Exhibit 3.3
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
OUTDOOR COMMUNICATIONS, INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
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Outdoor Communications, Inc. (hereinafter called the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
At a meeting of the Board of Directors of the Corporation, resolutions were
duly adopted, pursuant to Sections 141 and 242 of the General Corporation Law of
the State of Delaware, setting forth an amendment to the Amended and Restated
Certificate of Incorporation of the Corporation and declaring said amendment to
be advisable. The stockholders of the Corporation duly approved said proposed
amendment by written consent in accordance with Sections 228 and 242 of the
General Corporation Law of the State of Delaware. The resolutions setting forth
the amendment is as follows:
RESOLVED, that, effective as of the date of this Amendment, the first
paragraph of the FOURTH Article of the Amended and Restated Certificate of
Incorporation by deleting the period at the end of such paragraph and
substituting therefor the following:
"and (c) 5,000,000 shares of Preferred Stock, par value $.01 per share
("Preferred Stock"), of which 300,000 shares shall be designated Series A
Preferred Stock, par value $.01 per share ("Series A Preferred Stock"), and
4,700,000 shares shall be undesignated preferred stock, $0.01 par value per
share ("Undesignated Preferred Stock")
FURTHER RESOLVED, that, effective as of the date of this Amendment, the FOURTH
Article of the Amended and Restated Certificate of Incorporation be amended to
add the following section:
"G. Undesignated Preferred Stock.
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1. Issuance. Subject to any limitations prescribed by law or this
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Amended and Restated Certificate, the Board of Directors of the Corporation or
an authorized committee thereof is expressly authorized to provide for the
issuance of the shares of Undesignated Preferred Stock in one or more classes or
one or more series of stock within any class, and by filing a certificate
pursuant to applicable law of the State of Delaware, to establish or change from
time to time the number of shares to be included in each such class or series,
and to fix the designation, voting powers, preferences, qualifications,
privileges and rights of the share of each such class or series and any
qualifications, limitations and restrictions thereof. Any action of the Board of
Directors
or an authorized committee thereof under this paragraph G shall require an
affirmative vote of a majority of the Directors then in office or a majority of
the members of such committee. The Board of Directors or an authorized
committee thereof shall have the right to determine or fix one or more of the
following with respect to each class or series of such Undesignated Preferred
Stock to the extent permitted by law:
(a) The distinctive class or serial designation and the number of shares
constituting such class or series;
(b) The dividend rates or the amount of dividends to be paid on the shares
of such class or series, whether dividends shall be cumulative and, if so, from
which date or dates, the payment date or dates for dividends, and the
participating and other rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the share of such class
or series;
(d) Whether the shares of such class or series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
(e) The amount or amounts payable upon the shares of such class or series
and any preferences applicable thereto in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such class or series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and the
manner of its application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;
(g) Whether the shares of such class or series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same or any other class or classes of stock of the Corporation and, if so
convertible or exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at which such conversion
or exchange may be made, and any other terms and conditions of such conversion
or exchange;
(h) The price or other consideration for which the shares of such class or
series shall be issued;
(i) Whether the shares of such class or series which are redeemed or
converted shall have the status of authorized but unissued shares of Preferred
Stock and
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whether such shares may be reissued as shares of the same or any other class or
series of stock; and
(j) Such other powers, preferences, rights, qualifications, limitations and
restrictions thereof as the Board of Directors of the Corporation or an
authorized committee thereof may deem advisable.
Subject to the authority of the Board of Directors as set forth in clause (i)
above, any shares of Undesignated Preferred Stock shall, upon reacquisition
thereof by the Corporation, be restored to the status of authorized but unissued
Undesignated Preferred Stock under this paragraph G.
H. Series A Preferred Stock.
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1. Liquidation, Dissolution or Winding Up.
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(a) The Series A Preferred Stock shall rank prior to the Common Stock in the
event of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary (each, a "Liquidation Event"). In the event of a
Liquidation Event, each holder of outstanding shares of Series A Preferred Stock
shall be entitled to be paid out of the assets of the Corporation available for
distribution to stockholders, whether such assets are capital, surplus, or
earnings an amount in cash equal to the Liquidation Amount (as defined below),
before any payment shall be made to the holders of Common Stock or of any other
stock ranking on liquidation junior to the Series A Preferred Stock; provided,
however, that if, upon any liquidation, dissolution or winding up of the
Corporation, the amounts payable with respect to the Series A Preferred Stock
and any other stock ranking as to any such distribution on a parity with the
Series A Preferred Stock are not paid in full, the holders of the Series A
Preferred Stock and such other stock shall share ratably in any distribution of
assets in proportion to the full respective preferential amounts to which they
are entitled.
(b) A consolidation or merger of the Corporation (except (i) into or with
the Corporation or a wholly-owned subsidiary of the Corporation with requisite
shareholder approval or (ii) a merger in which the beneficial owners of the
Corporation's capital stock immediately prior to such transaction hold no less
than fifty-one percent (51%) of the voting power in the resulting entity) or a
sale of all or substantially all of the assets of the Corporation or any
subsidiary thereof shall be regarded as a liquidation, dissolution or winding up
of the affairs of the Corporation within the meaning of this paragraph 1.
(c) "Liquidation Amount" shall mean at any time the sum of:
(i) $100.00 per share (subject to equitable adjustment whenever there
shall occur a stock dividend, distribution, combination of shares,
reclassification
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or other similar event (each, an "Adjustment Event") with respect to the Series
A Preferred Stock), plus
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(ii) all accrued dividends to which the holders of outstanding shares
of Series A Preferred Stock are entitled pursuant to paragraph 2 hereof.
(d) Whenever the distribution provided for in this paragraph 1 shall be
payable in property other than cash, the value of such distribution shall be the
fair market value of such property as determined in good faith by the Board of
Directors of the Corporation.
2. Accumulation and Payment of Dividends.
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(a) Holders of record of shares of Series A Preferred Stock, or fractions
thereof, in preference to the holders of any and all other classes of capital
stock of the Corporation, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available therefor on the date of
payment, cumulative cash dividends at the rate per annum of 10% of the
Liquidation Amount per share of Series A Preferred Stock per annum (such amount,
together with the amount set forth in the last sentence of this paragraph, the
"Series A Preferred Dividends"). Series A Preferred Dividends shall begin to
accrue and be cumulative (whether or not the Corporation shall have earnings or
surplus at the time) on a daily basis from July 1, 1997 and shall be payable
quarterly in arrears as of October 1, January 1, March 1 and July 1 in each year
commencing on October 1, 1997, with payment to be made on the next succeeding
business day of the Corporation, provided that such dividend shall accrue for
later payment if not declared and paid as of any such date, and such dividends
in any case shall be computed daily on the basis of a 365-day year counting the
actual numbers of days elapsed. Series A Preferred Dividends paid in cash in an
amount less than the total amount of such dividends at the time accrued and
payable on all outstanding shares of Series A Preferred Stock, including
fractions, shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The amount of accrued dividends on any share of
Series A Preferred Stock, or fraction thereof, at any date, shall be the amount
of any dividends payable thereon to and including such date, whether or not
declared, which have not been paid in cash.
(b) So long as any shares of the Series A Preferred Stock shall be
outstanding, the Corporation shall not declare or pay or set apart for payment
any dividends or make any other distributions on, or make any payment on account
of the purchase, redemption, exchange or other retirement of any other class of
stock or series thereof of the Corporation unless each of the holders of the
Series A Preferred Stock shall have been paid all accrued Series A Preferred
Dividends in full in cash with respect to each share of Series A Preferred
Stock.
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3. Voting. Except as set forth herein or as otherwise required by
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law, each outstanding share of Series A Preferred Stock shall not be entitled to
vote on any matter on which the stockholders of the Corporation shall be
entitled to vote, and shares of Series A Preferred Stock shall not be included
in determining the number of shares voting or entitled to vote on any such
matters; provided that notwithstanding the foregoing, holders of shares of the
Series A Preferred Stock shall be entitled to vote as a separate class on any
amendment or modification of any provision of this Amended and Restated
Certificate of Incorporation that adversely affects the powers, preferences or
special rights of holders of the Series A Preferred Stock.
4. No Reissuance of Series A Preferred Stock. No share or shares of
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Series A Preferred Stock acquired by the Corporation by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be canceled.
5. Notices of Record Date. In the event (i) the Corporation establishes
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a record date to determine the holders of any class of securities who are
entitled to receive any dividend or other distribution, or (ii) there occurs any
capital reorganization of the Corporation, any reclassification or
recapitalization of the capital stock of the Corporation, any merger or
consolidation of the Corporation, and any transfer of all or substantially all
of the assets of the Corporation to any other Corporation, or any other entity
or person, or any voluntary or involuntary dissolution, liquidation or winding
up of the Corporation, the Corporation shall mail to each holder of Series A
Preferred Stock at least twenty (20) days prior to the record date specified
therein, a notice specifying (a) the date of such record date for the purpose of
such dividend or distribution and a description of such dividend or
distribution, (b) the date on which any such reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or winding up is
expected to become effective, and (c) the time, if any, that is to be fixed, as
to when the holders of record of Common Stock (or other securities) shall be
entitled to exchange their shares of Common Stock (or other securities) for
securities or other property deliverable upon such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation or
winding up."
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IN WITNESS WHEREOF, said Outdoor Communications, Inc. has caused this
Certificate of Amendment to be signed by David F. Dietz, its Secretary,
this __th day of August, 1997.
OUTDOOR COMMUNICATIONS, INC.
By:
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David F. Dietz
Secretary
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