Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SF HOLDINGS GROUP, INC.
SF HOLDINGS GROUP, INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is SF Holdings Group, Inc.
2. The original Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") was filed with the Secretary of State of the
State of Delaware on December 24, 1997.
3. A Restated Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on August 19, 1999.
4. A Certificate of Amendment to the Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
January 12, 2001.
5. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate of Incorporation
restates and amends the provisions of the Certificate of Incorporation, and such
amendments have been duly adopted in accordance with the above-referenced
Sections.
6. The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as set forth in Exhibit A attached hereto.
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
has been duly executed this 24th day of January, 2002.
SF HOLDINGS GROUP, INC.
By: /s/ Hans Heinsen
-----------------------------
Name: Hans Heinsen
Title: Senior Vice President
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SF HOLDINGS GROUP, INC.
FIRST: The name of the Corporation is SF Holdings Group, Inc.
SECOND: The address of the registered office of the Corporation in
Delaware is 2711 Centerville Road, Suite 400, Wilmington, 19808, in New Castle
County, and the name of the registered agent of the Corporation at such address
is Corporation Service Corporation.
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 Delaware.
FOURTH. The total number of shares of all classes of stock which
the Corporation shall have authority to issue is two million two hundred and
twenty thousand (2,220,000) shares, consisting of:
(a) two million one hundred thousand (2,100,000) shares of Common
Stock, par value $.001 per share (hereinafter referred to as "Common
Stock");
(b) twenty thousand (20,000) shares of Exchangeable Preferred Stock,
par value $.001 per share (hereinafter referred to as "Preferred Stock");
and
(c) one hundred thousand (100,000) shares of Class B Preferred
Stock, par value $.001 per share (hereinafter referred to as "Class B
Preferred Stock").
The designations, relative rights, preferences and limitations of shares
of each class and the authority of the Board of Directors to fix the
designations, relative rights, preferences and limitations of shares of each
class not fixed hereby shall be as follows:
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A. PREFERRED STOCK
The powers, preferences and rights, and the qualifications, limitations
and restrictions, of the Preferred Stock are as follows:
1. The Preferred Stock shall, with respect to dividend distributions and
distributions upon the liquidation, winding up or dissolution of the
Corporation, rank senior to all classes of Common Stock of the Corporation and,
except as provided in the following proviso, to each other class or series of
capital stock issued by the Corporation now or hereafter created (collectively,
"Junior Stock"); provided, however, that the Board of Directors may authorize a
class or series of preferred stock on a parity in powers, preferences and rights
to the Preferred Stock (collectively, "Parity Stock") or senior in powers,
preferences and rights to the Preferred Stock (collectively, "Senior Stock") if
approved by the holders of a majority of the shares of Preferred Stock.
2. (a) The holders of shares of Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds of the
Corporation legally available therefor, cumulative dividends at an annual rate
equal to 13.75%. Until March 15, 2003, dividends on the Preferred Stock will be
payable quarterly in arrears on March 15, June 15, September 15 and December 15
of each year (each, a "Dividend Payment Date"), commencing June 15, 1998, (i) in
cash or, at the option of the Corporation, (ii) by issuing shares of Preferred
Stock with an aggregate Liquidation Amount (as defined in subparagraph 3 below)
equal to the amount of such dividends. From and after such time, dividends on
the Preferred Stock shall be payable quarterly in arrears in cash except to the
extent that the covenants applicable to Indebtedness (as defined in subparagraph
8 below) of the Corporation prohibit such cash payments or the covenants
applicable to securities and/or Indebtedness of the Corporation's subsidiaries
prohibit such subsidiaries from distributing the necessary cash to the
Corporation. Dividends in arrears on the Preferred Stock may be paid at any
time, without reference to any regular dividend payment date. Dividends will
accrue and be cumulative from the date of original issue of the Preferred Stock,
whether or not declared for any reason (including if such declaration is
prohibited under any outstanding indebtedness or borrowing or other contractual
provision binding on the Corporation or any of its subsidiaries) and whether or
not there will be funds of the Corporation legally available for the payment
thereof. Dividends accruing and not declared until March 15, 2003 shall, when
declared, be payable in cash or additional shares of Preferred Stock as
described above. All accrued and unpaid dividends will be compounded at the
dividend rate on a quarterly basis. All dividends that accrue in accordance with
the foregoing provisions shall be cumulative from and after March 15, 2003.
(b) No dividend or other distribution (payable other than in shares of
Junior Stock) shall be paid to the holders of Junior Stock, and no shares of
Junior Stock shall be purchased, redeemed or otherwise acquired by the
Corporation or any of its subsidiaries (except by conversion into or in exchange
for Junior Stock), nor shall any monies be paid or made available for a
purchase, redemption or sinking fund for the purchase or redemption of any
Junior Stock unless (i) all dividends on the outstanding shares of Preferred
Stock that shall have accrued through any prior Dividend Payment Date shall have
been paid or declared and funds set
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apart for payment thereof; (ii) the Corporation shall not be in default on any
of its obligations to purchase or redeem the Preferred Stock pursuant to
subparagraphs 4 or 5 of this Paragraph A; and (iii) the Corporation shall not be
in default on any of the covenants included in subparagraph 8 of this Paragraph
A. When dividends are not paid in full upon the shares of Preferred Stock and
any Parity Stock, all dividends declared upon shares of Preferred Stock and all
Parity Stock shall be declared pro rata so that the amount of dividends declared
per share of Preferred Stock and all such Parity Stock shall in all cases bear
to each other the same ratio that accrued dividends per share on the shares of
Preferred Stock and all such Parity Stock bear to each other.
3. In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, no payment or distribution of
assets shall be made to or set apart for the holders of Junior Stock unless the
holders of shares of Preferred Stock shall have received, out of assets legally
available therefor, Ten Thousand Dollars ($10,000.00) per share of Preferred
Stock (the "Liquidation Amount") plus an amount of cash equal to the dividends,
whether or not earned or declared, accrued and unpaid thereon to the date of
final distribution to such holder. If upon any such distribution of assets in
liquidation or dissolution or upon the winding up of the affairs of the
Corporation the amount which would be distributed to the holders of the
outstanding shares of Preferred Stock would be less than this amount, then such
lesser amount shall be distributed pro rata to the holders of then outstanding
shares of Preferred Stock and to the holders of then outstanding shares of
Parity Stock, and no distribution shall be made to the holders of Junior Stock.
None of the consolidation or the merger of the Corporation, or the sale, lease
or transfer by the Corporation of all or any part of its assets, shall be deemed
to be a liquidation, dissolution or winding up of the Corporation for purposes
of this subparagraph 3.
4. The Corporation shall redeem the Preferred Stock on March 15, 2009, out
of funds legally available for such purpose, at a redemption price per share, in
cash, equal to the Liquidation Amount plus an amount of cash equal to the
dividends, whether or not earned or declared, accrued and unpaid thereon to the
date of redemption. Shares of Preferred Stock redeemed pursuant to this
subparagraph 4 shall be cancelled and shall not be reissued.
5. (a) Except as set forth below, the Preferred Stock shall not be
redeemable at the Corporation's option prior to March 15, 2003. From and after
March 15, 2003, the Corporation may, at its option, redeem the Preferred Stock,
in whole or in part, at the redemption prices (expressed as percentages of the
Liquidation Amount) set forth below, plus an amount of cash equal to the
dividends, whether or not earned or declared, accrued and unpaid thereon to the
date of redemption, if redeemed during the twelve-month period beginning on
March 15 of the years indicated below:
Year Percentage
---- ----------
2003..................................... 106.875%
2004..................................... 104.583%
2005..................................... 102.293%
2006 and thereafter...................... 100.000%
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(b) If less than all outstanding shares of Preferred Stock are to be
redeemed, the shares to be redeemed shall be selected pro rata (with any
fractional shares being rounded to the nearest whole share) according to the
number of whole shares held by each holder of Preferred Stock.
(c) In the event the Corporation shall redeem shares of Preferred Stock
pursuant to subparagraphs 4 or 5 hereof, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the redemption date, to each holder of record of the
shares to be redeemed at such holder's address as the same appears on the stock
register of the Corporation. Each such redemption notice shall state: (i) the
redemption date; (ii) the number of shares of Preferred Stock to be redeemed and
, if fewer than all the shares held by such holder are to be redeemed, the
number of shares to be redeemed from such holder; (iii) the redemption price;
(iv) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date. On or after
the date so specified, each holder of then outstanding shares of Preferred Stock
so to be redeemed shall surrender the certificate or certificates evidencing the
Preferred Stock held by such holder to the Corporation at its principal office
(or such other office or agency of the Corporation as the Corporation may
designate in such notice), in exchange for payment to its order or that of its
nominee, as such holder shall request, in an aggregate amount equal to the
aggregate redemption amount of the shares of Preferred Stock so redeemed. The
Corporation shall reissue to each such holder a certificate for any shares of
Preferred Stock surrendered but not redeemed. All shares of Preferred Stock
which are redeemed pursuant to this subparagraph 5 shall be cancelled and shall
not be reissued.
6. (a) The Corporation may, at its option, on any Dividend Payment Date
with respect to the Preferred Stock, redeem all, but not less than all, of the
then outstanding shares of Preferred Stock in exchange for the Corporation's
13.75% Subordinated Notes due March 15, 2009 to be issued pursuant to an
indenture between the Corporation and a trustee and having substantially the
terms assigned to the Preferred Stock as set forth in this Paragraph A of
Article FOURTH (the "Subordinated Notes"), at a rate of one dollar (or fraction
thereof) principal amount of Subordinated Notes for each dollar (or fraction
thereof) in Liquidation Amount plus, subject to the following paragraph, the
cash value of any accrued and unpaid dividends payable in kind and the amount of
any accrued and unpaid cash dividends, whether or not earned or declared,
accrued and unpaid thereon to the date of exchange (provided that no event of
default under the indenture governing the Subordinated Notes shall have occurred
and be continuing).
(b) Cash dividends on any shares of Preferred Stock exchanged for
Subordinated Notes which have accrued but have not been paid as of the date of
exchange shall be paid, at the option of the Corporation, in cash or in
additional Subordinated Notes in an equivalent principal amount of such accrued
and unpaid dividends. In no event shall the Corporation issue Subordinated Notes
in denominations other than $1,000 or in an integral multiple thereof. Cash will
be paid in lieu of any such fraction of Subordinated Notes that would otherwise
have been issued (which shall be determined with respect to the aggregate
principal amount of Subordinated Notes to be issued to a holder upon any such
exchange). Interest will accrue on the Subordinated Notes from the date of
exchange.
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(c) In the event the Corporation shall exchange shares of Preferred
Stock, notice of such exchange shall be given by first class mail, postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the
exchange date, to each holder of record of the shares of Preferred Stock to be
exchanged at such holder's address as the same appears on the stock register of
the Corporation. Each such exchange notice shall state: (A) the exchange date;
(B) the principal amount of Subordinated Notes to be received by the exchanging
holder; (C) the place or places where the certificate or certificates for such
shares of Preferred Stock are to be exchanged for notes evidencing the
Subordinated Notes to be received by the exchanging holder; and (D) that
dividends on the shares of Preferred Stock to be exchanged will cease to accrue
on such exchange date. On the date so specified, each holder of then outstanding
shares of Preferred Stock shall surrender the certificate or certificates
evidencing the Preferred Stock held by such holder to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate in such notice), in exchange for the Subordinated
Notes to which such holder is entitled, registered in such holder's name or that
of its nominee or payable to its order or that of its nominee, as such holder
shall request, and in such denominations as such holder shall request. All
shares of Preferred Stock which are redeemed pursuant to this subparagraph 6
shall be cancelled and shall not be reissued.
(d) Prior to giving notice of intention to exchange, the Corporation
shall execute and deliver with a bank or trust company selected by the
Corporation an indenture having substantially the terms assigned to the
Preferred Stock as set forth in this Paragraph A of Article FOURTH. The
Corporation will cause the Subordinated Notes to be authenticated on the
Dividend Payment Date on which the exchange is effective, and will pay interest
on the Subordinated Notes at the rate and on the dates specified in such
indenture from the exchange date.
(e) The Corporation will not give notice of its intention to exchange
unless it shall file at the place or places (including a place in the Borough of
Manhattan, The City of New York) maintained for such purpose an opinion of
counsel (who may be an employee of the Corporation) to the effect that (i) the
indenture has been duly authorized, executed and delivered by the Corporation,
has been duly qualified under the Trust Indenture Act of 1939 (or that such
qualification is not necessary) and constitutes a valid and binding instrument
enforceable against the Corporation in accordance with its terms (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, and subject to such other qualifications as are then customarily
contained in opinions of counsel experienced in such matters), (ii) the
Subordinated Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the indenture and delivered
in exchange for the shares of Preferred Stock, will constitute valid and binding
obligations of the Corporation entitled to the benefits of the indenture
(subject to the aforesaid), (iii) neither the execution nor delivery of the
indenture or the Subordinated Notes nor compliance with the terms, conditions or
provisions of such instruments will result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or agreement or instrument, known to such counsel, to
which the Corporation or any of its subsidiaries is a party or by which it or
any of them is bound, or any decree, judgment, order, rule or regulation, known
to such counsel, of any court or governmental agency or body having jurisdiction
over the Corporation and such subsidiaries or any of their properties, and (iv)
the Subordinated Notes have been duly
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registered for such exchange with the Securities and Exchange Commission under a
registration statement that has become effective under the Securities Act of
1933 (the "Act") or that the exchange of the Subordinated Notes for the shares
of Preferred Stock is exempt from registration under the Act.
(f) The exchange shall be deemed to have been effected immediately
prior to the close of business on the relevant Dividend Payment Date on or prior
to which the certificates for shares of Preferred Stock shall have been
surrendered, and the person in whose name or names the Subordinated Notes shall
be issuable upon such exchange shall be deemed to have become the holder of
record of the Subordinated Notes represented thereby at such time on such
Dividend Payment Date.
(g) Prior to the delivery of any securities which the Corporation shall
be obligated to deliver upon exchange of the Preferred Stock, the Corporation
shall comply with all applicable federal and state laws and regulations that
require action to be taken by the Corporation. The Corporation will pay any and
all documentary stamp or similar issue or transfer taxes payable in respect of
the issue or delivery of notes evidencing Subordinated Notes on exchange of the
Preferred Stock pursuant hereto; provided that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issue or delivery of notes evidencing Subordinated Notes in a name other
than that of the holder of the Preferred Stock to be exchanged and no such issue
or delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Corporation the amount of any such tax or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
7. (a) The holders of shares of Preferred Stock shall not be entitled to
any voting rights, except as described below or as otherwise required by
applicable law. In the event the Corporation fails to (i) pay dividends for six
or more quarters (whether or not consecutive), or (ii) satisfy any mandatory
redemption obligation with respect to the Preferred Stock (regardless of whether
the reason for such failure is lack of legally available funds), the Board of
Directors of the Corporation shall be increased by two members and the holders
of a majority of the outstanding shares of Preferred Stock, voting as a separate
class, shall be entitled to elect two members to the Board of Directors of the
Corporation. The foregoing voting rights shall cease, and the term of office of
any directors elected pursuant to the exercise of the foregoing voting rights
shall terminate, if and when the failure by the Corporation giving rise to such
voting rights is cured, but subject always to the vesting of such right in the
case of a similar future event. The foregoing voting rights may be exercised
initially either by written consent or at a special meeting of the holders of
the Preferred Stock, called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and thereafter at each
subsequent annual meeting. At any time when such voting rights shall have
vested, and if such right shall not already have been exercised by written
consent, a proper officer of the Corporation may call, and, upon the written
request, addressed to the Secretary of the Corporation, of the record holders of
shares representing twenty-five percent (25%) of the voting power of the shares
then outstanding of the Preferred Stock, shall call a special meeting of the
holders of the Preferred Stock. Such meeting shall be held at the earliest
practicable date upon the notice required for annual meetings of stockholders at
the place for holding annual meetings of stockholders of the Corporation, or, if
none, at a place designated by the Board of Directors. Notwithstanding the
foregoing, no such special meeting shall be called during a period within 60
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days immediately preceding the date fixed for the next annual meeting of
stockholders. At any meeting held for the purpose of electing directors at which
the holders of Preferred Stock shall have the right to elect directors as
provided herein, the presence in person or by proxy of the holders of shares
representing more than fifty percent (50%) in voting power of the then
outstanding shares of the Preferred Stock having such right shall be required
and shall be sufficient to constitute a quorum of such class for the election of
directors by such class. Any director elected by holders of Preferred Stock
pursuant to such voting rights shall hold office until the next annual meeting
of stockholders (unless such term has previously terminated as described above)
and any vacancy in respect of any such director shall be filled only by vote of
the remaining director so elected or, if there be no such remaining director, by
the holders of Preferred Stock by written consent or at a special meeting called
in accordance with the procedures set forth above or, if no special meeting is
called or written consent executed, at the next annual meeting of stockholders.
(b) The approval of the holders of a majority of the outstanding shares
of Preferred Stock, voting as a separate class, shall also be required for (i)
the authorization by the Corporation of any series of preferred stock ranked
senior or on a parity in powers, preferences and rights to the Preferred Stock
(including any additional shares of Preferred Stock), (ii) the amendment or
modification of any provisions of the Certificate of Incorporation of the
Corporation in any manner that would adversely affect the voting powers,
designations, preferences and rights of the Preferred Stock and (iii) any merger
or consolidation or sale of all or substantially all of the assets of the
Corporation if the terms of such transaction do not provide for the repurchase
or redemption of all of the shares of Preferred Stock upon consummation of such
merger, consolidation or sale. Notwithstanding the foregoing, upon a refinancing
of the Corporation's 12.75% Senior Discount Notes due 2008 (the "Discount
Notes"), the Certificate of Incorporation of the Corporation may be amended or
modified without any approval of the holders of the Preferred Stock to reflect
covenants in the new notes which are more favorable to the Corporation than
those contained in the Discount Notes.
8. As used herein, the following terms are ascribed with the following
meanings:
"Affiliate" of any specified Person means any other Person (as
described below) directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the Voting Stock
(as described below) of a Person shall be deemed to be control.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP (as defined below).
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or
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limited liability company, partnership or membership interests (whether general
or limited) and (iv) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, excluding stock appreciation
rights issued in the ordinary course of business.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Corporation who (i) was a member of such
Board of Directors on March 12, 1998 or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of the Board at the time of such
nomination or election.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Event of Default" is ascribed the meaning set forth in Section 6.01
of the Indenture.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on March 12, 1998.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness (as defined below).
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien (as defined below) on any asset of such Person (whether or not such
Indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, and (ii) the principal amount
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thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
"Indenture" means the Indenture, dated as of March 12, 1998, between
the Corporation and The Bank of New York, as trustee (the "Trustee"), governing
the Corporation's 12.75% Senior Discount Notes due 2008.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Principals" means Dennis Mehiel, his lineal descendants and any
trust, corporation, partnership, association, limited liability company or other
entity in which Dennis Mehiel and/or his lineal descendants hold at least 80% of
the total, combined outstanding voting power or similar controlling interest.
"Senior Discount Notes" means the Corporation's 12.75% Senior
Discount Notes due 2008.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
B. CLASS B PREFERRED STOCK
Shares of Class B Preferred Stock may be issued from time to time in one
or more series, as may from time to time be determined by the Board of
Directors, each of said series to be distinctly designated. All shares of any
one series of Class B Preferred Stock shall be alike in every particular, except
that there may be different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting rights, if any, and the preferences
and relative, participating, optional and other special rights of each such
series, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding; and,
subject to the provisions of Paragraph A of this Article FOURTH and subparagraph
2 of Paragraph E of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular series
of Class B Preferred Stock, the voting rights, if any, and the designations,
preferences and relative, participating, optional and other special rights, and
the qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
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(a) The distinctive designation of, and the number of shares of Class B
Preferred Stock which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof then outstanding) from
time to time by like action of the Board of Directors;
(b) The rate and times at which, and the terms and conditions on which,
dividends, if any, on Class B Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the dividends
payable on any other class or classes or series of the same or other classes of
stock and whether such dividends shall be cumulative or non-cumulative;
(c) The right, if any, of the holders of Class B Preferred Stock of
such series to convert the same into, or exchange the same for, shares of any
other class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(d) Whether or not Class B Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Class B Preferred Stock of such
series may be redeemed;
(e) The rights, if any, of the holders of Class B Preferred Stock of
such series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding-up of the
Corporation;
(f) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Class B Preferred Stock of such series; and
(g) The voting powers, if any, of the holders of such series of Class B
Preferred Stock which may, without limiting the generality of the foregoing,
include the right, voting as a series by itself or together with other series of
Class B Preferred Stock or all series of Class B Preferred Stock as a class, to
vote on such matters or under such circumstances and on such conditions as the
Board of Directors may determine.
C. CLASS B SERIES 1 PREFERRED STOCK
Pursuant to the authority granted to the Board of Directors in Paragraphs
B and C of this Article FOURTH, fifteen thousand (15,000) of the authorized
shares of Class B Preferred Stock are hereby designated as Class B Series 1
Preferred Stock. The powers, preferences and rights, and the qualifications,
limitations and restrictions, of the Class B Series 1 Preferred Stock are as
follows:
1. The holder of shares of Class B Series 1 Preferred Stock shall not be
entitled to receive any dividends whatsoever.
2. The Class B Series 1 Preferred Stock shall, with respect to
distributions upon the liquidation, winding up or dissolution of the
Corporation, rank junior to the Preferred Stock and senior to all classes of
Common Stock of the Corporation and, except as provided in the following
proviso, to each other class or series of capital stock issued by the
Corporation now or
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hereafter created (collectively, together with the Common Stock, "Series 1
Junior Stock"); provided, however, that the Board of Directors may authorize a
class or series of preferred stock on a parity in powers, preferences and rights
to the Class B Series 1 Preferred Stock (collectively, "Series 1 Parity Stock")
or senior in powers, preferences and rights to the Class B Series 1 Preferred
Stock (collectively, "Series 1 Senior Stock") if approved by the holders of a
majority of the shares of Class B Series 1 Preferred Stock; provided, however,
that no such class or series of Series 1 Senior Stock shall be senior in powers,
preferences and rights to the Preferred Stock except as provided in subparagraph
1 of Paragraph A of this Article FOURTH.
3. In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, no payment or distribution of
assets shall be made to or set apart for the holders of Series 1 Junior Stock
unless the holders of shares of Class B Series 1 Preferred Stock shall have
received, out of assets legally available therefor, one thousand dollars
($1,000) per share of Class B Series 1 Preferred Stock (the "Liquidation
Value"). If upon any such distribution of assets in liquidation or dissolution
or upon the winding up of the affairs of the Corporation the amount which would
be distributed to the holder of the outstanding shares of Class B Series 1
Preferred Stock would be less than this amount, then such lesser amount shall be
distributed pro rata to the holders of then outstanding shares of Class B Series
1 Preferred Stock and to the holders of then outstanding shares of Series 1
Parity Stock, and no distribution shall be made to the holders of Series 1
Junior Stock. None of the consolidation or the merger of the Corporation, or the
sale, lease or transfer by the Corporation of all or any part of its assets,
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation for purposes of this subparagraph 3.
4. (a) The Corporation shall redeem all, but not less than all, of the
Class B Series 1 Preferred Stock on March 13, 2010, out of funds legally
available for such purpose, at a redemption price per share, in cash, equal to
the aggregate Liquidation Value. Notice of such redemption shall be given by
first class mail, postage prepaid, mailed not less than 30 days nor more than 60
days prior to the redemption date, to each holder of record of the shares to be
redeemed at such holder's address as the same appears on the stock register of
the Corporation. Each such redemption notice shall state: (i) the redemption
date; (ii) the number of shares of Class B Series 1 Preferred Stock to be
redeemed; and (iii) the place or places where certificates for such shares are
to be surrendered for payment of the redemption price. On or after the date so
specified, each holder of then outstanding shares of Class B Series 1 Preferred
Stock so to be redeemed shall surrender the certificate or certificates
evidencing the Class B Series 1 Preferred Stock held by such holder to the
Corporation at its principal office (or such other office or agency of the
Corporation as the Corporation may designate in such notice), in exchange for
payment to its order or that of its nominee, as such holder shall request, in an
aggregate amount equal to the aggregate redemption amount of the shares of Class
B Series 1 Preferred Stock so redeemed. All shares of Preferred Stock which are
redeemed pursuant to this subparagraph 4 shall be cancelled and shall not be
reissued.
(b) No dividend or other distribution (payable other than in shares of
Series 1 Junior Stock) shall be paid to the holders of Series 1 Junior Stock,
and no shares of Series 1 Junior Stock shall be purchased, redeemed or otherwise
acquired by the Corporation or any of its subsidiaries (except by conversion
into or in exchange for Series 1 Junior Stock), nor shall any monies be paid or
made available for a purchase, redemption or sinking fund for the purchase or
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redemption of any Series 1 Junior Stock unless the Corporation shall not be in
default on any of its obligations to purchase or redeem the Class B Series 1
Preferred Stock pursuant to this subparagraph 4.
5. (a) The shares of Class B Series 1 Preferred Stock may, at the option
of the holder, at any time and from time to time, be converted into shares of
fully paid and non-assessable shares of Class A Common Stock or Class B Common
Stock, at the conversion ratio of one (1) share of Class B Series 1 Preferred
Stock for 8.89963 shares of Class A Common Stock or Class B Common Stock,
subject to adjustment for any subdivision or combination of, or stock dividend
on, the Class A Common Stock or Class B Common Stock. The fifteen thousand
(15,000) shares of Class B Series 1 Preferred Stock authorized shall, initially,
be convertible into one million three hundred thirty four thousand nine hundred
and forty five (133,494.5) shares of Class A Common Stock or Class B Common
Stock.
(b) Upon receipt by the Corporation from the record holder of the
shares of Class B Series 1 Preferred Stock of a written request to convert its
shares of Class B Series 1 Preferred Stock, the shares of Class B Series 1
Preferred Stock shall be converted into shares of Class A Common Stock or Class
B Common Stock, as specified in such written request, at the conversion ratio
specified in subparagraph 5(a) above. The conversion of shares hereunder shall
be effective, subject to the terms of this subparagraph 5, as of the close of
business on the date of the receipt by the Corporation of such request to
convert, and the holder entitled to receive the shares issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
on such date.
(c) The conversion of shares of Class B Series 1 Preferred Stock shall
be exercised by the surrender by the holder of the certificates representing the
shares being converted accompanied by a written notice of conversion signed by
such holder or its duly authorized agent, at the principal office of the
Corporation (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of Class B Series
1 Preferred Stock) at any time during its usual business hours, and stating the
name or names in which such holder wishes the certificates for Class A Common
Stock or Class B Common Stock to be received upon conversion to be issued and
the address to which such certificates shall be delivered. In case such notice
shall specify a name or names other than that of the holder, such notice shall
be accompanied by payment of any and all transfer taxes payable upon the
issuance of the Class A Common Stock or Class B Common Stock upon conversion and
all instruments of transfer appropriately completed to permit such issuance.
Subject to the foregoing, the issuance of certificates for shares of Class A
Common Stock or Class B Common Stock upon conversion of shares of Class B Series
1 Preferred Stock shall be made without charge to the holder of such converted
shares for any costs incurred by the Corporation in connection with such
conversion and related issuance of shares. As soon as practicable after such
surrender of such certificates, the Corporation shall issue and deliver at such
address as is specified by such holder the certificates for the number of shares
of Class A Common Stock or Class B Common Stock to which such holder shall be
entitled as aforesaid.
(d) The Corporation shall at all times reserve and keep available, out
of its authorized and unissued shares, solely for the purpose of issue upon the
conversion of shares of Class B Series 1 Preferred Stock as herein provided,
such number of shares of Class A Common
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Stock and Class B Common Stock as shall then be issuable upon the conversion of
the shares of Class B Series 1 Preferred Stock. All shares of Class A Common
Stock and Class B Common Stock issuable upon any conversion described herein
shall, when issued, be duly and validly issued and fully paid and
non-assessable. The Corporation will take such action as may be necessary to
assure that all such shares of Class A Common Stock and Class B Common Stock may
be so issued without violation of any applicable requirements of any national
stock exchange upon which the shares of Common Stock of the Corporation may be
listed.
6. The holder of shares of Class B Series 1 Preferred Stock shall not be
entitled to any voting rights whatsoever, except as provided in subparagraph 2
of this Paragraph C and except to the extent otherwise required by applicable
law.
7. In case at any time or from time to time the Corporation shall take any
action in respect of the Common Stock, then unless such action will not have a
materially adverse effect upon the conversion rights of the holders of Class B
Series 1 Preferred Stock, the conversion rights set forth in subparagraph 5 of
this Paragraph C shall, in the good faith judgment of the Board of Directors of
the Corporation, be adjusted in such manner as shall be equitable in the
circumstances.
8. In the event that the Corporation shall propose (a) to pay any stock
dividend to the holders of its Common Stock or to make any other distribution to
the holders of its Common Stock, or (b) to offer to the holders of its Common
Stock rights, warrants or options to subscribe for or to purchase any additional
shares of Common Stock or shares of stock of any class or any other securities,
rights or options, or (c) to effect any reclassification of its Common Stock
(other than a reclassification involving only the subdivision or combination of
outstanding shares of Common Stock), or (d) to effect any consolidation, merger
or sale, transfer or other disposition of all or substantially all of the assets
of the Corporation, or (e) to effect the liquidation, dissolution or winding-up
of the Corporation, or (f) to effect any transaction that would constitute or
effect a Change of Control (as defined below), then, in each such case, the
Corporation shall give to the holders of the Class B Series 1 Preferred Stock a
notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution or offer of rights, warrants or
options, or the date on which such reclassification, consolidation, merger,
sale, transfer, disposition, liquidation, dissolution, winding-up or Change of
Control is to take place and the date of participation therein by the holders of
Common Stock, if any such date is to be fixed. Such notice shall be so given at
least 20 days prior to (i) the record date for the purposes of any action
covered by clause (a) or (b) above or (ii) the earlier of the date of the taking
of such proposed action or the date of participation therein by the holders of
Common Stock, for the purposes of any action covered by clause (c), (d), (e) or
(f) above. As used herein, "Change of Control" means the occurrence of any of
the following: (i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Corporation and
its Restricted Subsidiaries taken as a whole to any "person" (as such term is
used in Section 13(d)(3) of the Exchange Act of 1934, as amended (the "Exchange
Act")) or "group" (as defined in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) other than the Principals, (ii) the adoption of a plan relating to the
liquidation or dissolution of the Corporation, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" or "group" (as defined above), other than
the Principals, becomes the
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"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 of the
Exchange Act), directly or indirectly, of more of the voting power of the.
Voting Stock of the Corporation than at that time is beneficially owned by the
Principals, or (iv) the first day on which more than a majority of the directors
on the Board of Directors of the Corporation are not Continuing Directors. For
purposes of this definition of Change of Control, any transfer of any equity
interest of an entity that was formed for the purpose of acquiring Voting Stock
of the Corporation will be deemed to be a transfer of such portion of such
Voting Stock as corresponds to the portion of the equity of such entity that has
been so transferred.
D. CLASS B SERIES 2 PREFERRED STOCK
Pursuant to the authority vested in the Board of Directors in Paragraphs B
and D of this Article FOURTH, fifteen thousand (15,000) of the authorized shares
of Class B Preferred Stock are hereby designated as Class B Series 2 Preferred
Stock. The powers, preferences and rights, and the qualifications, limitations
and restrictions, of the Class B Series 2 Preferred Stock are as follows:
1. The holder of shares of Class B Series 2 Preferred Stock shall not be
entitled to receive any dividends whatsoever.
2. The Class B Series 2 Preferred Stock shall, with respect to
distributions upon the liquidation, winding up or dissolution of the
Corporation, rank junior to the Preferred Stock and senior to all classes of
Common Stock of the Corporation and, except as provided in the following
proviso, to each other class or series of capital stock issued by the
Corporation now or hereafter created (collectively, together with the Common
Stock, "Series 2 Junior Stock"); provided, however, that the Board of Directors
may authorize a class or series of preferred stock on a parity in powers,
preferences and rights to the Class B Series 2 Preferred Stock (collectively,
"Series 2 Parity Stock") or senior in powers, preferences and rights to the
Class B Series 2 Preferred Stock (collectively, "Series 2 Senior Stock") if
approved by the holders of a majority of the shares of Class B Series 2
Preferred Stock; provided, however, that no such class or series of Series 2
Senior Stock shall be senior in powers, preferences and rights to the Preferred
Stock except as provided in subparagraph 1 of Paragraph A of Article FOURTH of
the Certificate of Incorporation.
3. In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, no payment or distribution of
assets shall be made to or set apart for the holders of Series 2 Junior Stock
unless the holders of shares of Class B Series 2 Preferred Stock shall have
received, out of assets legally available therefor, one thousand dollars
($1,000) per share of Class B Series 2 Preferred Stock (the "Liquidation
Value"). If upon any such distribution of assets in liquidation or dissolution
or upon the winding up of the affairs of the Corporation the amount which would
be distributed to the holder of the outstanding shares of Class B Series 2
Preferred Stock would be less than this amount, then such lesser amount shall be
distributed pro rata to the holders of then outstanding shares of Class B Series
2 Preferred Stock and to the holders of then outstanding shares of Series 2
Parity Stock, and no distribution shall be made to the holders of Series 2
Junior Stock. None of the consolidation or the merger of the Corporation, or the
sale, lease or transfer by the Corporation of all or any part of its assets,
-15-
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation for purposes of this paragraph 3.
4. (a) The Corporation shall redeem all, but not less than all, of the
Class B Series 2 Preferred Stock on March 13, 2010, out of funds legally
available for such purpose, at a redemption price per share, in cash, equal to
the aggregate Liquidation Value (as defined in the Certificate of
Incorporation). Notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 days nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed at such
holder's address as the same appears on the stock register of the Corporation.
Each such redemption notice shall state: (i) the redemption date; (ii) the
number of shares of Class B Series 2 Preferred Stock to be redeemed; and (iii)
the place or places where certificates for such shares are to be surrendered for
payment of the redemption price. On or after the date so specified, each holder
of then outstanding shares of Class B Series 2 Preferred Stock so to be redeemed
shall surrender the certificate or certificates evidencing the Class B Series 2
Preferred Stock held by such holder to the Corporation at its principal office
(or such other office or agency of the Corporation as the Corporation may
designate in such notice), in exchange for payment to its order or that of its
nominee, as such holder shall request, in an aggregate amount equal to the
aggregate redemption amount of the shares of Class B Series 2 Preferred Stock so
redeemed. All shares of Preferred Stock which are redeemed pursuant to this
paragraph 4 shall be cancelled and shall not be reissued.
(b) No dividend or other distribution (payable other than in shares of
Series 2 Junior Stock) shall be paid to the holders of Series 2 Junior Stock,
and no shares of Series 2 Junior Stock shall be purchased, redeemed or otherwise
acquired by the Corporation or any of its subsidiaries (except by conversion
into or in exchange for Series 2 Junior Stock), nor shall any monies be paid or
made available for a purchase, redemption or sinking fund for the purchase or
redemption of any Series 2 Junior Stock unless the Corporation shall not be in
default on any of its obligations to purchase or redeem the Class B Series 2
Preferred Stock pursuant to this paragraph 4.
5. (a) The shares of Class B Series 2 Preferred Stock may, at the option
of the holder, at any time and from time to time, be converted into shares of
fully paid and non-assessable shares of Class A Common Stock or Class B Common
Stock, at the conversion ratio of one (1) share of Class B Series 2 Preferred
Stock for 8.89963 shares of Class A Common Stock or Class B Common Stock,
subject to adjustment for any subdivision or combination of, or stock dividend
on, the Class A Common Stock or Class B Common Stock. The fifteen thousand
(15,000) shares of Class B Series 2 Preferred Stock authorized shall, initially,
be convertible into one hundred thirty three thousand four hundred ninety four
and one-half (133,494.5) shares of Class A Common Stock or Class B Common Stock.
(b) Upon receipt by the Corporation from the record holder of the
shares of Class B Series 2 Preferred Stock of a written request to convert its
shares of Class B Series 2 Preferred Stock, the shares of Class B Series 2
Preferred Stock shall be converted into shares of Class A Common Stock or Class
B Common Stock, as specified in such written request, at the conversion ratio
specified in subparagraph 5(a) above. The conversion of shares hereunder shall
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be effective, subject to the terms of this paragraph 5, as of the close of
business on the date of the receipt by the Corporation of such request to
convert, and the holder entitled to receive the shares issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
on such date.
(c) The conversion of shares of Class B Series 2 Preferred Stock shall
be exercised by the surrender by the holder of the certificates representing the
shares being converted accompanied by a written notice of conversion signed by
such holder or its duly authorized agent, at the principal office of the
Corporation (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of Class B Series
2 Preferred Stock) at any time during its usual business hours, and stating the
name or names in which such holder wishes the certificates for Class A Common
Stock or Class B Common Stock to be received upon conversion to be issued and
the address to which such certificates shall be delivered. In case such notice
shall specify a name or names other than that of the holder, such notice shall
be accompanied by payment of any and all transfer taxes payable upon the
issuance of the Class A Common Stock or Class B Common Stock upon conversion and
all instruments of transfer appropriately completed to permit such issuance.
Subject to the foregoing, the issuance of certificates for shares of Class A
Common Stock or Class B Common Stock upon conversion of shares of Class B Series
2 Preferred Stock shall be made without charge to the holder of such converted
shares for any costs incurred by the Corporation in connection with such
conversion and related issuance of shares. As soon as practicable after such
surrender of such certificates, the Corporation shall issue and deliver at such
address as is specified by such holder the certificates for the number of shares
of Class A Common Stock or Class B Common Stock to which such holder shall be
entitled as aforesaid.
(d) The Corporation shall at all times reserve and keep available, out
of its authorized and unissued shares, solely for the purpose of issue upon the
conversion of shares of Class B Series 2 Preferred Stock as herein provided,
such number of shares of Class A Common Stock and Class B Common Stock as shall
then be issuable upon the conversion of the shares of Class B Series 2 Preferred
Stock. All shares of Class A Common Stock and Class B Common Stock issuable upon
any conversion described herein shall, when issued, be duly and validly issued
and fully paid and non-assessable. The Corporation will take such action as may
be necessary to assure that all such shares of Class A Common Stock and Class B
Common Stock may be so issued without violation of any applicable requirements
of any national stock exchange upon which the shares of Common Stock of the
Corporation may be listed.
6. In addition to the voting rights provided in paragraph 2 hereof, and
except as may otherwise be required by law, each holder of Class B Series 2
Preferred Stock shall have one vote in respect of each share of Class B Series 2
Preferred Stock held by it on all matters voted upon by the stockholders,
including election of directors, and shall vote together with the Class A Common
Stock and the Class B Common Stock as a single class.
7. In case at any time or from time to time the Corporation shall take any
action in respect of the Common Stock, then unless such action will not have a
materially adverse effect upon the conversion rights of the holders of Class B
Series 2 Preferred Stock, the conversion
-17-
rights set forth in paragraph 5 hereof shall, in the good faith judgment of the
Board of Directors of the Corporation, be adjusted in such manner as shall be
equitable in the circumstances.
8. In the event that the Corporation shall propose (a) to pay any stock
dividend to the holders of its Common Stock or to make any other distribution to
the holders of its Common Stock, or (b) to offer to the holders of its Common
Stock rights, warrants or options to subscribe for or to purchase any additional
shares of Common Stock or shares of stock of any class or any other securities,
rights or options, or (c) to effect any reclassification of its Common Stock
(other than a reclassification involving only the subdivision or combination of
outstanding shares of Common Stock), or (d) to effect any consolidation, merger
or sale, transfer or other disposition of all or substantially all of the assets
of the Corporation, or (e) to effect the liquidation, dissolution or winding-up
of the Corporation, or (f) to effect any transaction that would constitute or
effect a Change of Control (as defined in the Certificate of Incorporation),
then, in each such case, the Corporation shall give to the holders of the Class
B Series 2 Preferred Stock a notice of such proposed action, which shall specify
the record date for the purposes of such stock dividend, distribution or offer
of rights, warrants or options, or the date on which such reclassification,
consolidation, merger, sale, transfer, disposition, liquidation, dissolution,
winding-up or Change of Control is to take place and the date of participation
therein by the holders of Common Stock, if any such date is to be fixed. Such
notice shall be so given at least 20 days prior to (i) the record date for the
purposes of any action covered by clause (a) or (b) above or (ii) the earlier of
the date of the taking of such proposed action or the date of participation
therein by the holders of Common Stock, for the purposes of any action covered
by clause (c), (d), (e) or (f) above.
E. COMMON STOCK
The Common Stock shall be divided into one million four hundred thousand
(1,400,000) shares of Class A Common Stock, two hundred thousand (200,000)
shares of Class B Common Stock, three hundred thousand (300,000) shares of Class
C Common Stock and two hundred thousand (200,000) shares of Class D Common
Stock. The powers, preferences and rights, and the qualifications, limitations
and restrictions, of the Class A Common Stock, Class B Common Stock, Class C
Common Stock and, Class D Common Stock are as follows:
1. Except to the extent expressly set forth in subparagraph 4 or
subparagraph 5 of this Paragraph D, none of the Class A Common Stock, the Class
B Common Stock, the Class C Common Stock or Class D Common Stock has any
preference over, or with respect to, any other such class of Common Stock, and
each share of Class A Common Stock, Class B Common Stock, Class C Common Stock
and Class D Common Stock is vested with all of the same dividend and liquidation
rights.
2. After the requirements with respect to preferential dividends on the
Preferred Stock or the Class B Preferred Stock (fixed in accordance with the
provisions of Paragraphs A and B of this Article FOURTH), if any, shall have
been met and after the Corporation shall have complied with all the
requirements, if any, with respect to the setting aside of sums as sinking funds
or repurchase, redemption or purchase accounts (fixed in accordance with the
provisions of Paragraphs A and B of this Article FOURTH), and subject further to
any other conditions which may be fixed in accordance with the provisions of
Paragraphs A and B of this Article FOURTH,
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then and not otherwise the holders of Common Stock shall be entitled to receive
such dividends as may be declared from time to time by the Board of Directors
out of funds legally available therefor. When and as dividends are declared
thereon, whether payable in cash, property or securities of the Corporation,
holders of Class A Common Stock, Class B Common Stock, Class C Common Stock and
Class D Common Stock will be entitled to share in such dividends ratably
according to the number of shares of Class A Common Stock, Class B Common Stock,
Class C Common Stock and Class D Common Stock held by them. If dividends are
declared which are payable in shares of Class A Common Stock, Class B Common
Stock, Class C Common Stock or Class D Common Stock such dividends will be
declared payable at the same rate on each class of Common Stock, and the
dividends payable in shares of Class A Common Stock will be payable to the
holders of Class A Common Stock, the dividends payable in shares of Class B
Common Stock will be payable to the holders of Class B Common Stock, the
dividends payable in shares of Class C Common Stock will be payable to the
holders of Class C Common Stock and the dividends payable in shares of Class D
Common Stock will be payable in shares of Class D Common Stock. If a holder of
Class B, Class C or Class D Common Stock, as the case may be, shall convert any
of its respective shares of Class B, Class C or Class D Common Stock into shares
of Class A Common Stock pursuant to subparagraph 5 of this Paragraph D at a time
which falls after the record date, but before the payment date, of any dividend
declared by the Corporation, the holder shall be entitled to the receipt of such
declared dividend as though such conversion had not taken place.
3. After distribution in full of the preferential amount (fixed in
accordance with the provisions of Paragraphs A, B and C of this Article FOURTH),
if any, to be distributed to the holders of Preferred Stock and to the holders
of any series of Class B Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of Class A Common Stock, Class B
Common Stock, Class C Common Stock and Class D Common Stock shall be entitled to
share, ratably according to the number of shares of Class A Common Stock, Class
B Common Stock, Class C Common Stock and/or Class D Common Stock, respectively,
held by them, in all the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to stockholders.
4. Except as may otherwise be required by law, each holder of Class A
Common Stock shall have one vote in respect of each share of Class A Common
Stock held by it on all matters voted upon by the stockholders, including the
election of directors. Except as may otherwise be required by law, each holder
of Class B Common Stock shall have one-tenth (.1) of a vote in respect of each
share of Class B Common Stock held by it on all matters voted upon by the
stockholders, including the election of directors, and shall vote together with
the Class A Common Stock as a single class; provided, however, that the approval
of the holders of a majority of the outstanding shares of Class B Common Stock,
voting as a separate class, shall be required for the amendment or modification
of any provisions of the Certificate of Incorporation of the Corporation in any
manner that would adversely affect the powers, preferences and rights of the
Class B Common Stock. The holders of Class C Common Stock and Class D Common
Stock shall not be entitled to any vote whatsoever, except to the extent
otherwise required by applicable law.
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5. (a) Any share of Class B Common Stock may, at any time, be converted
into one fully paid and non-assessable share of Class A Common Stock (x) at the
option of any holder other than a Non-Converting Holder (as defined below) or
(y) at the option of any Non-Converting Holder concurrently with a sale or other
transfer of such shares of Class B Common Stock to any person, firm or
corporation other than a Non-Converting Holder, subject to the conditions
hereinafter set forth. For the purpose of this subparagraph 5, the term
"Non-Converting Holder" shall mean The Equitable Life Assurance Society of the
United States and any of its affiliates, or any other person, firm or
corporation that elects to be treated as a Non-Converting Holder by written
notice delivered to the Corporation on or before the date of acquisition of
shares of Class B Common Stock by such person, firm or corporation, which notice
refers to this sentence and states that such person, firm or corporation is
irrevocably electing to be treated as a Non-Converting Holder. Such written
notice shall be filed with the minutes of the proceedings of the Board of
Directors of the Corporation.
(b) Any share of Class C Common Stock may, following either (i) an
underwritten initial public offering of shares of Common Stock of the
Corporation or (ii) a refinancing of the Senior Discount Notes, be converted
into one fully paid and non-assessable share of Class A Common Stock (x) at the
option of any holder or (y) at the option of the Corporation.
(c) Any share of Class D Common Stock may, following an underwritten
initial public offering of shares of Common Stock of the Corporation, be
converted into one fully paid and non-assessable share of Class A Common Stock
(i) at the option of any holder or (ii) at the option of the Corporation.
(d) Upon receipt by the Corporation from a record holder of shares of
Class B Common Stock, Class C Common Stock or Class D Common Stock, as the case
may be, of a written request to convert its shares of Class B, Class C or Class
D Common Stock, the shares of Class B, Class C or Class D Common Stock requested
to be converted shall be converted into shares of Class A Common Stock, on the
basis of one share of Class A Common Stock for each share of Class B, Class C or
Class D Common Stock, as the case may be. The conversion of shares hereunder
shall be effective, subject to the terms of this subparagraph 5, as of the close
of business on the date of the receipt by the Corporation of such request to
convert, and the holder entitled to receive the shares issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
on such date. All shares of Class B, Class C or Class D Common Stock converted
into shares of Class A Common Stock as provided in this subparagraph 5 may be
reissued by the Corporation.
(e) Upon receipt by a record holder of shares of Class C or Class D
Common Stock from the Corporation of written notice of mandatory conversion of
its shares of Class C or Class D Common Stock, the shares of Class C or Class D
Common Stock, as the case may be, to be converted shall be converted into shares
of Class A Common Stock, on the basis of one share of Class A Common Stock for
each share of Class C or Class D Common Stock, as the case may be. The
conversion of shares hereunder shall be effective, subject to the terms of this
subparagraph 5, as of the close of business on the date of the receipt by the
record holder of Class C or Class D Common Stock, as the case may be, of such
notice from the Corporation of mandatory conversion, and the holder entitled to
receive the shares issuable upon such
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mandatory conversion shall be treated for all purposes as the record holder of
such shares on such date. For purposes of this section (e) of this subparagraph
5, such notice shall be deemed to be received by the record holder of Class C or
Class D Common Stock, as the case may be, ten (10) business days following
mailing of the notice by the Corporation. All shares of Class C or Class D
Common Stock converted into shares of Class A Common Stock as provided in this
subparagraph 5 may be reissued by the Corporation.
(f) Any conversion of shares of Class B, Class C or Class D Common
Stock shall be exercised by the surrender by the holder of the certificate or
certificates representing the shares being converted accompanied, if the
conversion is at the option of the holder, by a written notice of conversion
signed by such holder or its duly authorized agent, at the principal office of
the Corporation (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holder or holders of Class
B, Class C or Class D Common Stock, as the case may be,) at any time during its
usual business hours, and stating the name or names in which such holder wishes
the certificate or certificates for Class A Common Stock to be received upon
conversion to be issued and the address to which such certificate or
certificates shall be delivered. In case such notice shall specify a name or
names other than that of the holder, such notice shall be accompanied by payment
of any and all transfer taxes payable upon the issuance of the Class A Common
Stock upon conversion and all instruments of transfer appropriately completed to
permit such issuance. Subject to the foregoing, the issuance of certificates for
shares of Class A Common Stock upon conversion of shares of Class B, Class C or
Class D Common Stock shall be made without charge to the holder of such
converted shares for any costs incurred by the Corporation in connection with
such conversion and related issuance of shares. As soon as practicable after
such surrender of such certificate or certificates, the Corporation shall issue
and deliver at such address as is specified by such holder a certificate or
certificates for the number of shares of Class A Common Stock to which such
holder shall be entitled as aforesaid.
(g) The Corporation shall at all times reserve and keep available, out
of its authorized and unissued shares, solely for the purpose of issue upon the
conversion of shares of Class B Common Stock as herein provided, such number of
shares of Class A Common Stock as shall then be issuable upon the conversion of
all outstanding shares of Class B Common Stock. The Corporation shall, following
an underwritten initial public offering of the shares of Common Stock of the
Corporation, reserve and keep available, out of its authorized and unissued
shares, solely for the purpose of issue upon the conversion of shares of Class C
and Class D Common Stock as herein provided, such number of shares of Class A
Common Stock as shall then be issuable upon conversion of all outstanding shares
of Class C and Class D Common Stock. All shares of Class A Common Stock issuable
upon any conversion described herein shall, when issued, be duly and validly
issued and fully paid and non-assessable. The Corporation will take such action
as may be necessary to assure that all such shares of Class A Common Stock may
be so issued without violation of any applicable requirements of any national
stock exchange upon which the shares of Common Stock of the Corporation may be
listed.
(h) If the Corporation in any manner subdivides or combines the
outstanding shares of any class of Common Stock, the outstanding shares of the
other classes will be proportionately subdivided or combined.
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F. OTHER PROVISIONS
1. Except as may be otherwise provided in an agreement between the
Corporation and one or more holders of the shares of stock or of options,
warrants or other rights to purchase share of stock or other securities of the
Corporation, no holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series or
any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations or
associations, whether one or more of such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors.
2. The relative powers, preferences and rights of each series of Class B
Preferred Stock in relation to the powers, preferences and rights of each other
series of Class B Preferred Stock shall, in each case, be as fixed from time to
time by the Board of Directors in the resolution or resolutions adopted pursuant
to authority granted in Paragraph B of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of Preferred Stock or the
holders of such of the series of Class B Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Class B Preferred Stock; provided, however,
that the approval of the holders of a majority of the shares of the Preferred
Stock, voting as a separate class, shall be required for the matters described
in the first sentence of subparagraph 7(b) of Paragraph A of this Article FOURTH
and the approval of the holders of a majority of the shares of Class B Series 1
Preferred Stock, voting as a separate class, shall be required for the matters
described in subparagraph 2 of Paragraph C of this Article FOURTH; and provided,
however, that the Board of Directors may expressly provide in the resolution or
resolutions as to any series of Class B Preferred Stock adopted pursuant to
Paragraph B of this Article FOURTH that the consent of the holders of a majority
(or such greater proportion as shall be therein fixed) of the outstanding shares
of such series voting thereon shall be required for the issuance of any or all
other series of Class B Preferred Stock.
3. Subject to the provisions of subparagraph 2 of this Paragraph E, shares
of any series of Class B Preferred Stock, in an aggregate amount not exceeding
the total number of shares of Class B Preferred Stock authorized in this Amended
and Restated Certificate of Incorporation, may be issued from time to time as
the Board of Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors, and shares
of Preferred Stock, in an aggregate amount not exceeding the total number of
shares of Preferred Stock authorized in this Amended and Restated Certificate of
Incorporation, may be issued from time to time pursuant to subparagraph 2(a) of
Paragraph A of this Article FOURTH.
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4. Shares of Class A Common Stock, Class B Common Stock, Class C Common
Stock and Class D Common Stock, in an aggregate amount not exceeding the
respective total number of shares of Class A Common Stock, Class B Common Stock,
Class C Common Stock and Class D Common Stock, as applicable, authorized in this
Certificate of Amendment of the Certificate of Incorporation may be issued from
time to time as the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the Board of
Directors.
5. The authorized amount of shares of Class B Preferred Stock and Common
Stock may, without a class or series vote, be increased or decreased (but not
below the number of such shares then outstanding) from time to time by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote thereon.
FIFTH: Except as required in the By-laws of the Corporation, no
election of directors need be by written ballot.
SIXTH: The Board of Directors shall have the power to make, alter, or
repeal By-laws of the Corporation, subject to the power of the stockholders
entitled to vote thereon to alter or repeal By-laws made by the Board of
Directors.
SEVENTH: A. 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; provided, however, that subject to the immediately
following sentence, this Article SEVENTH shall not eliminate or limit the
liability of a director to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit. If the Delaware General
Corporation Law is amended after this Amended and Restated Certificate of
Incorporation becomes effective to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of the foregoing Section A by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation with respect to any acts or
omissions of such director occurring prior to such repeal or modification.
EIGHTH: The Corporation shall, to the fullest extent permitted from
time to time under the law of the State of Delaware, indemnify, and upon request
shall advance expenses to, any and all persons whom it shall have power to
indemnify under such law to the extent that such indemnification and advancement
of expenses is permitted under such law, as such law may from time to time be in
effect; provided, however, that the foregoing shall not require the Corporation
to indemnify or advance expenses to any person in connection with any action,
suit, proceeding, claim or counterclaim initiated by or on behalf of such
person. Such indemnification shall not be deemed exclusive of other rights to
which those indemnified may be entitled under any by-law, agreement, vote of
directors or stockholders or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person. To the extent permitted by applicable law, any person seeking
indemnification under this Article EIGHTH shall be deemed to have met the
standard of conduct required for such indemnification unless the contrary shall
be established. Any repeal or modification of the foregoing provisions of this
Article EIGHTH shall not adversely affect any right or protection of a person
with respect to any acts or omissions of such person occurring prior to such
repeal or modification.
NINTH: The books of the Corporation may (subject to any statutory
requirements) be kept outside the State of Delaware as may be designated by the
Board of Directors or in the By-laws of the Corporation.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Amended and Restated Certificate of
Incorporation, as such may from time to time be in effect, in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein are
granted subject to this reservation.
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