EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EARTHWATCH INCORPORATED
(Pursuant to Section 242 of the General Corporation
Law of the State of Delaware)
Earthwatch Incorporated, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), hereby certifies:
FIRST, that the Board of Directors of the Corporation duly adopted
resolutions proposing and declaring advisable the following amendments to the
Amended and Restated Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware:
"RESOLVED that the Board of Directors of the Corporation deems and declares
advisable the following amendments to the Certificate of Incorporation:
To amend the first paragraph of Article IV to read in its entirety as follows:
"The Corporation is authorized to issue a total of Two Hundred
Twenty-Four Million (224,000,000) shares, which shall consist of (i)
One Hundred and Fifty Million (150,000,000) shares of common stock,
with a par value of $0.001 per share ("Common Stock"), and (ii)
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Seventy-Four Million (74,000,000) shares of preferred stock, with a
par value of $0.001 per share."
To amend Article IV, Section A, to read in its entirety as follows:
"Designation of Series and Number of Shares. Three series of
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Preferred Stock are created hereby: (i) Twelve Million (12,000,000)
shares of 7% Cumulative Convertible Redeemable Preferred Stock Due
2009, Series A, par value $0.001 per share (the "Series A Preferred
------------------
Stock"); (ii) Twelve Million (12,000,000) shares of 7% Cumulative
-----
Convertible Redeemable Preferred Stock Due 2009, Series B, par value
$0.001 per share (the "Series B Preferred Stock"); and (iii) Fifty
------------------------
Million (50,000,000) shares of 8.5% Cumulative Convertible Redeemable
Preferred Stock Due 2009, Series C, par value $0.001 per share (the
"Series C Preferred Stock"). The shares of the Series A Preferred
------------------------
Stock, Series B Preferred Stock and Series C Preferred Stock may be
referred to collectively as the "Preferred Stock." All Shares of
---------------
Preferred Stock shall be fully paid and nonassessable."
To amend Section 1 of Article IV, Section B, to read in its entirety as
follows:
"Designation. The series of preferred stock established hereby
-----------
shall be designated the "7% Cumulative Convertible Redeemable
Preferred Stock due 2009, Series A" (and shall be referred to herein
as the "Series A Preferred Stock") and the authorized number of shares
------------------------
of Series A Preferred Stock shall be Twelve Million (12,000,000)
shares."
To amend Section 5 of Article IV, Section B, to read in its entirety as
follows:
"Mandatory Redemption and Put Right.
----------------------------------
(a) The Corporation shall redeem on March 31, 2009 (the
"Redemption Date"), from any source of funds legally available
---------------
therefor, all outstanding shares of Series A Preferred Stock at a
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redemption price per share equal to the then Liquidation Preference
per share (the "Mandatory Redemption Price"), plus an amount in cash
--------------------------
equal to all accumulated and unpaid dividends per share (including an
amount in cash equal to a prorated dividend for any partial Dividend
Period). The Corporation will not be required to make sinking fund
payments with respect to the Series A Preferred Stock. The Series A
Preferred Stock shall not be redeemable at the option of the
Corporation prior to the Redemption Date.
(b) If and to the extent that the Corporation or the Junior
Collateral Trustee receives from the Collateral Trustee any Available
Proceeds, then the Corporation shall (or shall cause the Junior
Collateral Trustee to) promptly mail a written notice to each Holder
of shares of Series A Preferred Stock, at the address for such Holder
shown on the stock books of the Corporation, stating the amount of
such Available Proceeds received, that such Holder's put rights under
this subsection (b) have become exercisable, and the Put Right
Termination Date. Each such Holder shall thereafter have the right on
or prior to the Put Right Termination Date to elect to sell to the
Corporation, and the Corporation shall be obligated to purchase, from
any source of funds legally available therefor, up to all of the
shares of Series A Preferred Stock held by such Holder, subject to the
penultimate sentence of this paragraph. The date of such purchase
shall be the next Business Day after the Put Right Termination Date.
The purchase price for all of such shares shall be equal to the
aggregate liquidation preference thereof, plus accrued and unpaid
dividends thereon to the date of purchase. If the aggregate purchase
price for all shares of Series A Preferred Stock and Series B
Preferred stock to be purchased by the Corporation pursuant to this
Section 5 and pursuant to Section 5 of Article IV, Section C, would
otherwise be greater than the Available Proceeds, then the number of
shares of Series A Preferred Stock to be so purchased shall, pro rata
(based on the liquidation preference) with the amount of shares of
Series B Preferred Stock to be purchased pursuant to Section 5 of
Article IV, Section C, be reduced so that the aggregate purchase price
of the shares of Series A Preferred Stock and Series B Preferred Stock
so purchased does not exceed the Available Proceeds. Notwithstanding
the foregoing, this subsection (b) shall not become effective unless
and until each of the Transactions has been consummated or effectively
waived.
(c) For purposes of this Section 5 and Section 5 of Article IV,
Section C, the following terms shall have the meanings set forth
below:
"13% Notes" means the Corporation's 13% Senior Discount
---------
Notes due 2007.
"Available Proceeds" means any and all proceeds received by
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the Corporation or the Junior Collateral Trustee, as the case may
be, from the Collateral Trustee under the Launch Insurance,
resulting from a casualty (full or partial), whether on satellite
launch or thereafter, remaining after the Company has repurchased
all 13% Notes required to be repurchased and repaid any Vendor
Financing then required to be repaid.
"Collateral Trustee" means the trustee for the 13% Notes or
------------------
any successor or substitute collateral trustee for the collateral
with respect to the 13% Notes.
"Junior Collateral Trustee" means The Bank of New York, or
-------------------------
any successor or substitute collateral trustee under the Junior
Collateral Pledge and Security Agreement to be entered into
between the Corporation and The Bank of New York, as collateral
trustee.
"Launch Insurance" means launch and in-orbit operations
----------------
insurance with respect to the Corporation's QuickBird 2
Satellite.
"Put Right Termination Date" means 5:00 p.m., Eastern
--------------------------
Standard Time, on the 60th calendar day after the mailing of the
required notices under subsection (b) above or subsection 5(b) of
Article IV, Section C, as the case may be, to Holders of shares
of Series A and Series B Preferred Stock.
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"QuickBird 2 Satellite" means the QuickBird 2 spacecraft
---------------------
manufactured pursuant to the contract SE.1M.PRJ.0004.A, dated
June 1998, as amended from time to time, between Ball Aerospace &
Technologies Corp. and the Corporation, for QuickBird satellites
1 and 2.
"Transactions" has the meaning ascribed to such term in the
------------
Recapitalization Agreement dated April 2, 2001, by and among the
Corporation and each of the parties set forth in Schedule 1
thereto, as it may be amended from time to time.
"Vendor Financing" means the financing to be provided by
----------------
Ball Technologies & Aerospace Corp. to the Corporation in a
principal amount not greater than $9,000,000, plus interest
thereon, for the construction and launch of the QuickBird 2
Satellite.
To amend Section 6(a) of Article IV, Section B, to read in its entirety as
follows:
"Optional Conversion. Except as set forth in Section 6(c) below,
-------------------
upon and following the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 and until
the fourth anniversary of the earlier to occur of (i) and (ii), the
Holder of each share of Series A Preferred Stock shall have the right,
at the option of such Holder, to convert such shares into shares of
Common Stock, on and subject to the terms and conditions hereinafter
set forth. Subject to the provisions for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall be convertible
into such number (calculated as to each conversion to the nearest
1/100th of a share) of fully paid and nonassessable shares of Common
Stock as is obtained by dividing (i) the sum of the then Liquidation
Preference plus the amount of accumulated and unpaid dividends
thereon, including the amount of any Default Dividends and any
dividends accumulated thereon by (ii) the Conversion Price, both as in
effect at the date any share or shares of Series A Preferred Stock are
surrendered for conversion. The Series A Preferred Stock shall not be
convertible prior to the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 or after the
fourth anniversary of the earlier to occur of (i) and (ii)."
To amend Section 6(c) of Article IV, Section B, to read in its entirety as
follows:
"Automatic Conversion. Upon and following the earlier to occur of
--------------------
(i) receipt by the Corporation of the FCC Approval and (ii) October
31, 1999 and until the fourth anniversary of the earlier to occur of
(i) and (ii), upon the earlier to occur of (1) an Initial Public
Offering, the public offering price of which is at least $35,000,000
in the aggregate and (2) the listing of the Common Stock on the New
York Stock Exchange, Inc. or the American Stock Exchange, Inc, or the
trading of the Common Stock on the Nasdaq National Market ("NASDAQ"),
------
if the Market Price (as hereinafter defined) of the Common Stock shall
on any day be at a level such that, if all the outstanding shares of
Series A Preferred Stock were converted into the number of shares of
Common Stock into which such Series A Preferred Stock is convertible
pursuant to this Section 6, and such shares of Common Stock were then
sold at the Market Price, the proceeds of such sale would exceed by at
least 20% the amount determined by multiplying the number of
outstanding shares of Series A Preferred Stock by the Conversion Price
(which amount shall be subject to equitable adjustment wherever there
shall occur a stock split, combination, reclassification or other
similar event involving the Series A Preferred Stock), then all
outstanding shares of Series A Preferred Stock shall be converted
automatically into the number of shares of Common Stock into which
such shares are convertible pursuant to this Section 6 as of
immediately prior to the occurrence of such event, without further
action by the Holders and whether or not the certificates representing
such shares are surrendered to the Corporation or its Transfer Agent
for the Common Stock, provided that all declared and unpaid dividends
on such shares of Series A Preferred Stock shall first have been paid
in full. The "Market Price" of the Common Stock shall be the average
------------
of the reported last sales prices on an exchange or on NASDAQ for the
Common Stock on each of the twenty (20) preceding Trading Days on
which a reported sale of the Common Stock took place. The Series A
Preferred Stock shall not be automatically converted pursuant to this
Section 6(c) prior to the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 or after the
fourth anniversary of the earlier to occur of (i) and (ii)."
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To amend Section 7(d)(iii) of Article IV, Section B, to read in its entirety
as follows:
"except for the High Yield Financing outstanding as of April 2,
2001 and except for the Vendor Financing, the incurrence of any
indebtedness for borrowed money, the making of any guarantee of any
such indebtedness, the issuance or sale of any debt securities or the
prepayment or refinancing of any indebtedness for borrowing money, in
each case in excess of $10 million in the aggregate;"
To amend Section 8 of Article IV, Section B, to read in its entirety as
follows:
"Proxies, Voting Agreements, etc. Except for the Stockholders'
-------------------------------
Agreement and for proxy solicitations by the Board of Directors of the
Corporation, no Holder shall deposit into a voting trust or grant any
proxies or powers of attorney or enter into a voting agreement with
respect to any shares of Series A Preferred Stock."
To amend Section 1 of Article IV, Section C, to read in its entirety as
follows:
"Designation. The series of preferred stock established hereby
-----------
shall be designated the "7% Cumulative Convertible Redeemable
Preferred Stock due 2009, Series B" (and shall be referred to herein
as the "Series B Preferred Stock") and the authorized number of shares
------------------------
of Series B Preferred Stock shall be Twelve Million (12,000,000)
shares."
To amend Section 5 of Article IV, Section C, to read in its entirety as
follows:
"Mandatory Redemption and Put Right.
----------------------------------
(a) The Corporation shall redeem on March 31, 2009 (the
"Redemption Date"), from any source of funds legally available
---------------
therefor, all outstanding shares of Series B Preferred Stock at a
redemption price per share equal to the then Liquidation Preference
per share (the "Mandatory Redemption Price"), plus an amount in cash
--------------------------
equal to all accumulated and unpaid dividends per share (including an
amount in cash equal to a prorated dividend for any partial Dividend
Period). The Corporation will not be required to make sinking fund
payments with respect to the Series B Preferred Stock. The Series B
Preferred Stock shall not be redeemable at the option of the
Corporation prior to the Redemption Date.
(b) If and to the extent that the Corporation or the Junior
Collateral Trustee receives from the Collateral Trustee any Available
Proceeds, then the Corporation shall (or shall cause the Junior
Collateral Trustee to) promptly mail a written notice to each Holder
of Series B Preferred Stock, at the address for such Holder shown on
the stock books of the Corporation, stating the amount of such
Available Proceeds received, that such Holder's put rights under this
subsection (b) have become exercisable, and the Put Right Termination
Date. Each such Holder shall thereafter have the right on or prior to
the Put Right Termination Date to elect to sell to the Corporation,
and the Corporation shall be obligated to purchase, from any source of
funds legally available therefor, up to all of the shares of Series B
Preferred Stock held by such Holder, subject to the penultimate
sentence of this paragraph. The date of such purchase shall be the
next Business Day after the Put Right Termination Date. The purchase
price for all of such shares shall be equal to the aggregate
liquidation preference thereof, plus accrued and unpaid dividends
thereon to the date of purchase. If the aggregate purchase price for
all shares of Series B Preferred Stock and Series A Preferred stock to
be purchased by the Corporation pursuant to this Section 5 and
pursuant to Section 5 of Article IV, Section B, would otherwise be
greater than the Available Proceeds, then the number of shares of
Series B Preferred Stock to be so purchased shall, pro rata (based on
the liquidation preference) with the amount of shares of Series A
Preferred Stock to be purchased pursuant to Section 5 of Article IV,
Section B, be reduced so that the aggregate purchase price of the
shares of Series B Preferred Stock and Series A Preferred Stock so
purchased does not exceed the Available Proceeds. Notwithstanding
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the foregoing, this subsection (b) shall not become effective unless
and until each of the Transactions has been consummated or effectively
waived.
(c) For purposes of this Section 5, terms defined in Section 5 of
Article IV, Section B, shall have the respective meanings set forth
therein."
To amend Section 6(a) of Article IV, Section C, to read in its entirety as
follows:
"Optional Conversion. Except as set forth in Section 6(c) below,
-------------------
upon and following the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 and until
the fourth anniversary of the earlier to occur of (i) and (ii), the
Holder of each share of Series B Preferred Stock shall have the right,
at the option of such Holder, to convert such shares into shares of
Common Stock, on and subject to the terms and conditions hereinafter
set forth. Subject to the provisions for adjustment hereinafter set
forth, each share of Series B Preferred Stock shall be convertible
into such number (calculated as to each conversion to the nearest
1/100th of a share) of fully paid and nonassessable shares of Common
Stock as is obtained by dividing (i) the sum of the then Liquidation
Preference plus the amount of accumulated and unpaid dividends
thereon, including the amount of any Default Dividends and any
dividends accumulated thereon by (ii) the Conversion Price, both as in
effect at the date any share or shares of Series B Preferred Stock are
surrendered for conversion. The Series B Preferred Stock shall not be
convertible prior to the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 or after the
fourth anniversary of the earlier to occur of (i) and (ii)."
To amend Section 6(c) of Article IV, Section C, to read in its entirety as
follows:
"Automatic Conversion. Upon and following the earlier to occur of
--------------------
(i) receipt by the Corporation of the FCC Approval and (ii) October
31, 1999 and until the fourth anniversary of the earlier to occur of
(i) and (ii), upon the earlier to occur of (1) an Initial Public
Offering, the public offering price of which is at least $35,000,000
in the aggregate and (2) the listing of the Common Stock on the New
York Stock Exchange, Inc. or the American Stock Exchange, Inc. or the
trading of the Common Stock on the Nasdaq National Market ("NASDAQ"),
------
if the Market Price (as hereinafter defined) of the Common Stock shall
on any day be at a level such that, if all the outstanding shares of
Series B Preferred Stock were converted into the number of shares of
Common Stock into which such Series B Preferred Stock is convertible
pursuant to this Section 6, and such shares of Common Stock were then
sold at the Market Price, the proceeds of such sale would exceed by at
least 20% the amount determined by multiplying the number of
outstanding shares of Series B Preferred Stock by the Conversion Price
(which amount shall be subject to equitable adjustment wherever there
shall occur a stock split, combination, reclassification or other
similar event involving the Series B Preferred Stock), then all
outstanding shares of Series B Preferred Stock shall be converted
automatically into the number of shares of Common Stock into which
such shares are convertible pursuant to this Section 6 as of
immediately prior to the occurrence of such event, without further
action by the Holders and whether or not the certificates representing
such shares are surrendered to the Corporation or its Transfer Agent
for the Common Stock, provided that all declared and unpaid dividends
on such shares of Series B Preferred Stock shall first have been paid
in full. The "Market Price" of the Common Stock shall be the average
------------
of the reported last sales prices on an exchange or on NASDAQ for the
Common Stock on each of the twenty (20) preceding Trading Days an
which a reported sale of the Common Stock took place. The Series B
Preferred Stock shall not be automatically converted pursuant to this
Section 6(c) prior to the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 or after the
fourth anniversary of the earlier to occur of (i) and (ii)."
To amend Section 7(d)(iii) of Article IV, Section C, to read in its entirety
as follows:
"except for the High Yield Financing outstanding as of April 2,
2001 and except for the Vendor Financing, the incurrence of any
indebtedness for borrowed money, the making of any guarantee of any
such indebtedness, the issuance or sale of any debt securities or the
prepayment or
5
refinancing of any indebtedness for borrowing money, in each case in
excess of $10 million in the aggregate;"
To amend Section 8 of Article IV, Section C, to read in its entirety as
follows:
"Proxies, Voting Agreements, etc. Except for the Stockholders'
-------------------------------
Agreement and for proxy solicitations by the Board of Directors of the
Corporation, no Holder shall deposit into a voting trust or grant any
proxies or powers of attorney or enter into a voting agreement with
respect to any shares of Series B Preferred Stock."
To amend Section 1 of Article IV, Section D, to read in its entirety as
follows:
"Designation. The series of preferred stock established hereby
-----------
shall be designated the "8.5% Cumulative Convertible Redeemable
Preferred Stock due 2009, Series C" (and shall be referred to herein
as the "Series C Preferred Stock") and the authorized number of shares
------------------------
of Series C Preferred Stock shall be Fifty Million (50,000,000)
shares."
To amend Section 6(a) of Article IV, Section D, to read in its entirety as
follows:
"Optional Conversion. Except as set forth in Section 6(c) below,
-------------------
upon and following the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 and until
the fourth anniversary of the earlier to occur of (i) and (ii), the
Holder of each share of Series C Preferred Stock shall have the right,
at the option of such Holder, to convert such shares into shares of
Common Stock, on and subject to the terms and conditions hereinafter
set forth. Subject to the provisions for adjustment hereinafter set
forth, each share of Series C Preferred Stock Shall be convertible
into such number (calculated as to each conversion to the nearest
1/100th of a share) of fully paid and nonassessable shares of Common
Stock as is obtained by dividing (i) the sum of the then Liquidation
Preference plus the amount of accumulated and unpaid dividends
thereon, including the amount of any Default Dividends and any
dividends accumulated thereon by (ii) the Conversion Price, both as in
effect at the date any share or shares of Series C Preferred Stock are
surrendered for conversion. The Series C Preferred Stock shall not be
convertible prior to the earlier to occur of (i) receipt by the
Corporation of the FCC Approval and (ii) October 31, 1999 or after the
fourth anniversary of the earlier to occur of (i) and (ii)."
To amend Section 6(c) of Article IV, Section D, to read in its entirety as
follows:
"Automatic Conversion. Upon and following the earlier to occur of
--------------------
(i) receipt by the Corporation of the FCC Approval and (ii) October
31, 1999 and until the fourth anniversary of the earlier to occur of
(i) and (ii), upon the earlier to occur of (1) an Initial Public
Offering, the public offering price of which is at least $35,000,000
in the aggregate and (2) the listing of the Common Stock on the New
York Stock Exchange, Inc. or the American Stock Exchange, Inc. or the
trading of the Common Stock on the Nasdaq National Market ("NASDAQ"),
------
if the Market Price (as hereinafter defined) of the Common Stock shall
on any day be at a level such that, if all the outstanding shares of
Series C Preferred Stock were converted into the number of shares of
Common Stock into which such Series C Preferred Stock is convertible
pursuant to this Section 6, and such shares of Common Stock were then
sold at the Market Price, the proceeds of such sale would exceed by at
least 20% the amount determined by multiplying the number of
outstanding shares of Series C Preferred Stock by the Conversion Price
(which amount shall be subject to equitable adjustment wherever there
shall occur a stock split, combination, reclassification or other
similar event involving the Series C Preferred Stock), then all
outstanding shares of Series C Preferred Stock shall be converted
automatically into the number of shares of Common Stock into which
such shares are convertible pursuant to this Section 6 as of
immediately prior to the occurrence of such event, without further
action by the Holders and whether or not the certificates representing
such shares are surrendered to the Corporation or its Transfer Agent
for the Common Stock, provided that all declared and unpaid dividends
on such shares of Series C Preferred Stock shall first have been paid
in full. The "Market Price" of the Common Stock shall be the average
------------
of the reported last sales prices on an exchange or
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on NASDAQ for the Common Stock on each of the twenty (20) preceding
Trading Days on which a reported sale of the Common Stock took place.
The Series C Preferred Stock shall not be automatically converted
pursuant to this Section 6(c) prior to the earlier to occur of (i)
receipt by the Corporation of the FCC Approval and (ii) October 31,
1999 or after the fourth anniversary of the earlier to occur of (i)
and (ii)."
To amend Section 9 of Article IV, Section D, to read in its entirety as
follows:
"Proxies, Voting Agreements, etc. Except for the Stockholders'
-------------------------------
Agreement and for proxy solicitations by the Board of Directors of the
Corporation, no Holder shall deposit into a voting trust or grant any
proxies or powers of attorney or enter into a voting agreement with
respect to any shares of Series C Preferred Stock."
SECOND, that in lieu of a meeting and vote of stockholders, the
stockholders of the Corporation having not less than the minimum number of votes
necessary to authorize such action have given written consent to, and duly
adopted, said amendments in accordance with the provisions of Sections 228(a)
and 242 of the General Corporation Law of the State of Delaware, and written
notices to any non-consenting stockholders have been given in accordance with
Section 228(e) of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 14th
day of June, 2001.
EARTHWATCH INCORPORATED
By: /s/ Henry E. Dubois
--------------------
Henry E. Dubois
Chief Financial Officer,
Chief Operating Officer and
Executive Vice President
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