EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
LORAL SPACE & COMMUNICATIONS INC.
Loral Space & Communications Inc. (the "Corporation"), a corporation
organized and existing under and by virtue of the laws of the State of Delaware,
DOES HEREBY CERTIFY that:
1. The name of the Corporation is Loral Space & Communications Inc.
2. The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware under the name of Loral
Space & Communications Inc. on June 24, 2005.
3. The Corporation has not received any payment for any of its stock.
4. Pursuant to Section 241 and 245 of the General Corporation Law of the
State of Delaware, this Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of the Corporation.
5. This Restated Certificate of Incorporation was duly authorized and
adopted in accordance with the applicable provisions of Sections 241 and 245 of
the General Corporation Law of the State of Delaware.
6. The text of the Restated Certificate of Incorporation is hereby amended
and restated to read in its entirety as follows:
RESTATED CERTIFICATE OF INCORPORATION
OF
LORAL SPACE & COMMUNICATIONS INC.
* * * * * * * *
ARTICLE I.
The name of the corporation (the "Corporation") is Loral Space &
Communications Inc.
ARTICLE II.
The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801. The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
ARTICLE III.
Except as provided in Paragraph (d) of Article V of this Restated
Certificate of Incorporation, the nature of the business or purposes to be
conducted or promoted by the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
ARTICLE IV.
The total authorized capital stock of the Corporation shall be FIFTY
MILLION (50,000,000) shares consisting of (i) FORTY MILLION (40,000,000) shares
of Common Stock, $0.01 par value per share ("Common Stock"), and (ii) TEN
MILLION (10,000,000) shares of Preferred Stock, $0.01 par value per share
("Preferred Stock").
(a) Common Stock.
(i) Dividends. Subject to the preferences and other rights of the
Preferred Stock, if any, the holders of Common Stock shall be entitled to
receive dividends when and as declared by the Board of Directors out of
funds legally available therefor. Holders of shares of Common Stock shall
be entitled to share equally, share for share, in such dividends.
(ii) Liquidation. Subject to the rights, powers and preferences of
any outstanding Preferred Stock, in the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, voluntary or
involuntary, the assets of the Corporation available to stockholders shall
be distributed equally per share to the holders of Common Stock.
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(iii) Voting. Except as otherwise provided herein or by law, each
holder of Common Stock shall be entitled to one vote in respect of each
share of Common Stock held of record on all matters submitted to a vote of
stockholders.
(b) Preferred Stock. The Preferred Stock may be issued from time to
time in one or more series, each of which series shall have such distinctive
designation or title and such number of shares as shall be fixed by the Board of
Directors prior to the issuance of any shares thereof. Each such series of
Preferred Stock shall have such voting powers, full or limited, or no voting
powers, and such preferences and relative, participating, optional or other
special rights and such qualifications, limitations or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions providing for the
issuance of such series of Preferred Stock as may be adopted from time to time
by the Board of Directors prior to the issuance of any shares thereof pursuant
to the authority hereby expressly vested in it. The Board of Directors is
further authorized to increase or decrease (but not below the number of shares
outstanding) the number of shares of any series of Preferred Stock subsequent to
the issuance of shares of that series, except as otherwise provided in the
resolution or resolutions of the Board of Directors providing for the issuance
of such series. In case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume the status which
they had prior to the adoption of the resolution originally fixing the number of
shares of such series. Except as provided in the resolution or resolutions of
the Board of Directors or in any Certificate of Designation or similar
certificate creating any series of Preferred Stock or as otherwise provided
herein, the shares of Common Stock shall have the exclusive right to vote for
the election and removal of directors and for all other purposes.
(c) The Corporation shall not issue non-voting equity securities
within the meaning of section 1123 of chapter 11 of title 11 of the United
States Code.
ARTICLE V.
(a) In furtherance and not in limitation of the powers conferred by
statute, the Bylaws of the Corporation (the "Bylaws") may be made, altered,
amended or repealed by the Board of Directors.
(b) In addition to any affirmative vote of the holders of any
particular class or series of the capital stock of the Corporation required by
law or by this Restated Certificate of Incorporation, the affirmative vote of
the holders of not less than eighty percent (80%) in voting power of the
outstanding shares of the Corporation then entitled to vote upon the election of
directors generally, voting together as a single class, shall be required for
(i) the alteration, amendment, or repeal of (x) Paragraphs (b) or (d) of Article
V of this Restated Certificate of Incorporation or (y) Article VII of this
Restated Certificate of Incorporation, or (ii) the alteration, amendment or
repeal of the By-laws of the Corporation by the stockholders of the Corporation.
(c) Meetings of stockholders may be held within or without the State
of Delaware, as the Bylaws may provide. Voting at meetings of stockholders need
not be
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by written ballot. The books of the Corporation may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors or in
the Bylaws. Except as otherwise provided for or fixed pursuant to the provisions
of Paragraph (b) of Article IV of this Restated Certificate of Incorporation
relating to the rights of holders of any series of Preferred Stock, no action
that is required or permitted to be taken by the stockholders of the Corporation
at any annual or special meeting of stockholders may be effected by written
consent of stockholders in lieu of a meeting of stockholders.
(d) For so long as the Corporation owns any shares of Space
Systems/Loral, Inc., a Delaware corporation, directly or indirectly, the
Corporation shall not cause such shares to be voted in favor of any amendment to
or modification of Section 3 of the Restated Certificate of Incorporation of
Space Systems/Loral, Inc.
ARTICLE VI.
(a) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Restated
Certificate of Incorporation or the Bylaws, the Board of Directors is hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation. Subject to Paragraph (f) below, the number
of directors of the Corporation shall be fixed from time to time by the Board of
Directors, provided, however, that such number shall be no fewer than three (3)
and no more than fifteen (15).
(b) The Corporation is to have perpetual existence.
(c) The Board of Directors (other than those directors elected
solely by the holders of any series of Preferred Stock provided for or fixed
pursuant to the provisions of Paragraph (b) of Article IV hereof, if any (the
"Preferred Stock Directors")) shall be divided into three classes to be
designated as Class I, Class II and Class III. The number of such directorships
shall be apportioned among the classes so as to maintain the classes as nearly
equal in number as possible. The Class I directors will initially consist of (a)
Mr. Bernard L. Schwartz, (b) Mr. Arthur L. Simon and (c) Mr. John D. Harkey, Jr.
The Class II directors will initially consist of (a) Mr. Michael B. Targoff, (b)
Mr. Robert B. Hodes and (c) Mr. Dean Olmstead. The Class III directors will
initially consist of (a) Mr. Mark H. Rachesky, (b) Mr. Hal Goldstein, and (c)
Mr. Sai S. Devabhaktuni. These directors, other than any Preferred Stock
Directors, will be deemed to have been elected by the shareholders of the
Corporation on the date of the filing of this Restated Certificate of
Incorporation. The terms of office of the directors initially comprising such
classes of directors shall expire at the times of the annual meetings of the
stockholders as follows: Class I on the first annual meeting of stockholders
following the effectiveness of this Restated Certificate of Incorporation by
filing this Restated Certificate of Incorporation with the Secretary of State of
the State of Delaware (the "Effective Time"), Class II on the second annual
meeting following the Effective Time and Class III on the third annual meeting
following the Effective Time, or thereafter in each case when their respective
successors are elected and qualified. At subsequent annual elections, other than
with
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respect to the Preferred Stock Directors, the directors chosen to succeed those
whose terms are expiring shall be identified as being of the same class as the
directors whom they succeed, and shall be elected for a term ending at the time
of the third succeeding annual meeting of stockholders, or thereafter in each
case when their respective successors are elected and qualified.
(d) If the number of directors that constitutes the whole Board of
Directors is changed in accordance with this Article VI, the majority of the
Board of Directors that adopts the change shall also fix and determine the
number of directors comprising each class; provided, however, that any increase
or decrease in the number of directors shall be apportioned among the classes as
equally as possible. No decrease in the number of directors constituting the
entire Board of Directors shall have the effect of shortening the term of any
incumbent director.
(e) A director, other than a Preferred Stock Director, may be
removed from office only for cause and only by the vote of at least two-thirds
in voting power of the outstanding stock entitled to vote in an election of
directors. Subject to the rights of the holders of shares of any series of
Preferred Stock then outstanding, any vacancy on the Board of Directors, however
resulting, and any newly created directorship resulting from any increase in the
authorized number of directors elected by all of the stockholders having the
right to vote as a single class, shall be filled only by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy shall hold office for a term
that shall coincide with the term of the class to which such director shall have
been elected.
(f) During any period when the holders of any series of Preferred
Stock have the right to elect additional directors as provided for or fixed
pursuant to the provisions of Paragraph (b) of Article IV hereof, then upon
commencement and for the duration of the period during which such right
continues: (i) the then otherwise total authorized number of directors of the
Corporation shall automatically be increased by such specified number of
directors, and the holders of such Preferred Stock shall be entitled to elect
the additional director or directors so provided for or fixed pursuant to said
provisions, and (ii) each such additional director shall serve until such
director's successor shall have been duly elected and qualified, or until such
director's right to hold such office terminates pursuant to said provisions,
whichever occurs earlier, subject to his or her earlier death, disqualification,
resignation or removal. Except as otherwise provided by the Board of Directors
in the resolution or resolutions establishing such series, whenever the holders
of any series of Preferred Stock having such right to elect additional directors
are divested of such right pursuant to the provisions of such stock, the terms
of office of all such additional directors elected by the holders of such stock,
or elected to fill any vacancies resulting from the death, resignation,
disqualification or removal of such additional directors, shall forthwith
terminate and the total authorized number of directors of the Corporation shall
forthwith be reduced accordingly.
(g) Elections of directors need not be by written ballot.
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(h) In the event that the votes of the directors on any matter voted
upon by the Board of Directors are equally divided, the director who is at that
time the Vice Chairman of the Board of Directors shall have a second or casting
vote on such matter.
ARTICLE VII.
(a) The Corporation shall indemnify to the fullest extent authorized
or permitted under and in accordance with the laws of the State of Delaware (as
now or hereafter in effect) any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative in nature
(including any legislative or self-regulatory proceeding), by reason of the fact
that he or she is or was, or had agreed to become or is alleged to have been, a
director or officer of the Corporation, or, while a director or officer of the
Corporation, is or was serving, or had agreed to serve or is alleged to have
served, at the request of or to further the interests of the Corporation as a
director, officer, trustee, appointee, designee, employee, manager, partner, or
agent of or in any other capacity with another corporation or any limited
liability company, partnership, joint venture, trust or other enterprise,
including any employee benefit plan of the Corporation or of any of its
affiliates and any charitable or not-for-profit enterprise (any such person
being sometimes referred to hereafter as an "Indemnitee"), or by reason of any
action taken or omitted or alleged to have been taken or omitted by an
Indemnitee in any such capacity, against expenses (including court costs and
attorneys' fees), judgments, damages, fines, penalties, amounts paid in
settlement and other liabilities actually and reasonably incurred by him or her
or on his or her behalf in connection with such action, suit or proceeding and
any appeal therefrom. In case any action, suit or proceeding shall be brought
against any Indemnitee, such Indemnitee shall notify the Corporation of the
commencement thereof, and the Corporation shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, that such person had reasonable cause to believe that his or her
conduct was unlawful. With respect to service by an Indemnitee on behalf of any
employee benefit plan of the Corporation or any of its affiliates, action in
good faith in what the Indemnitee reasonably believed to be the best interest of
the beneficiaries of the plan shall be considered to be in or not opposed to the
best interests of the Corporation. The Corporation shall indemnify an Indemnitee
for expenses (including attorneys' fees) reasonably incurred by the Indemnitee
in connection with a proceeding successfully establishing his or her right to
indemnification, in whole or in part, pursuant to this Article. However,
notwithstanding anything to the contrary in this Article, the Corporation shall
not be required to indemnify an Indemnitee against expenses incurred in
connection with a proceeding (or part thereof) initiated by the Indemnitee
against the Corporation (other than as contemplated by the immediately preceding
sentence) or any other person who is an Indemnitee unless the initiation of the
proceeding was approved by the Board of Directors of the Corporation.
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(b) Expenses (including any attorneys' fees) reasonably incurred in
investigating, defending or responding to any civil or criminal action, suit,
proceeding or investigation in which a current or former director or officer of
the Corporation has been named as a defendant, respondent or target, and any
appeal therefrom, shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the current or former director or officer of the Corporation to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this Article VII.
Such undertaking shall be accepted by the Corporation without reference to the
financial ability of the current or former director or officer of the
Corporation to make such repayment.
(c) This indemnification and other rights set forth in this Article
VII shall not be exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under any law (common
or statutory), contract, agreement, bylaws, vote of stockholders or action of
the Board of Directors or otherwise, both as to action in his or her official
capacity and as to action in any other capacity while holding office for the
Corporation, and nothing contained in this Article VII shall be deemed to
prohibit the Corporation from entering into agreements with officers and
directors providing indemnification rights and procedures different from those
set forth in this Article VII.
(d) The right to indemnification and advancement of expenses
provided by this Article VII shall continue as to any person who formerly was an
officer or director of the Corporation in respect of acts or omissions occurring
or alleged to have occurred while he or she was an officer or director of the
Corporation and shall inure to the benefit of the estate, heirs, executors and
administrators of the Indemnitees. Unless otherwise required by law, the burden
of proving that the Indemnitee is not entitled to indemnification or advancement
of expenses under this Article shall be on the Corporation. The right of an
Indemnitee to indemnification or advances as granted by this Article VII shall
be a contractual obligation of the Corporation and, as such, shall be
enforceable by the Indemnitee in any court of competent jurisdiction.
(e) In addition to indemnification by the Corporation of current and
former officers and directors and advancement of expenses by the Corporation to
current and former officers and directors as provided for by the foregoing
provisions of this Article VII, the Corporation may, in a manner and to the
fullest extent permitted by law, indemnify current and former employees, agents
and other persons serving the Corporation and advance expenses to current and
former employees, agents and other persons serving the Corporation, in each case
as may be authorized by the Board of Directors, and any rights to indemnity or
advancement of expenses granted to such persons may be equivalent to, or greater
or less than, those provided to directors, officers and employees by this
Article VII.
(f) The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any current or former director, officer, employee
or agent of the Corporation or of another corporation or a limited liability
company, partnership, joint venture, trust or other enterprise (including any
employee benefit plan) in which the
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Corporation has an interest against any expense, liability or loss incurred by
the Corporation or such person in his or her capacity as such, or arising out of
his or her status as such, whether or not the Corporation would have the power
to or is obligated to indemnify such person against such expense, liability or
loss. The indemnification and reimbursement of expenses so provided by this
Article VII shall not be available to the extent that indemnification or
reimbursement has been received by such director or officer under any applicable
policy of insurance or otherwise.
(g) No amendment, termination or repeal of this Article VII or the
adoption of any provision of this Restated Certificate of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the effect of this
Article VII, in respect of any actions, transactions, facts or matter occurring
before such amendment, repeal or adoption of an inconsistent provision or in
respect of any cause of action, suit, claim, proceeding or investigation arising
out of or relating to any actions, transactions, facts or matter which would
have given rise to a right of indemnification or right to receive expenses
pursuant to this Article VII, if such provision had not been so amended,
terminated or repealed or if a provision inconsistent therewith had not been so
adopted.
(h) A director shall have no personal liability to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for (i) any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law by the
director, (iii) liability under Section 174 of the DGCL or (iv) any transaction
from which the director derived an improper personal benefit. If the DGCL is
hereafter amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director shall be
eliminated or limited to the full extent permitted by the DGCL, as so amended.
Any repeal or modification of this Article VII shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification with respect to an act or omission of such director
occurring prior to such repeal or modification.
(i) Notwithstanding anything to the contrary set forth in this
Article VII, and except as provided in clause (iv) below and as provided in the
Stipulation and Agreement Among the Debtors and Their Directors and Officers in
Respect of Certain Indemnification Claims in In re Loral Space & Communications
Ltd. et al., Case Nos. 03-41710 (RDD), 03-41709 (RDD) through 03-41728 (RDD) in
the United States Bankruptcy Court for the Southern District of New York, (i)
for the purposes of this Article VII, the term "Corporation" shall not include
Loral Space & Communications Ltd., a Bermuda company, or any direct or indirect
subsidiary thereof that at the time was not or that is not a direct or indirect
subsidiary of the Corporation (collectively, "Old Loral"), and the Corporation
shall not have obligations pursuant to this Article VII solely by virtue of any
assertion by any person, entity or governmental authority or any determination
by a court of competent jurisdiction, that it is a successor to Old Loral or any
other entity; (ii) the Corporation may, but shall not be required to, indemnify
any director or officer of Old Loral, or any person who was serving, or had
agreed to serve or is alleged to have served, at the request of or to further
the interests of Old Loral as a director, officer, trustee, appointee, designee,
employee, manager, partner, or agent of or
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in any other capacity with another corporation or any limited liability company,
partnership, joint venture, trust or other enterprise, including any employee
benefit plan of Old Loral or of any of its affiliates and any charitable or
not-for-profit enterprise, except as specifically set forth in that certain
Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy
Code, dated as of June 3, 2005 of Loral Space & Communications, Ltd. and its
subsidiaries that are a party thereto (as the same may be amended from time to
time, the "Plan"); (iii) the Corporation may, but shall not be required to,
indemnify any Indemnitee with respect to any events or circumstances occurring
prior to the filing of a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code on July 11, 2003 by Loral Space & Communications, Ltd. and its
subsidiaries that are a party thereto, except as specifically set forth in the
Plan; and (iv) the Corporation shall indemnify and hold harmless each Indemnitee
from and against and for any and all obligations incurred directly or indirectly
by Old Loral with respect to any taxes owed by Old Loral or the Debtors (as
defined in the Plan) for the period prior to the Effective Date (as defined in
the Plan), including interest and penalties, to any governmental entity and as
to which Old Loral or the Debtors are the primary obligor(s), to the full extent
provided in Paragraphs (a) through (h) of this Article VII.
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IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed and attested by its duly authorized
officers on this 21st day of November, 2005.
/s/ Avi Katz
____________________________
Avi Katz
Vice President and Secretary
ATTEST:
/s/ Janet Yeung
_______________________________________
Janet Yeung
Vice President and Assistant Secretary
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