EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
MOTIENT CORPORATION
MOTIENT CORPORATION, a corporation organized and existing under and by
virtue of the Delaware General Corporation Law (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is MOTIENT CORPORATION; it was
originally incorporated under the name "American Mobile
Satellite Consortium, Inc.," and its original Certificate of
Incorporation was filed on May 3, 1988 and renamed "American
Mobile Satellite Corporation" in its Certificate of
Incorporation.
2. This Restated Certificate of Incorporation, the entirety of
which is set forth below, has been duly adopted in accordance
with Section 245 of the Delaware General Corporation Law, only
restates and integrates and does not further amend the
provisions of the Corporation's certificate of incorporation
as heretofore amended or supplemented, and there is no
discrepancy between those provisions and the provisions of
this Restated Certificate of Incorporation.
FIRST: The name of the Corporation is MOTIENT CORPORATION.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, and the name of its registered agent at
that address is The Corporation Trust Company.
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, including specifically to act as the
registered agent of its wholly owned subsidiaries.
FOURTH:
A. Authorized Capital Stock. The total number of shares of all classes
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of stock which the Corporation shall be authorized to issue shall be one hundred
fifty million two hundred thousand (150,200,000) shares. One hundred fifty
million (150,000,000) of said shares shall be of a par value of $.01 per share
and shall be designated common stock ("Common Stock") and two hundred thousand
(200,000) of said shares shall be of a par value of $.01 per share and shall be
designated Series Preferred Stock.
B. Series Preferred Stock. The Series Preferred Stock may be issued
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from time to time by the board of directors as herein provided in one or more
series. The designations, relative rights, preferences and limitations with
respect to the Series Preferred Stock, and with respect to the shares of each
series thereof, may, to the extent permitted by law, be similar to or may differ
from those of any other series. The board of directors of the Corporation is
hereby expressly granted authority, subject to the provision of this Article
FOURTH, to issue from time to time Series Preferred Stock in one or more series,
and to fix from time to time before issuance thereof, by filing of a certificate
pursuant to the General Corporation Law of the State of Delaware, the number of
shares in each such series, and all designations, relative rights (including the
right, to the extent permitted by law, to convert into shares of any class or
into shares of any series of any class), preferences and limitations of the
shares in each such series, including, but without limiting the generality of
the foregoing, the following:
1. The number of shares to constitute such series (which number may at
any time, or from time to time, be increased or decreased by the board of
directors, notwithstanding that shares of the series may be outstanding at the
time of such increase or decrease, unless the board of directors shall have
otherwise provided in creating such series) and the distinctive designation
thereof;
2. The dividend rate on the shares of such series, whether or not
dividends on the shares of such series shall be cumulative and the date or
dates, if any, from which dividends thereon shall be cumulative;
3. Whether or not the shares of such series shall be redeemable, and,
if redeemable, the date or dates upon or after which they shall be redeemable
and the amount or amounts per share payable thereon in the case of the
redemption thereof, which amount may vary at different redemption dates or
otherwise as permitted by law;
4. The right, if any, of holders of shares of such series to convert
the same into, or exchange the same for, shares of Common Stock or other
securities as permitted by law, and the terms and conditions of such conversion
or exchange, as well as provisions for adjustment of the conversion rate in such
events as the board of directors shall determine;
5. The amount per share payable on the shares of such series upon the
voluntary and involuntary liquidation, dissolution or winding up of the
Corporation;
6. Whether the holders of shares of such series shall have voting
power, full or limited, in addition to the voting powers provided by law, and,
in case additional voting powers are accorded, to fix the extent thereof; and
7. Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions on such rights and privileges of
such series, provided, however, that no such rights, privileges, qualifications,
limitations or restrictions shall be in conflict with the Certificate of
Incorporation of the Corporation or with the resolution or resolutions adopted
by the board of directors providing for the issue of any series of which there
are shares then outstanding.
C. Voting.
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1. On all matters upon which holders of Common Stock are entitled or
permitted to vote, every holder of Common Stock shall be entitled to one (1)
vote in person or by proxy for each share of Common Stock standing in such
holder's name on the transfer books of the Corporation.
2. Except as otherwise specifically provided in the certificate filed
pursuant to law with respect to any series of Series Preferred Stock or as
otherwise provided by law, the Series Preferred Stock shall not have any right
to vote on any matters submitted to the stockholders of the Corporation,
including, without limitation, the election of directors. In all instances in
which voting rights are granted to Series Preferred Stock or any series thereof,
such Series Preferred Stock or series shall vote as provided in the certificate
filed pursuant to law with respect to any series of Series Preferred Stock or as
otherwise provided by law.
D. Dividends. The holders of Common Stock shall be entitled to receive
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dividends and distributions of the Corporation when and as declared by the board
of directors out of funds legally available therefor. Dividends on the
outstanding Series Preferred Stock of each series shall be declared and paid or
set apart for payment before any dividends shall be declared and paid or set
apart for payment on the Common Stock with respect to the same dividend period.
Dividends on any shares of Serie Preferred Stock shall be cumulative only if and
to the extent set forth in a certificate filed pursuant to law. After dividends
on all shares of Series Preferred Stock (including cumulative dividends if and
to the extent any such shares shall be entitled thereto) shall have been
declared and paid or set apart for payment with respect to any dividend period,
then and not otherwise as long as any shares of Series Preferred Stock shall
remain outstanding, dividends may be declared and paid or set apart for payment
with respect to the same dividend period on the Common Stock out of the assets
or funds of the Corporation legally available therefor.
E. Liquidation, Dissolution or Winding Up. In the event of any
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liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, each series of Series Preferred Stock shall have preference and
priority over the Common Stock for payment of the amount to which each
outstanding series of Series Preferred Stock shall be entitled in accordance
with the provisions thereof and each holder of Series Preferred Stock shall be
entitled to be paid in full such amount, or hav a sum sufficient for the payment
in full set aside, before any payments shall be made to the holders of the
Common Stock. If upon liquidation, dissolution or winding up of the Corporation,
the assets of the Corporation or the proceeds thereof, distributable among the
holders of the shares of all series of Series Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid, then such assets,
or the proceeds thereof, shall be distributed among such holders ratably in
accordance with the respective amounts which would be payable if all amounts
payable thereof were paid in full. After the holders of the Series Preferred
Stock of each series shall have been paid in full the amounts to which they
respectively shall be entitled, or a sum sufficient for the payment in full set
aside, the remaining net assets of the Corporation, after payment or provision
for payment of the debts of the Corporation, shall be distributed pro rata to
the holders of the Common Stock, to the exclusion of the holders of Preferred
Stock. A consolidation or merger of the Corporation with or into another
corporation or corporations, or a sale, whether for cash, shares of stock,
securities or properties, of all or substantially all of the assets of the
Corporation, shall not be deemed or construed to be a liquidation, dissolution
or winding up of the Corporation within the meaning of this Article FOURTH.
F. Redemption of Series Preferred Stock. In the event that Series
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Preferred Stock of any series shall be made redeemable as provided in subsection
B.3 of this Article FOURTH, the Corporation, at the option of the board of
directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the board of
directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as
provided in the certificates filed pursuant to law with respect to such series
of Series Preferred Stock.
FIFTH: At all elections of directors of the Corporation, each holder of
Common Stock shall be entitled to any many votes as shall equal the number of
votes which (except for such provision as to cumulative voting) such holder
would be entitled to cast for the election of directors multiplied by the number
of directors to be elected, and such holder may cast all of such votes for a
single director or may distribute such votes among the number of directors to be
voted for, or for any two or more o them as such holder may see fit.
The number of directors shall not be less than seven. All directors
shall be elected at each election of directors by the holders of Common Stock.
Elections of directors need not be by written ballot.
SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided as follows:
1. Except as otherwise expressly provided in this Certificate of
Incorporation or the bylaws, all actions of the board of directors shall be
taken upon or pursuant to the affirmative vote of a majority of the directors
present at a meeting at which a quorum is present.
2. The affirmative vote of the holders of two-thirds of the issued and
outstanding shares of Common Stock shall be required to approve any of the
following actions:
a. the merger or consolidation of the Corporation with or into any
other entity;
b. the dissolution or liquidation of the Corporation;
c. or the sale, exchange, or lease of all or substantially all of
the Corporation's property and assets.
SEVENTH: No fractional shares of Common Stock shall be issued by the
Corporation. In lieu of any fractional shares to which a holder would otherwise
be entitled, the Corporation shall pay cash equal to such fraction multiplied by
the fair market value per share of such Common Stock.
EIGHTH: If and to the extent permitted by the provisions governing
amendment of the bylaws contained therein, the board of directors is authorized
to make, repeal, alter, amend and rescind the bylaws of the Corporation.
NINTH: To the fullest extent permitted by the General Corporation Law
of Delaware or any other applicable laws presently or hereafter in effect, 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. Any repeal or modification of this Article NINTH shall not adversely
affect any right or protection of a director of the Corporation existing
immediately prior to such repeal or modification.
TENTH: Each person who is or was a director or officer of the
Corporation shall be indemnified by the Corporation to the fullest extent
permitted by the General Corporation Law of the State of Delaware or any other
applicable laws as presently or hereafter in effect. Without limiting the
generality or the effect of the foregoing, the Corporation may enter into one or
more agreements with any person which provide for indemnification greater or
different than that provided in this Article TENTH. Any repeal or modification
of this Article TENTH shall not adversely affect any right or protection
existing hereunder immediately prior to such repeal or modification.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate, in the manner now or
hereafter prescribed by statute and this Certificate, and all rights conferred
on stockholders herein are granted subject to this reservation. This Certificate
may not be amended, modified, rendered ineffective or repealed except by the
vote of the holders of two thirds of the issued and outstanding shares of Common
Stock. Other classes or series of stock shall not be entitled to vote on any
such amendment, modification or other change, unless and to the extent required
by applicable law.
TWELFTH: The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I, the undersigned, being duly elected/appointed
Vice President of the Corporation, do on behalf of the Corporation make this
Restated Certificate of Incorporation of the Corporation, effective April 24,
2000, hereby declaring and certifying under penalties of perjury that this is
the act and deed of the Corporation and the facts herein stated are true, and
accordingly have hereunto set my hand this 24th day of April , 2000.
MOTIENT CORPORATION
By: /s/Randy S. Segal
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Name: Randy S. Segal
Title: Senior Vice President, General
Counsel and Secretary
Attested to:
/s/David H. Engvall
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Name: David H. Engvall
Title: Vice President, Executive Counsel and
Assistant Secretary
Commonwealth of Virginia
County of Fairfax, ss:
I, Suzanne H. Podhorecki, a Notary Public, hereby certify that on the
24th day of April, 2000, David H. Engvall appeared before me and acknowledged
that he is the duly authorized and elected Vice President, Executive Counsel and
Assistant Secretary of Motient Corporation, that his signature was his own act
and deed and the foregoing instrument, the act and deed of Motient Corporation
and the facts stated therein are true.
/s/Suzanne H. Podhorecki
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Notary Public
My Commission Expires:
October 31, 2001
Commonwealth of Virginia
County of Fairfax, ss:
I, Suzanne H. Podhorecki, a Notary Public, hereby certify that on the
24th day of April, 2000, Randy S. Segal appeared before me and acknowledged that
she is the duly authorized and elected Senior Vice President, General Counsel
and Secretary of Motient Corporation, that her signature was her own act and
deed and the foregoing instrument, the act and deed of Motient Corporation and
the facts stated therein are true.
/s/Suzanne H. Podhorecki
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Notary Public
My Commission Expires:
October 31, 2001