Exhibit 3.5
RESTATED
CERTIFICATE OF INCORPORATION
OF
SPACE SYSTEMS/LORAL, INC.
Space Systems/Loral, 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 Space Systems/Loral, 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 Philco
Corporation on November 30, 1961.
3. On July 15, 2003, the Corporation and certain of its affiliates filed
voluntary petitions for relief under chapter 11 of title 11 of the United States
Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the
Southern District of New York (the "Bankruptcy Court") (Lead Case No. 03-41710
(RDD)). This Amended and Restated Certificate of Incorporation amends and
restates the original Certificate of Incorporation of the Corporation, as
amended to date (the "Certificate of Incorporation"), and has been duly adopted
in accordance with Sections 242, 245 and 303 of the General Corporation Law of
the State of Delaware (the "DGCL"), pursuant to the authority granted to the
Corporation under Section 303 of the DGCL to put into effect and carry out the
Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy
Code of the Corporation, et al., as confirmed on July 13, 2005 by order (the
"Order") of the Bankruptcy Court. Provision for amending the Certificate of
Incorporation is
contained in the Order of the Bankruptcy Court having jurisdiction under the
Bankruptcy Code for the reorganization of the Corporation.
4. The text of the Restated Certificate of Incorporation is hereby amended
and restated to read in its entirety as follows:
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RESTATED
CERTIFICATE OF INCORPORATION
OF
SPACE SYSTEMS/LORAL, INC.
********
1. The name of the corporation (the "Corporation") is:
Space Systems/Loral, Inc.
2. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
3. 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; provided, however, until the second anniversary of the date of the
filing of this Restated Certificate of Incorporation with the Secretary of State
of the State of Delaware, the Corporation shall not declare or pay dividends or
make or agree to make any other distributions of cash or property in respect of
its capital stock, other than to finance its allocable share of ordinary course
operating expenses of Loral Space & Communications Inc., a Delaware corporation
("Loral"), and shall not purchase, repay, guarantee, redeem, secure or otherwise
provide credit support for the Series A 12% Non-Convertible Preferred Stock or
14% Senior Secured Notes Due 2015 of Loral Skynet Corporation, a Delaware
corporation; provided, however, that the foregoing shall not apply to any of the
following transactions, which the Corporation shall be permitted to effect
solely pursuant to authorization of the Board of Directors which shall have the
sole authority to approve
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or disapprove in accordance with the Bylaws of the Corporation and applicable
law: (i) the Management Agreement by and among Loral, Loral Skynet Corporation,
a Delaware corporation ("Loral Skynet"), and the Corporation, dated as of
November 21, 2005, as the same may be amended from time to time, (ii) the Shared
Services Agreement by and among Loral, Loral Skynet and the Corporation, dated
as of November 21, 2005, as the same may be amended from time to time, (iii) any
tax sharing agreement with Loral or any of its subsidiaries, (iv) the Officers'
and Directors' Indemnification Agreements by and among Loral, Loral Skynet, the
Corporation and certain officers and directors of Loral, dated as of November
21, 2005, (v) the Employment Agreements by and among Loral, Loral Skynet, the
Corporation and certain officers of Loral, dated as of November 21, 2005; (vi)
the assignment by the Corporation to Loral Skynet Network Services, Inc.
("LSNS") or Loral Skynet Corporation ("Loral Skynet") of its right, title and
interest in, to and under that certain Transponder Lease Agreement effective as
of July 1, 2003 by and between the Corporation and Mabuhay Philippines Satellite
Corporation ("Mabuhay"), as well as the Corporation's right to collect and
receive certain monies from Mabuhay under that certain Memorandum of Agreement
effective as of June 30, 2003 by and among the Corporation, Philippine Long
Distance Telephone Company and Mabuhay; (vii) the discharge by the Corporation
of LSNS' obligations to make Lease Charges (as defined in that certain
Transponder Lease Agreement dated as of January 1, 2001 between Mabuhay and
Loral Cyberstar, Inc. (the predecessor in interest to LSNS)) to the Corporation
as set forth in that certain Memorandum of Agreement effective as of January 1,
2001 by and among Mabuhay, Loral Cyberstar, Inc. (the predecessor in interest to
LSNS) and the Corporation (the "2001 MOA"), and (viii) the assignment by the
Corporation to LSNS or Loral Skynet of its right to collect and receive certain
monies from Mabuhay under the 2001 MOA (collectively, the
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"Permitted Actions"). Until such second anniversary, the Corporation shall not
enter into transactions with, or purchase, repay, guarantee, redeem, secure or
otherwise provide credit support for any obligation of Loral or any legal entity
controlled, directly or indirectly, by Loral (other than the Corporation and the
Corporation's subsidiaries), or agree to do any of the foregoing, unless the
Corporation's Board of Directors determines that (i) any such transaction is
fair to the Corporation from a financial point of view, (ii) the Corporation is
receiving no less than substantially equivalent value in connection therewith
and (iii) the terms and conditions of any such transaction are no less favorable
than those that would have applied to a transaction with an unrelated third
party; provided, however, that the foregoing shall not apply to any Permitted
Actions, which the Board of Directors shall have the authority to approve or
disapprove in accordance with the Bylaws of the Corporation and applicable law.
4. The total number of shares of stock which the Corporation shall
have authority to issue is 200,000 shares, consisting of 100,000 shares of
Common Stock, par value $.10 per share, and 100,000 shares of Preferred Stock,
par value $.10 per share.
5. 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
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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.
6. Ownership of shares of any class or series of capital stock of the
Corporation shall not entitle the holders thereof to any preemptive right to
subscribe for or purchase or to have offered to them for subscription or
purchase any additional shares of capital stock of any class or series of the
Corporation or any securities convertible into any class or series of capital
stock of the Corporation, whether now or hereafter authorized, however acquired,
issued or sold by the Corporation, it being the purpose and intent hereof that
the Board of Directors shall have full right, power and authority to offer for
subscription or sell or to make any disposal of any or all unissued shares of
the capital stock of the Corporation or any securities convertible into stock or
any or all shares of stock or convertible securities issued and thereafter
acquired by the Corporation, for such consideration as the Board of Directors in
its sole discretion shall determine.
7. 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.
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8. 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.
9. 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 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.
10. 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. The number of directors of the Corporation
shall be fixed from time to time by the stockholders, provided, however, that
such number shall be no fewer than three (3) and no more than fifteen (15).
11. 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.
12. The Corporation is to have perpetual existence.
13. Elections of directors need not be by written ballot.
14. Any director may be removed from the Board of Directors, with or
without cause, by the holders of two-thirds of the shares of capital stock
entitled to vote, either
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by written consent or consents or at any special meeting of the stockholders
called for that purpose, and the office of such director shall forthwith become
vacant.
15. 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,
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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.
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
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as authorized in this Section 15. 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 Section 15 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 Section 15 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 Section 15.
d. The right to indemnification and advancement of expenses provided by
this Section 15 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 Section 15 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 Section 15, the Corporation may, in
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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 Section 15.
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 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 Section 15 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 Section 15 or the adoption
of any provision of this Restated Certificate of Incorporation inconsistent with
this Section 15, shall eliminate or reduce the effect of this Section 15, 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
Section 15, if such provision had not
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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 Section 15 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 Section 15,
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 Section 15, 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 Section 15 solely by virtue of any
assertion by any person, entity or governmental authority or
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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 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 Section 15.
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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
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Avi Katz
Vice President and Secretary
ATTEST:
/s/ Janet Yeung
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Janet T. Yeung
Vice President and Assistant
Secretary
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