Exhibit 3.1
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EMERGENCY MEDICAL SERVICES CORPORATION
1. The name of the Corporation is Emergency Medical Services Corporation
(the "CORPORATION"). The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
November 1, 2005 (the "ORIGINAL CERTIFICATE OF INCORPORATION").
2. This Amended and Restated Certificate of Incorporation amends and
restates the Original Certificate of Incorporation in its entirety.
3. The text of the Certificate of Incorporation of the Corporation, as
amended and restated by this Amended and Restated Certificate of Incorporation,
reads in its entirety as follows:
ARTICLE FIRST: Name. The name of the Corporation is Emergency Medical
Services Corporation.
ARTICLE SECOND: Registered Office. The location and address of the
Corporation's registered office in the State of Delaware is Corporation Services
Company, 2711 Centerville Road, Suite 400, County of New Castle, Wilmington,
Delaware 19808. Corporation Services Company is the
Corporation's registered agent at that address.
ARTICLE THIRD: Purposes. The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law, as amended from time to time (the "DGCL").
ARTICLE FOURTH: Duration. The term of the Corporation's existence is
perpetual.
ARTICLE FIFTH: Authorized Stock.
Part A: Authorized Number of Shares. The total number of shares of capital
stock that the Corporation shall have the authority to issue is 160,000,000
shares, consisting of: (i) 100,000,000 shares of Class A Common Stock, par value
$0.01 per share (the "CLASS A COMMON STOCK"), (ii) 40,000,000 shares of Class B
Common Stock, par value $0.01 per share (the "CLASS B COMMON STOCK"), (iii) one
share of Class B Special Voting Stock, par value $0.01 per share (the "CLASS B
SPECIAL VOTING STOCK"), and (iv) 20,000,000 shares of Preferred Stock, par value
$0.01 per share (the "PREFERRED STOCK"). The Class A Common Stock and the Class
B Common Stock are hereinafter referred to collectively as "COMMON STOCK" and no
other class or series of capital stock of the Corporation shall be considered as
"Common Stock" for purposes of the certificate of incorporation of the
Corporation. No share of Class B Common Stock shall be issued by the Corporation
at any time when there is not already outstanding a share of Class B Common
Stock or an LP Exchangeable Unit (as defined below).
Part B: Certain Definitions. As used in this Certificate of Incorporation,
the following capitalized terms have the following respective meanings:
(1) "AFFILIATE" means, with respect to any Person, (a) any director or
executive officer of such Person, (b) any spouse, parent, sibling, descendant or
trust for the exclusive benefit of such Person or his or her spouse, parent,
sibling or descendant (or the spouse, parent, sibling or descendant of any
director or executive officer of such Person), and (c) any other Person that,
directly or indirectly, controls or is controlled by or is under common control
with such Person. For the purpose of this definition, (i) "control" (including
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, status as a general partner, by contract or otherwise and (ii) Onex
and Onex Partners shall be deemed to control any Person (A) controlled by Gerald
W. Schwartz so long as Mr. Schwartz controls Onex or (B) if Onex has sole or
shared "voting power" or "investment power," as those terms are defined in the
rules of the Securities and Exchange Commission, over the Class B Common Stock
held by such Person.
(2) "BUSINESS DAY" shall mean any day other than a Saturday, a Sunday, or
any day on which banking institutions in the State of New York are required or
authorized to close by law or executive order.
(3) "EFFECTIVE DATE" has the meaning set forth in Article Twelfth.
(4) "INITIAL INVESTOR GROUP" means (a) all members of the Onex Group and
(b) any other Person who obtains Class B Common Stock through a direct sale or
issuance by the Corporation, each of which shall be considered a member of the
Initial Investor Group for purposes hereof.
(5) "MINIMUM HOLD CONDITION" means, at any time, the state of affairs
where the aggregate of the numbers of outstanding shares of Class B Common Stock
and LP Exchangeable Units is at least 10% of the aggregate of the numbers of
shares of Common Stock and LP Exchangeable Units then outstanding. The Minimum
Hold Condition is not satisfied if, at any time, the foregoing requirement is
not satisfied.
(6) "ONEX" means Onex Corporation, a corporation organized and existing on
the Effective Date under the laws of the Province of Ontario, Canada, and any
successor to all or substantially all the assets and business thereof, including
any interest owned by Onex in the shares of capital stock of the Corporation.
(7) "ONEX GROUP" means Onex, Onex Partners and any Affiliate of Onex or
Onex Partners, each of which shall be considered "a member of the Onex Group"
for purposes hereof.
(8) "ONEX PARTNERS" means Onex Partners LP, a limited partnership
organized and existing on the Effective Date under the laws of the State of
Delaware, and any successor to all or substantially all the assets and business
thereof, including any interest owned by Onex Partners in shares of capital
stock of the Corporation.
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(9) "PERSON" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or other entity or a government or any department or agency
thereof.
(10) "TRANSFER" with respect to shares of Common Stock means to sell,
assign, donate, contribute, place in trust (including a voting trust), or
otherwise voluntarily or involuntarily dispose of, directly or indirectly, such
shares, but shall not include the creation of a security interest in or pledge
of such shares.
Part C: Powers, Privileges and Rights of the Common Stock. All shares of
Common Stock (both shares of Class A Common Stock and shares of Class B Common
Stock) will be identical in all respects and will entitle the holders thereof to
the same powers, privileges and rights, except as otherwise provided by law or
the following provisions of this article or any other provision of the
Corporation's certificate of incorporation from time to time in effect. Without
limiting the foregoing provisions of this paragraph, whenever any dividend or
distribution (including any distribution upon liquidation, dissolution or
winding up of the Corporation or upon the reclassification of shares or a
recapitalization of the Corporation) is made on the shares of Class A Common
Stock, a like dividend or distribution shall be made on the shares of Class B
Common Stock, and, whenever any dividend or distribution is made on the shares
of Class B Common Stock, a like dividend or distribution shall be made on the
shares of Class A Common Stock; provided, however, that at any time when shares
of Class B Common Stock are outstanding no dividend or other distribution shall
be payable in shares of Class A Common Stock or Class B Common Stock or
securities convertible into, exchangeable for or exercisable to acquire shares
of Class A Common Stock or Class B Common Stock (including a distribution
pursuant to a stock split or a division of such class of stock or a
recapitalization of the Corporation), unless only shares of Class A Common Stock
or securities convertible into, exchangeable for or exercisable to acquire
shares of Class A Common Stock shall be distributed with respect to any
outstanding shares of Class A Common Stock and simultaneously only a like number
per share of shares of Class B Common Stock or securities convertible into,
exchangeable for or exercisable to acquire shares of Class B Common Stock and
otherwise in all material respects having the same powers, privileges and rights
as the securities distributed with respect to the shares of Class A Common Stock
shall be distributed with respect to any outstanding shares of Class B Common
Stock. The Corporation shall not subdivide or combine (by stock split, reverse
stock split, recapitalization, merger, consolidation or other transaction) its
shares of Class A Common Stock or Class B Common Stock, as the case may be,
without in the same manner subdividing or combining its shares of Class B Common
Stock or Class A Common Stock, respectively.
Section 1. Mandatory Conversion and Optional Conversion of Shares of Class
B Common Stock.
(a) Upon the Transfer of a share of Class B Common Stock to any Person
other than a member of the Initial Investor Group, such share of Class B Common
Stock so Transferred shall automatically, and without any notice to or action by
the Corporation, the holder thereof or any other Person (other than the
effectuation of the Transfer), convert into one share of Class A Common Stock.
The Corporation shall not register or otherwise give effect to a Transfer of
shares of Class B Common Stock referred to in the foregoing sentence without
reflecting the conversion of such shares into shares of Class A Common Stock
and, as soon as practicable after the Corporation has knowledge of any Transfer
of shares of Class B Common Stock as to which conversion of such shares into
shares of Class A Common Stock is required,
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shall effectuate the conversion of such shares. For the purpose of effectuating
the conversion of shares of Class B Common Stock into shares of Class A Common
Stock in accordance with the provisions of this paragraph, the provisions of
paragraph (e) of this section shall apply.
(b) Each holder of Class B Common Stock shall be entitled at any time, in
the manner provided by paragraph (d) of this section, to convert all or any
portion of such holder's Class B Common Stock into shares of fully paid and
non-assessable Class A Common Stock at the ratio of one share of Class A Common
Stock for each share of Class B Common Stock so converted.
(c) The right to convert shares of Class B Common Stock into shares of
Class A Common Stock as provided by paragraph (b) of this section shall be
exercised by the surrender to the Corporation of the certificate or certificates
representing the shares to be converted at any time during normal business hours
at the principal executive offices of the Corporation or at the office of the
Corporation's transfer agent (the "TRANSFER AGENT"), accompanied by a written
notice of the holder of such shares stating that such holder desires to convert
such shares, or a stated number of the shares represented by such certificate or
certificates, into shares of Class A Common Stock, as shall be stated in such
notice, and, if certificates representing any of the shares to be issued upon
such conversion are to be issued in a name other than that of the holder of the
share or shares converted, accompanied by an instrument of transfer, in form
satisfactory to the Corporation and to the Transfer Agent, duly executed by such
holder or such holder's duly authorized attorney, and the holder shall at such
time also make payment or provision for payment of any taxes applicable to such
Transfer if required by the following provisions of this subsection. As promptly
as practicable following the surrender for conversion of a certificate
representing shares to be converted with the notice and in the manner provided
in this paragraph, and, in the event the conversion is effected in connection
with a Transfer, the payment of any amount required by the provisions of this
section to be paid by the holder in connection with such Transfer, the
Corporation shall deliver or cause to be delivered at the office of the Transfer
Agent a certificate or certificates representing the number of whole shares of
Class A Common Stock issuable upon such conversion, issued in such name or names
as such holder may have directed. The issuance of certificates for shares upon
such a conversion shall be made without charge to the holders of the shares to
be converted for any stamp or other similar stock transfer or documentary tax
assessed in respect of such issuance; provided, however, that, if any such
certificate is to be issued in a name other than that of the holder of the share
or shares to be converted, then the person or persons requesting the issuance
thereof shall pay to the Corporation the amount of any tax that may be payable
in respect of any Transfer involved in such issuance or shall establish to the
satisfaction of the Corporation that such tax has been paid or is not payable.
Any such conversion of shares shall be considered to have been effected
immediately prior to the close of business on the date of the surrender of the
certificate or certificates representing the shares to be converted accompanied
by the required notice and payment, if any. Upon the date any such conversion is
deemed effected, all rights of the holder of the converted shares as such holder
shall cease, and the person or persons in whose name or names the certificate or
certificates representing the shares to be issued upon conversion of the shares
surrendered for conversion shall be treated for all purposes as having become
the record holder or holders of the shares of Class A Common Stock issuable upon
such conversion; provided, however, that, if any such surrender and payment
occurs on any date when the stock transfer books of the Corporation shall be
closed, the person or persons in whose name or names the certificate or
certificates representing shares are to be so issued shall be deemed the record
holder or holders thereof for
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all purposes immediately prior to the close of business on the next succeeding
day on which the stock transfer books are open.
(d) In the event of any conversion effected automatically without notice
pursuant to paragraph (a) of this section, until the certificates representing
shares which have been converted shall have been surrendered to the Corporation,
such certificates shall represent the appropriate number of shares of Class B
Common Stock or Class A Common Stock, as the case may be, into which the shares
represented by such certificates shall have been converted. Upon surrender by
any holder of certificates representing shares which have been automatically
converted pursuant to paragraph (a) of this section, the Corporation shall issue
to such holder a new certificate or certificates representing the number of
shares of Class B Common Stock or Class A Common Stock, as the case may be, into
which the shares represented by the surrendered certificates shall have been
converted, without charge to the holder, provided that, in the event conversion
is effected in connection with a Transfer, all required stamp and transfer taxes
required to be paid in connection with such Transfer shall have been paid. Upon
conversion of such shares, all rights of the holder of the converted shares as
such holder shall cease, and the holder of such converted shares and/or such
holder's transferee(s) shall be treated for all purposes as having become the
record holder or holders of the shares of Class A Common Stock or Class B Common
Stock, as the case may be, issuable upon such conversion. Any such conversion of
shares shall be considered to have been effected immediately prior to the close
of business on the date such conversion has been automatically effected, or if
such automatic conversion is effected on any date when the stock transfer books
of the Corporation shall be closed, such automatic conversion shall be
considered to have been effected immediately prior to the close of business on
the next succeeding day on which the stock transfer books are open.
(e) No adjustments in respect of dividends declared and payable on Common
Stock (of any class), or any other security into which shares of Class B Common
Stock or Class A Common Stock shall be convertible, shall be made upon the
conversion of shares of Class B Common Stock or Class A Common Stock as provided
in this section; provided, however, that, if a share of Common Stock shall be
converted subsequent to the record date for the payment of a dividend or other
distribution on the shares or other security into which such share is
convertible but prior to such payment, then the registered holder of such share
at the close of business on such record date shall be entitled to receive the
dividend or other distribution payable on such share on such date
notwithstanding the conversion thereof or any default in payment of the dividend
or distribution due before the conversion.
(f) In the event of a reclassification of the Class A Common Stock or the
Class B Common Stock, or a recapitalization of the Corporation or similar
transaction, as a result of which the shares of Class A Common Stock or Class B
Common Stock are converted into or exchanged for another security, then a holder
of Class B Common Stock or Class A Common Stock, as the case may be, shall be
entitled to receive upon conversion of such holder's shares where permitted in
accordance with the foregoing provisions of this section the amount per share of
such other security that such holder would have received if such holder had
converted any or all of such holder's shares of Class B Common Stock into Class
A Common Stock, or all of such holder's shares of Class A Common Stock into
Class B Common Stock, as the case may be, immediately prior to the record date
of such reclassification, recapitalization or similar transaction.
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(g) The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Class A Common Stock (or any other
security of the Corporation into which the Class B Common Stock becomes
convertible), solely for the purpose of issuance upon conversion of the
outstanding shares of Class B Common Stock, such number of shares of Class A
Common Stock (or any other security of the Corporation into which the Class B
Common Stock becomes convertible) that shall be issuable upon the conversion of
all outstanding shares of Class B Common Stock.
(h) The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Class B Common Stock (or any other
security of the Corporation for which the LP Exchangeable Units become
exchangeable), solely for the purpose of issuance upon the exchange of the
outstanding LP Exchangeable Units, such number of shares of Class B Common Stock
(or any other security of the Corporation for which the LP Exchangeable Units
become exchangeable) that shall be issuable upon the exchange of all outstanding
LP Exchangeable Units.
(i) Shares of Class B Common Stock that are converted into shares of Class
A Common Stock (or another security) as provided herein shall continue as
authorized but unissued shares of Class B Common Stock and shall be available
for reissue by the Corporation; provided, however, that no shares of Class B
Common Stock shall be re-issued at any time when no shares of Class B Common
Stock or LP Exchangeable Units are outstanding. Shares of Class A Common Stock
that are converted into shares of Class B Common Stock as provided herein shall
continue as authorized but unissued shares of Class A Common Stock and shall be
available for reissue by the Corporation.
Section 2. Voting Powers. Except as otherwise provided by law, by the
following provisions of this section or by Part D or E of this article or by any
other provision of the Corporation's certificate of incorporation from time to
time in effect, the holders of shares of Common Stock and the share of Class B
Special Voting Stock shall have the sole power to vote on all matters on which
stockholders of the Corporation may vote (or to consent in lieu of a vote at a
meeting) and on all matters on which the holders of Common Stock and the Class B
Special Voting Stock shall be entitled to vote (or consent in lieu of a vote at
a meeting), the holders of shares of Class A Common Stock, the holders of shares
of Class B Common Stock and the holder of the Class B Special Voting Stock shall
vote together as though holders of a single class of capital stock (or, if any
holders of any other class or series of capital stock of the Corporation are
entitled to vote together with the holders of Common Stock of any class, as
though a single class with the holders of such other class or series as well as
the holders of Common Stock) and shall have on each such matter the voting
powers provided by the following provisions of this section.
(a) Holders of Class A Common Stock shall have one vote per share on all
matters on which holders of Common Stock are entitled to vote.
(b) Holders of Class B Common Stock shall have ten votes per share on all
matters on which holders of Common Stock are entitled to vote until such time as
the Minimum Hold Condition is not satisfied and shall thereafter have one vote
per share.
(c) The holder of the share of Class B Special Voting Stock shall be
entitled to vote on all matters submitted to a vote of the holders of Class B
Common Stock (whether at an annual or special meeting or by written consent),
voting together with the holders of Class B
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Common Stock as a single class (except as otherwise provided herein or required
by applicable law). The holder of the share of Class B Special Voting Stock
shall be entitled to cast on any such matter a number of votes equal to that
number of votes which would attach to the Class B Common Stock receivable upon
the exchange of the LP exchangeable units representing limited partnership
interests in Emergency Medical Services L.P. ("LP EXCHANGEABLE UNITS")
outstanding on the record date established by the Company or by applicable law
for such annual or special meeting or written consent of stockholders, as the
case may be (other than LP Exchangeable Units owned by the Corporation or its
Subsidiaries). In the case only of a vote of Class B Common Stock, voting
separately as a class, the holder of the Class B Special Voting Stock shall be
entitled to cast and exercise on such class vote that number of votes comprised
in the voting rights which is equal to the number of LP Exchangeable Units
outstanding on the record date established by the Company or by applicable law
for such annual or special meeting or written consent of stockholders, as the
case may be (other than those owned by the Corporation or its Subsidiaries).
If, notwithstanding the provisions of this paragraph (c) and paragraph (d)
of this section, the holders of the Class B Common Stock shall be entitled by
law to vote as a separate class on any matter without the holder of the Class B
Special Voting Stock, then, in addition to any other vote of stockholders that
may be required, the holder of the Class B Special Voting Stock shall be
entitled to vote as a separate class on such matter.
(d) In addition to any other voting right or power to which the holders of
Class B Common Stock shall be entitled by law or other provisions of the
certificate of incorporation of the Corporation from time to time in effect,
holders of Class B Common Stock, together with the holder of the Class B Special
Voting Stock, shall be entitled to vote as a separate class, in addition to any
other vote of stockholders that may be required, on approval of (i) any
alteration, repeal or amendment of the certificate of incorporation of the
Corporation which would adversely affect the powers, preferences or rights of
the holders of Class B Common Stock or the holder of the Class B Special Voting
Stock, and (ii) any merger or consolidation of the Corporation with any other
entity if, as a result, shares of Class B Common Stock would be converted into
or exchanged for, or receive, any consideration that differs from that
applicable to the shares of Class A Common Stock as a result of such merger or
consolidation, other than a difference limited to preserving the relative voting
power of the holders of Class A Common Stock and Class B Common Stock. In
respect of any matter as to which the holders of the Class B Common Stock shall
be entitled to a class vote in accordance with this section, holders shall have
one vote per share and the affirmative vote of the holders of a majority of the
shares of Class B Common Stock shall be required for approval.
(d) In addition to any other voting right or power to which the holders of
Class A Common Stock shall be entitled by law or other provisions of the
certificate of incorporation of the Corporation from time to time in effect,
holders of Class A Common Stock shall be entitled to vote as a separate class,
in addition to any other vote of stockholders that may be required, on approval
of (i) any alteration, repeal or amendment of the certificate of incorporation
of the Corporation which would adversely affect the powers, preferences or
rights of the holders of Class A Common Stock, and (ii) any merger or
consolidation of the Corporation with any other entity if, as a result, shares
of Class B Common Stock would be converted into or exchanged for, or receive,
any consideration that differs from that applicable to the shares of Class A
Common Stock as a result of such merger or consolidation, other than a
difference limited to preserving the relative voting power of the holders of
Class A Common Stock and Class B Common Stock. In respect of any matter as to
which the holders of the Class A
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Common Stock shall be entitled to a class vote in accordance with this section,
holders shall have one vote per share and the affirmative vote of the holders of
a majority of the shares of Class A Common Stock shall be required for approval.
Part D: Powers, Privileges and Rights of Class B Special Voting Stock. The
share of Class B Special Voting Stock will entitle the holder thereof to the
powers, privileges and rights provided by law, by the provisions of Part C of
this article or any other provision of the Corporation's certificate of
incorporation from time to time in effect.
The holder of the share of Class B Special Voting Stock will not be
entitled to receive any dividend or distribution (including any distribution
upon liquidation, dissolution or winding up of the Corporation or upon the
reclassification of shares or a recapitalization of the Corporation) made on the
shares of Common Stock and, whenever any dividend or distribution is made on the
shares of Common Stock, no like dividend or distribution shall be made on the
share of Class B Special Voting Stock. Upon the liquidation, dissolution or
winding up of the Corporation, the holder of the Class B Special Voting Stock
shall be entitled, prior and in preference to any distribution to holders of
Common Stock, to receive the sum of $0.01.
Part E: Preferred Stock. Shares of Preferred Stock may be issued from time
to time in one or more series, each such series having such powers, preferences
and rights, and the qualifications, limitations or restrictions thereof, as are
stated and expressed in the resolution or resolutions providing for the issuance
of such series adopted by the Board of Directors of the Corporation as
hereinafter provided. Authority is hereby granted to the Board of Directors of
the Corporation to issue from time to time shares of the Preferred Stock in one
or more series, each such series to include such number of shares and to have
such powers, preferences and rights as are stated and expressed in a resolution
or resolutions adopted by the Board of Directors of the Corporation and filed as
required by the DGCL before such issuance and determining and fixing such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights of such series of
Preferred Stock, and the qualifications, limitations or restrictions thereof
(including, without limitation, dividend rights, special voting rights or
powers, conversion rights, redemption privileges and liquidation preferences),
as shall in the discretion of the Board of Directors of the Corporation be
stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the DGCL. Any shares of Preferred Stock which may be
redeemed, repurchased or otherwise acquired by the Corporation may be reissued
except as otherwise provided by law.
Part F: Uncertificated Shares. Any or all classes and series of stock of
the Corporation, or any part thereof, may be represented by uncertificated stock
to the extent permitted by the DGCL. The rights and obligations of the holders
of stock represented by certificates and the rights and obligations of the
holders of uncertificated stock of the same class and series shall be identical.
ARTICLE SIXTH: By-Laws. The Board of Directors shall have the power to
make, alter or repeal the By-Laws of the Corporation.
ARTICLE SEVENTH: Election and Term of Directors. Effective immediately
upon the Effective Date (as defined in Article Twelfth), the Board of Directors
shall be divided into three classes, Class I, Class II and Class III. The number
of directors in each class shall be the whole number contained in the quotient
arrived at by dividing the authorized number of directors by three, and if a
fraction is also contained in such quotient, then if such fraction is one-third,
the
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extra director shall be a member of a class designated by the Board of Directors
and if the fraction is two-thirds, each extra director shall be a member of a
different class, as designated by the Board of Directors. Except as otherwise
provided herein, each director shall serve for a term ending on the date of the
third annual meeting following the annual meeting at which such director was
elected; provided, however, that the directors first elected to Class I shall
serve for a term ending on the date of the annual meeting next following the end
of the calendar year 2005, the directors first elected to Class II shall serve
for a term ending on the date of the annual meeting next following the end of
the calendar year 2006, and the directors first elected to Class III shall serve
for a term ending on the date of the annual meeting next following the end of
the calendar year 2007. Notwithstanding the foregoing formula provisions, in the
event that, as a result of any change in the authorized number of directors, the
number of directors in any class would differ from the number allocated to that
class under the formula provided in this Article Seventh immediately prior to
such change, the following rules shall govern:
(a) Each director then serving as such shall nevertheless continue as a
director of the class of which such director is a member until the expiration of
his current term, or his prior death, resignation or removal.
(b) At each subsequent election of directors, even if the number of
directors in the class whose term of office then expires is less than the number
then allocated to that class under said formula, the number of directors then
elected for membership in that class shall not be greater than the number of
directors in that class whose term of office then expires, unless and to the
extent that the aggregate number of directors then elected plus the number of
directors in all classes then duly continuing in office does not exceed the then
authorized number of directors of the Corporation.
(c) At each subsequent election of directors, if the number of directors
in the class whose term of office then expires exceeds the number then allocated
to that class under said formula, the Board of Directors shall designate one or
more of the directorships then being elected as directors of another class or
classes in which the number of directors then serving is less than the number
then allocated to such other class or classes under said formula.
(d) In the event of the death, resignation or removal of any director who
is a member of a class in which the number of directors serving immediately
preceding the creation of such vacancy exceeded the number then allocated to
that class under said formula, the Board of Directors shall designate the
vacancy thus created as a vacancy in another class in which the number of
directors then serving is less than the number then allocated to such other
class under said formula.
(e) In the event of any increase in the authorized number of directors,
the newly created directorships resulting from such increase shall be
apportioned by the Board of Directors to such class or classes as shall, so far
as possible, bring the composition of each of the classes into conformity with
the formula in this Article Seventh, as it applies to the number of directors
authorized immediately following such increase.
(f) Designation of directorships or vacancies into other classes and
apportionments of newly created directorships to classes by the Board of
Directors under the foregoing paragraphs (c), (d) and (e) shall, so far as
possible, be effected so that the class whose term of office is due to expire
next following such designation or apportionment shall contain the full number
of directors then allocated to said class under said formula.
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(g) If and for so long as the holders of any class or series of Preferred
Stock, voting as a class, shall be entitled to elect a specified number of
directors (including any period after shares of Preferred Stock have been
converted into shares of Common Stock, if and for so long as the Corporation is
contractually obligated to maintain such additional directorship(s)), then and
during such period as such right or obligation continues the then otherwise
authorized number of directors shall be increased by such specified number of
director(s), and each such additional director shall serve for such term as
shall be stated in the provisions pertaining to such class or series of
Preferred Stock. At the end of such period, the term of any such additional
director shall expire.
Notwithstanding any of the foregoing provisions of this Article Seventh:
(i) except as provided in clause (g) above, each director shall serve
until his successor is elected and qualified or until his death, resignation or
removal; and
(ii) so long as the Minimum Hold Condition is satisfied, any director or
the entire Board of Directors may be removed, with or without cause, by the
holders of Class A Common Stock, Class B Common Stock and Class B Special Voting
Stock, voting together as a single class.
The election of directors need not be by written ballot unless the By-Laws
of the Corporation shall otherwise provide.
ARTICLE EIGHTH: Indemnification. The Corporation shall indemnify to the
fullest extent permitted by Section 145 of the DGCL, each person who is or was a
director of the Corporation and the heirs, executors and administrators of such
directors; and the Corporation may, in its sole discretion, indemnify such other
persons that such Section grants the Corporation the power to indemnify.
ARTICLE NINTH: Liability. No director shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director for any act or omission occurring subsequent to the date when
this provision becomes effective, except that he or she may be liable (a) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the DGCL or (d) for any transaction from which the director derived an improper
personal benefit.
ARTICLE TENTH: Certain Business Transactions. Whenever a compromise or
arrangement is proposed between the Corporation and its creditors or any class
of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on
the application in a summary way of the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers appointed
for the Corporation under Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for the Corporation under Section 279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any
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compromise or arrangement and to any reorganization of the Corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of
the Corporation, as the case may be, and also on the Corporation.
ARTICLE ELEVENTH: DGCL Section 203. The Corporation elects not to be
governed by Section 203 of the DGCL.
ARTICLE TWELFTH: Effective Date. This Certificate of Incorporation shall
become effective, in accordance with the DGCL, upon filing with the office of
the Secretary of State of the State of Delaware (the date of such effectiveness,
the "EFFECTIVE DATE").
IN WITNESS WHEREOF, the undersigned, a duly authorized officer
of the Corporation, has duly executed this Amended and Restated Certificate of
Incorporation on this ___ day of ________, 2005.
By:
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Name:
Title:
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