severally
hold office, into three classes, Class I, Class II and Class III, which shall be
as nearly equal in number as possible, and shall be adjusted from time to time
in the manner specified in the Bylaws of the Corporation to maintain such
proportionality. Each initial director in Class I shall hold office for a term
expiring at the 1999 annual meeting of stockholders, each initial director in
Class II shall hold office initially for a term expiring at the 1998 annual
meeting of stockholders, and each initial director in Class III shall hold
office for a term expiring at the 1997 annual meeting of stockholders.
Notwithstanding the foregoing provisions of this Section 6.1, each director
shall serve until such director's successor is duly elected and qualified or
until such director's earlier death, resignation or removal. At each annual
meeting of stockholders, the successors to the class of directors whose term
expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting of stockholders held in the third year following the year of
their election and until their successors have been duly elected and qualified
or until any such director's earlier death, resignation or removal.
6.2. CHANGE OF AUTHORIZED NUMBER.
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In the event of any increase or decrease in the authorized number of
directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
6.3. DIRECTORS ELECTED BY HOLDERS OF PREFERRED STOCK.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or a certificate of designations
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Section 6 unless expressly provided by the certificate
of designations.
6.4. LIMITATION OF LIABILITY.
No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of loyalty to
the Corporation or its stockholders; (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (c) for
the types of liability set forth in Section 174 of the Delaware General
Corporation Law; or (d) for any transaction from which the director received any
improper personal benefit. Any repeal or modification of this Section 6.4 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 with respect to acts or
omissions occurring prior to such repeal or modification.
7. INDEMNIFICATION.
To the extent permitted by law, the Corporation shall fully indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) by reason of the fact that such
person 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, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and
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reasonably incurred by such person in connection with such action, suit or
proceeding.
To the extent permitted by law, the Corporation may fully indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) by reason of the fact that such
person is or was an employee or agent of the Corporation, or is or was serving
at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
The Corporation may advance expenses (including attorneys' fees) incurred
by a director or officer in advance of the final disposition of such action,
suit or proceeding upon the receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that such director or officer is not entitled to indemnification. The
Corporation may advance expenses (including attorneys' fees) incurred by an
employee or agent in advance of the final disposition of such action, suit or
proceeding upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
8. ACTIONS BY STOCKHOLDERS.
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders, and may not be effected by any consent in writing by such
stockholders.
9. SPECIAL MEETINGS.
Special meetings of the stockholders may be called at any time but only by
(a) the chairman of the board of the Corporation or (b) a majority of the
directors in office, although less than a quorum.
10. COMPROMISE OR ARRANGEMENT CLAUSE.
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any
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receiver or receivers appointed for the Corporation under Section 291 of the
Delaware General Corporation Law or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
Section 279 of the Delaware General Corporation Law order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
11. AMENDMENT OF CERTIFICATE OF INCORPORATION.
Notwithstanding any other provisions of this Certificate of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
Bylaws of the Corporation), the affirmative vote of 66-2/3% of the total number
of votes of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to amend or repeal, or to adopt any provision
inconsistent With the purpose or intent of Sections 6, 8 and 9 hereof, and this
Section 11. Notice of any such proposed amendment, repeal or adoption shall be
contained in the notice of the meeting at which it is to be considered. Subject
to the provisions set forth herein, the Corporation reserves the right to amend,
alter, repeal or rescind any provision contained in this Certificate of
Incorporation in the manner now or hereafter prescribed by law.
12. AMENDMENT OF BYLAWS.
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly authorized
and empowered to adopt, amend and repeal the Bylaws of the Corporation, subject
to the right of the stockholders entitled to vote with respect thereto to amend
or repeal Bylaws adopted by the Board of Directors as provided for in this
Certificate of Incorporation or in the Bylaws of the Corporation.
IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove
named, for the purpose of forming a corporation pursuant to the Delaware General
Corporation Law, hereby certifies that the facts hereinabove stated are truly
set forth, and
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accordingly executes this Certificate of Incorporation this 25th day of
September, 1996.
GREENBERG GLUSKER FIELDS CLAMAN
& MACHTINGER LLP
Incorporator
By:/s/ Jill Cossman
__________________________
Jill A. Cossman
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