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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MSX INTERNATIONAL, INC.
MSX INTERNATIONAL, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "GCL"), does hereby
certify that:
1. The name of the corporation is MSX INTERNATIONAL, INC. (the
"Corporation"). The original Certificate of Incorporation of the Corporation was
filed in the Office of the Secretary of State of Delaware on November 8, 1996
and a certified copy was recorded in the Office of the Recorder of New Castle
County, Delaware. A Restated Certificate of Incorporation of the Corporation was
filed in the Office of the Secretary of State of Delaware on January 3, 1997. A
Certificate of Amendment to the Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of Delaware on
January 7, 1997. A Certificate of Amendment to the Restated Certificate of
Incorporation of the Corporation was filed in the Office of the Secretary of
State of Delaware on January 22, 1998 and another Certificate of Amendment to
the Restated Certificate of Incorporation of the Corporation was filed in the
Office of the Secretary of State of Delaware on December 29, 2000.
2. This Amended and Restated Certificate of Incorporation (i) was duly
adopted by the unanimous written consent of the Board of Directors and by a
written consent of stockholders holding not less than the minimum number of
votes that would be necessary to authorize such action at a meeting at which all
shares entitled to vote thereon were present and voted in accordance with
Sections 141(f), 228 and 242 of the Delaware General Corporation Law and (ii)
amends, restates and integrates the provisions of the Restated Certificate of
Incorporation of the Corporation as in effect immediately prior to the filing
hereof.
3. The Certificate of Incorporation of the Corporation is hereby
amended and restated to read in its entirety as follows:
FIRST: The name of the corporation is MSX International, Inc.
(hereinafter the "Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, the City of Wilmington, County of New Castle
19801. The name of its registered agent at such address is The Corporation Trust
Company.
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THIRD: The purpose of 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 "GCL").
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 401,500,000 shares, consisting of
400,000,000 shares of Common Stock, $.01 par value per share (the "Common
Stock"), and 1,500,000 shares of Preferred Stock, $.01 par value per share (the
"Preferred Stock"). The Common Stock will consist of two classes of Common
Stock, as follows:
(i) 200,000,000 shares of Class A Common Stock, $.01 par value per
share (the "Class A Common"), consisting of five series designated as follows:
(v) 25,000,000 shares of Series A-1 Common Stock, $.01 par value per
share (the "Series A-1 Common"),
(w) 25,000,000 shares of Series A-2 Common Stock, $.01 par value per
share (the "Series A-2 Common"),
(x) 25,000,000 shares of Series A-3 Common Stock, $.01 par value per
share (the "Series A-3 Common"),
(y) 25,000,000 shares of Series A-4 Common Stock, $.01 par value per
share (the "Series A-4 Common") and
(z) 100,000,000 shares of Series I Common Stock, $.01 par value per
share (the "Series I Common").
(ii) 200,000,000 shares of Class B Common Stock, $.01 par value per
share (the "Class B Common"), consisting of five series designated as follows:
(v) 25,000,000 shares of Series B-1 Common Stock, $.01 par value per
share (the "Series B-1 Common"),
(w) 25,000,000 shares of Series B-2 Common Stock, $.01 par value per
share (the "Series B-2 Common"),
(x) 25,000,000 shares of Series B-3 Common Stock, $.01 par value per
share (the "Series B-3 Common"),
(y) 25,000,000 shares of Series B-4 Common Stock, $.01 par value per
share (the "Series B-4 Common") and
(z) 100,000,000 shares of Series II Common Stock, $.01 par value per
share (the "Series II Common").
Effective on December 29, 2000, each share of Series A-1 Common issued
and outstanding shall constitute 200 shares of Series A-1 Common, each share of
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Series A-2 Common issued and outstanding shall constitute 200 shares of Series
A-2 Common, each share of Series A-3 Common issued and outstanding shall
constitute 200 shares of Series A-3 Common and each share of Series A-4 Common
issued and outstanding shall constitute 200 shares of Series A-4 Common.
The Preferred Stock will consist of two classes of Preferred Stock, as
follows:
(i) 500,000 shares of Series A Preferred Stock, $.01 par value per
share (the "Series A Preferred"), and
(ii) 1,000,000 shares of a class of Preferred Stock constituting New
Preferred Stock, $.01 par value per share, in one or more series, the terms of
which may be set forth by resolution of the Board of Directors, as provided by
Section 1 of Part III of Article FOURTH (the "New Preferred Stock").
PART I
DEFINITIONS
(1) The following terms shall have the following meanings in this
Certificate of Incorporation (such definitions to be equally applicable to both
singular and plural forms of the terms defined):
"Accounting Determination" has the meaning provided in the
Stockholders' Agreement.
"Additional Exchange Notice" means a notice to the Corporation from a
holder of shares of Series A Preferred requesting that the Corporation exchange
an amount of such holder's shares of Series A Preferred up to the amount of the
Exchange Shares in accordance with the terms of an Exchange Offer delivered by
the Corporation to such holder.
"Affiliate" means with respect to any Person, any other Person that
controls, is controlled by or is under common control with such Person. For the
purposes of this definition, "control" (including its correlative meanings, the
terms "controlling", "controlled by" and "under common control with"), as
applied 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 securities, by contract or otherwise.
"Board of Directors" means the board of directors of the Corporation.
"Business Day" means a day, other than a Saturday or Sunday, on which
banks in New York, New York are open for business.
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"Exchange Notice" means a notice to the Corporation from the
Institutional Stockholders holding a majority of the issued and outstanding
shares of Series A Preferred Stock held by the Institutional Stockholders (as
such terms are defined in the Stockholders' Agreement) (the "Initiating
Holders"), which (A) states that such holder or holders propose to exchange
shares of Series A Preferred held by the Initiating Holders and to sell the
Junior Debentures obtained upon such exchange to the persons identified in such
notice (each, an "Offeree"), (B) sets forth the number of shares of Series A
Preferred proposed to be so exchanged and the material terms and conditions of
such sale (including the purchase price therefor) and (C) irrevocably offers
each other holder of Series A Preferred the right to participate in the sale to
the Offeree of Junior Debentures on the same terms and conditions as the
Initiating Holders in an amount equal to the product of (x) the total number of
shares of Series A Preferred held by such holder and (y) a fraction, the
numerator of which is the number of shares of Series A Preferred requested to be
exchanged by the Initiating Holders in such Exchange Notice and the denominator
of which is the total number of shares of Series A Preferred held by such
Initiating Holders.
"Exchange Shares" means, with respect to any Exchange Notice, that
amount of shares of Series A Preferred held by each holder of shares of Series A
Preferred (other than the Initiating Holders) which is equal to the product of
(x) the total number of shares of Series A Preferred held by such holder and (y)
a fraction, the numerator of which is the number of shares of Series A Preferred
requested to be exchanged by the Initiating Holders in such Exchange Notice and
the denominator of which is the total number of shares of Series A Preferred
held by such Initiating Holders.
"Person" or "person" means an individual, partnership, corporation,
limited liability company or partnership, trust, unincorporated organization,
joint venture, government (or agency or political subdivision thereof) or any
other entity of any kind.
"Qualifying Offering" has the meaning provided in the Stockholders'
Agreement.
"Regulatory Problem" has the meaning provided in the Stockholders'
Agreement.
"Sale of the Company" has the meaning provided in the Stockholders'
Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and the rules and regulations promulgated thereunder.
"Stockholders' Agreement" means the Amended and Restated Stockholders'
Agreement effective as of November 28, 2000 by and among the Corporation and its
stockholders as in effect on the date hereof, in the form attached hereto as
Exhibit A.
"Tax" or "Taxes" means all Federal, state, local or foreign net or
gross income, gross receipts, net proceeds, sales, use, ad valorem, value added,
franchise, bank
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shares, withholding, payroll, employment, excise, property, alternative or
add-on minimum, environmental or other taxes, assessments, duties, fees, levies
or other governmental charges of any nature whatever, whether disputed or not,
together with any interest, penalties, additions to tax or additional amounts
with respect thereto.
(2) The following terms, when used in this Certificate of Incorporation,
shall have the meanings provided for such terms in the Sections set forth below
(such definitions to be equally applicable to both singular and plural forms of
the terms defined):
Section (Part)
Term of Article FOURTH
Class A Common preamble
Class B Common preamble
Common Stock preamble
Conversion Event 6(c)(Part II)
Date of Issuance 1(c) (Part III)
Designated Shares 6 (Part III)
Dividend Payment Date 3(b) (Part III)
Dividend Period 3(b) (Part III)
Dividend Rate 3(b) (Part III)
Exchange Date 6 (Part III)
Exchange Offer 6 (Part III)
Exchange Period 6 (Part III)
Initiating Holders definition of Exchange Notice
Junior A Stock 3(e)(Part III)
Junior Debenture Exchange Notice 6 (Part III)
Junior Debenture Value 6 (Part III)
Junior Debentures 6 (Part III)
New Preferred Stock preamble
Offeree definition of Exchange Notice
Preferred Liquidation Value 3(d) (Part III)
Preferred Stock preamble
Redemption Date 4(a) (Part III)
Redemption Event 4(a) (Part III)
Redemption Price 4(a) (Part III)
Retained Exchange Shares 6 (Part III)
Retained Exchange Share Notice 6 (Part III)
Retained Junior Debentures 6 (Part III)
Sale Debentures 6 (Part III)
Series A-1 Common preamble
Series A-2 Common preamble
Series A-3 Common preamble
Series A-4 Common preamble
Series A Preferred preamble
Series B-1 Common preamble
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Series B-2 Common preamble
Series B-3 Common preamble
Series B-4 Common preamble
Series I Common preamble
Series II Common preamble
Special Redemption 4(d) (Part III)
Stated Value 1(c) (Part III)
PART II
COMMON STOCK
The powers and rights of the shares of each class (and series) of Common
Stock, and the qualifications, limitations or restrictions thereof, are set
forth in this Part II.
(1) Voting Rights Generally.
(a) Except as expressly provided herein or as required under the GCL,
on all matters to be voted on by the Corporation's stockholders, (i) each holder
of record of shares of Class A Common will be entitled to one vote per share so
held and (ii) holders of record of shares of Class B Common will be entitled to
no voting rights.
(b) Except as expressly required under the GCL, on any matter on which
holders of shares of Class B Common shall be entitled to vote, they shall be
entitled to one vote per share, voting together as a single class with the
holders of shares of the Class A Common.
(2) Voting Rights of the Board of Directors. The holders of shares of the
classes and series of Common Stock shall have the right to elect members of the
Board of Directors, and the Board of Directors shall vote on matters as
described below:
(i) The Board of Directors shall have such number of members as
may be determined by the Board of Directors, except that it shall have no less
than five (5) members and such determination shall be subject to any rights to
designate members of the Board of Directors provided to holders of New Preferred
Stock in the resolution or resolutions providing for the issuance of such New
Preferred Stock adopted by the Board of Directors. Subject to the terms of the
Stockholders' Agreement, the members of the Board of Directors shall act by the
affirmative vote of directors on the Board of Directors having a majority of the
votes entitled to be cast at a meeting at which a quorum is present. The Board
of Directors may also take action by the unanimous written consent of the
directors.
(ii) The holders of the shares of the Class A Common, voting
together as a single class, shall be entitled to elect the members of the Board
of Directors by the plurality vote of the holders of such issued and outstanding
shares, subject, however, to any rights to designate members of the Board of
Directors provided to holders of New Preferred Stock in the resolution or
resolutions providing for the issuance of such New Preferred Stock adopted by
the Board of Directors.
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(3) Dividends. When and as dividends are declared or paid on shares of
Common Stock, whether in cash, property or securities, each holder of record of
shares of Common Stock will be entitled to a ratable portion of such dividend,
based upon the number of shares of Common Stock then held of record by each such
holder; provided that if dividends are declared in shares of Common Stock, such
dividends will be declared and paid at the same rate per share on each class (or
series) of Common Stock, and, unless the Corporation obtains the prior
affirmative vote or written consent of at least fifty-one percent (51%) of the
issued and outstanding shares of each class (or series) of Common Stock,
dividends payable in shares of a specific class (or series) of Common Stock will
be payable only to holders of that particular class (or series) of Common Stock;
provided, further, that any dividend or distribution payable to one class (or
series) of Common Stock entitles the other class (or series) of Common Stock to
the same form and distribution amount (except as provided for in (b) below) on
the same date, and (b) if the dividends consist of voting securities of the
Corporation, the Corporation will make available to each holder of Class B
Common, at such holder's request, dividends consisting of non-voting securities
of the Corporation, which are otherwise identical to the voting securities and
which are convertible into or exchangeable for such voting securities on the
same terms as the shares of Class B Common are convertible into the shares of
Class A Common.
(4) Stock Splits; Combinations. If the Corporation, in any manner,
subdivides or combines (by stock split, stock dividend or otherwise) the issued
and outstanding shares of any class or series of Common Stock, the issued and
outstanding shares of each of the other classes and series of Common Stock will
be proportionately subdivided or combined, unless the Corporation obtains the
prior affirmative vote or consent of the holders of all of the issued and
outstanding shares of the Class A Common and the Class B Common voting together
as a single class.
(5) Liquidation.
(a) Ratable Participation. The holders of the Common Stock will be
entitled to share ratably, on the basis of the number of shares of Common Stock
then held by each such holder, in all distributions to the holders of the Common
Stock in any liquidation, dissolution or winding-up of the Corporation.
(b) Mergers, etc. Neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other consideration) of all
or substantially all the property or assets of the Corporation nor the
consolidation, merger or other business combination of the Corporation with or
into one or more corporations shall be deemed to be a liquidation, dissolution
or winding-up, voluntary or involuntary, of the Corporation.
(6) Conversion.
(a) Optional Conversion of Class A Common. Each share of (I) Series A-1
Common is convertible into one share of Series B-1 Common, (II) Series A-2
Common is convertible into one share of Series B-2 Common, (III) Series A-3
Common
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is convertible into one share of Series B-3 Common, (IV) Series A-4 Common is
convertible into one share of Series B-4 Common and (V) Series I Common is
convertible into one share of Series II Common, in each case at the option of
the holder thereof in the event that the holder thereof has determined that it
(or its Affiliates, other than the Corporation) might be subject to a Regulatory
Problem or an Accounting Determination as a result of its holdings of shares of
any series of Class A Common.
(b) Optional Conversion of Class B Common. Each share of (I) Series B-1
Common Stock is convertible into one share of Series A-1 Common, (II) Series B-2
Common is convertible into one share of Series A-2 Common, (III) Series B-3
Common is convertible into one share of Series A-3 Common, (IV) Series B-4
Common is convertible into one share of Series A-4 Common and (V) Series II
Common is convertible into one share of Series I Common, in each case at the
option of the holder thereof, so long as the holder thereof has determined that
none of it or its Affiliates, other than the Corporation, will be subject to a
Regulatory Problem or an Accounting Determination as a result of its holdings of
shares of any series of Class A Common.
(c) Automatic Conversion. Upon the consummation of a Qualifying
Offering or of a Sale of the Company (a "Conversion Event") (i) each share of
Series A-1 Common, Series A-2 Common, Series A-3 Common and Series A-4 Common
shall be automatically converted into one fully paid and non-assessable share of
Series I Common and (ii) each share of Series B-1 Common, Series B-2 Common,
Series B-3 Common and Series B-4 Common shall be automatically converted into
one fully paid and non-assessable share of Series II Common.
(d) Conversion Procedure.
(i) Each conversion pursuant to Section 6(a) or 6(b) of this Part
II of shares of one series of Class A Common (or series of Class B Common, as
the case may be) into the shares of the corresponding series of Class B Common
(or Class A Common, as the case may be) will be effected by the surrender of the
certificate or certificates representing the shares to be converted at the
principal office of the Corporation at any time during normal business hours,
together with written notice by the holder of such shares stating (x) that the
holder desires to convert the shares, or a stated number of the shares, of a
series of Class A Common or series of Class B Common (as the case may be), (y)
with respect to any conversion of one or more series of Class A Common into one
or more series of Class B Common, that such holder has determined that such
conversion is because of a Regulatory Problem or an Accounting Determination and
(z) with respect to any conversion of one or more series of Class B Common into
one or more series of Class A Common, that such holder has determined that such
conversion will not result in a Regulatory Problem or an Accounting
Determination for any of such holder or its Affiliates (other than the
Corporation).
(ii) Each conversion pursuant to Section 6(a) or 6(b) of this Part
II will be deemed to have been effected as of the close of business on the date
on which such certificate or certificates were surrendered and such notice was
received. Each automatic conversion pursuant to Section 6(c) of this Part II
will be deemed to have
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been effected as of the closing of the Qualifying Offering or the date upon
which the Sale of the Company occurs (as the case may be). At such time the
rights of the holder of the converted Common Stock as such holder will cease and
the person or persons in whose name or names the certificate or certificates for
shares of such other class of Common Stock are to be issued upon such conversion
will be deemed to have become the holder or holders of record of the shares of
such other class of Common Stock represented thereby.
(iii) Following each surrender of certificates and the receipt of such
written notice, the Corporation will issue and deliver in accordance with the
surrendering holder's instructions (A) the certificate or certificates for the
class of Common Stock issuable upon such conversion and (B) a certificate
representing any Common Stock which was represented by the certificate or
certificates delivered to the Corporation in connection with such conversion but
which was not converted.
(iv) The Corporation will at all times reserve and keep available out
of its authorized but unissued shares of each series of Class A Common and each
series of Class B Common the number of such shares sufficient for issuance upon
conversion of any series of Class A Common and Class B Common hereunder.
(v) The Corporation will not close its books against the transfer of
any class (or series) of Common Stock in any manner which would interfere with
the timely conversion of any class (or series) of Common Stock.
(vi) The Corporation shall not issue any shares of Series A-1 Common,
Series A-2 Common, Series A-3 Common, Series A-4 Common, Series B-1 Common,
Series B-2 Common, Series B-3 Common or Series B-4 Common following the
occurrence of a Conversion Event.
(vii) Prior to the occurrence of a Conversion Event, the Corporation
shall not issue any shares of Series I Common or Series II Common.
(7) Merger Consideration. Without the prior consent of the holders of at
least fifty-one percent (51%) of the shares of each class (and series) of Common
Stock, the Corporation will not merge, consolidate or effect a recapitalization
unless, in connection with any such merger, consolidation or recapitalization in
which holders of any class or series of Common Stock generally receive, or are
given the opportunity to receive, consideration for their shares, all holders of
all classes or series of Common Stock shall be given the opportunity to receive
the same form and amount of consideration per share.
PART III
PREFERRED STOCK
(1) Designation.
(a) Series A Preferred. One class of Preferred Stock is hereby created
with the designations, powers, preferences and rights set forth herein. The
Corporation is
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authorized to issue a class of Preferred Stock designated as "Series A Preferred
Stock" consisting of 500,000 shares.
(b) New Preferred Stock. The Board of Directors is authorized to issue,
in one or more series, shares of New Preferred Stock. The New Preferred Stock
shall have voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights, and qualifications, or restrictions thereof, as shall be stated and
expressed in a resolution or resolutions providing for the issuance of such New
Preferred Stock adopted by the Board of Directors.
(c) Stated Value; Date of Issuance. The shares of Series A Preferred
shall have a stated value of (i) $100 for the Series A Preferred (the "Stated
Value"). No shares of Series A Preferred will be issued except as part of the
original issuance thereof. The date on which the Corporation initially issues
any share of Preferred Stock will be deemed its "Date of Issuance" regardless of
the number of times transfer of such share is made on the stock records of the
Corporation and regardless of the number of certificates which may be issued to
evidence such share.
(d) Ranking. For so long as any shares of Series A Preferred are issued
and outstanding, the Corporation will not issue any series of Preferred Stock
which will be senior or pari passu with respect to payment of dividends, other
distributions, preference on redemption or liquidation rights or otherwise;
provided, however, that more than fifty-one percent (51%) (in accordance with
Section 2 of this Part III) of the holders of the shares of Series A Preferred,
voting separately as a class, may consent to the issuance of Preferred Stock
ranking senior or pari passu to the Series A Preferred.
(2) Voting.
(a) No Voting Rights Generally. Except as otherwise provided
specifically herein or required by law, none of the shares of Series A Preferred
shall have any voting rights.
(b) Series A Preferred Consent Required. For so long as shares of
Series A Preferred are issued and outstanding, the affirmative vote or consent
of the holders of more than fifty-one percent (51%) of all of the shares of
Series A Preferred at the time issued and outstanding, voting separately as a
class, given in person or by proxy either in writing (as may be permitted by law
and the Certificate of Incorporation and By-laws of the Corporation) or at any
special or annual meeting, shall be necessary to permit, effect or validate the
taking of any of the following actions by the Corporation, whether such actions
are effected directly or through a merger or another transaction (provided that,
no such affirmative vote or consent shall be required in connection with a
merger or other transaction which would result in a Sale of the Company,
including any merger or other transaction to be effected pursuant to the
exercise of the Drag-Along Right, as such term is defined in the Stockholders'
Agreement, so long as prior to or simultaneously with completion of that
transaction, the Series A Preferred will be redeemed in full):
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(i) the amendment of the Certificate of Incorporation or By-laws
of the Corporation, or the alteration or change of the powers, rights,
privileges or preferences of the Series A Preferred, if such amendment,
alteration or change would adversely affect any of the powers, rights,
privileges or preferences of the holders of the Series A Preferred;
(ii) the authorization of (or issuance of any shares of) any class
of Preferred Stock which ranks senior to or pari passu with the Series A
Preferred with respect to dividends, other distributions or upon redemption,
liquidation, dissolution or winding-up of the Corporation;
(iii) the increase of the number of shares of Series A Preferred
authorized for issuance; or
(iv) the issuance after the Original Closing Date (as such term is
defined in the Stockholders' Agreement) of any shares of Series A Preferred
(excluding the issuance of share certificates upon transfers or exchanges of
shares by holders (other than the Corporation) thereof or upon replacement of
lost, stolen, damaged or mutilated share certificates), except for issuances of
shares of Series A Preferred which have been redeemed or otherwise acquired by
the Company or any of its subsidiaries pursuant to the Stockholders' Agreement
to officers, directors or employees of the Corporation or any of its
subsidiaries.
(3) Dividends; Cash and Stock Dividends.
(a) Dividends will be payable on each share of Series A Preferred, in
cash, as provided herein when, as and if declared by the Board of Directors, to
the extent funds are legally available therefor.
(b) Rates; Dates Payable. Dividends on shares of Series A Preferred
will be payable in cash at a rate per annum equal to 12% of the Preferred
Liquidation Value thereof (the "Dividend Rate"). Such dividends shall be payable
semi-annually on June 30 and December 31 of each year, commencing on June 30,
1997 (each such date hereinafter referred to as a "Dividend Payment Date" and
each such dividend period hereinafter referred to as a "Dividend Period") (or,
if such date is not a Business Day, then on the next succeeding Business Day),
to the holders of record as they appear on the register of the Corporation for
the shares of such Series A Preferred.
(c) The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred entitled to receive payment of the
dividends payable pursuant to Section 3(b), which record date shall not be more
than 60 days prior to the Dividend Payment Date.
(d) Accrual.
(i) Dividends on the shares of Series A Preferred shall accrue
cumulatively on a daily basis and shall accrue from the Date of Issuance to and
including the date on which the redemption of such share of Series A Preferred
shall have been
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effected or on which such share shall have been exchanged for Junior Debentures
pursuant to Section 6 of this Part III or on which full payment with respect to
such share shall have been made pursuant to any liquidation, dissolution or
winding-up of the Corporation, whether or not such dividends have been declared
and whether or not there shall be (at the time such dividends became or become
payable or any other time) profits, surpluses or other funds of the Corporation
legally available for the payment of dividends.
(ii) To the extent not paid on any Dividend Payment Date, all
dividends which have accrued on any share of Series A Preferred then outstanding
during the period from and including the preceding Dividend Payment Date (or
from and including the Date of Issuance in the case of the initial Dividend
Payment Date) to (but excluding) such Dividend Payment Date shall be added on
such Dividend Payment Date to the Preferred Liquidation Value of such share of
Series A Preferred (so that, without limitation, dividends shall thereafter
accrue in respect of the amount of such accrued but unpaid dividends) and shall
remain a part thereof until (but only until) such dividends are paid. The
"Preferred Liquidation Value" of any share of Series A Preferred as of a
particular date shall be equal to the sum of $100 plus an amount equal to any
accrued and unpaid dividends (whether or not earned or declared) on such share
of Series A Preferred added to the Preferred Liquidation Value of such share of
Series A Preferred on any Dividend Payment Date pursuant to this Section 3(d)
and not thereafter paid.
(e) Priority for Series A Preferred. For so long as any shares of
Series A Preferred shall be outstanding, no dividend or distribution, whether in
cash, stock or other property, shall be paid, declared and set apart for payment
or made on any date on or in respect to the Common Stock, or any other class or
series of stock of the Corporation ranking junior to the Series A Preferred
(together with the Common Stock, a "Junior A Stock") as to dividends or
distributions of assets upon liquidation, dissolution or winding up, and no
payment on account of the redemption, purchase or other acquisition or
retirement for value by the Corporation of shares of Common Stock or any other
Junior A Stock shall be made on any date unless, in each case, the full amount
of unpaid dividends accrued on all outstanding shares of Series A Preferred
shall have been paid or contemporaneously are declared and paid; provided,
however, that the foregoing provisions of this sentence shall not prohibit (i) a
dividend payable solely in shares of Common Stock or any other Junior A Stock,
(ii) the acquisition of any shares of any Common Stock or any other Junior A
Stock upon conversion or exchange thereof into or for any shares of any other
class of Common Stock or other Junior A Stock or (iii) the acquisition of any
shares of Common Stock pursuant to the Stockholders' Agreement.
(4) Redemption.
(a) Redemption by the Corporation.
(i) To the extent funds are legally available therefor, on the
earlier of (x) December 31, 2008, or if such date is not a Business Day then on
the next Business Day, and (y) the date on which a Sale of the Company occurs,
the Corporation shall redeem at the Redemption Price therefor all issued and
outstanding shares of Series
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A Preferred (the events described in either clause (x) or (y) are each referred
to herein as a "Redemption Event").
(ii) To the extent funds are legally available therefor, on any
Business Day prior to June 30, 2008, the Corporation, at its option, may redeem
at the Redemption Price therefor all or any portion of the shares of Series A
Preferred then issued and outstanding.
(iii) The date on which shares of Series A Preferred are required
to be redeemed pursuant to this Section 4 is referred to herein as the
"Redemption Date." If, on the Redemption Date, there shall be insufficient funds
of the Corporation legally available for the complete redemption of the Series A
Preferred, such amount of the funds as is legally available shall be used for
the redemption obligation as described in Section 4(d) of this Part III. If the
Corporation shall fail to discharge its obligation to redeem shares of the
Series A Preferred upon the occurrence of a Redemption Event, such obligation
shall be discharged as soon as the Corporation is permitted by law to discharge
such obligations. Such redemption obligation shall be cumulative so that if such
obligation shall not be fully discharged for any reason, all funds legally
available therefor shall immediately be applied thereto upon receipt by the
Corporation until such obligation is discharged. The redemption price (the
"Redemption Price") for each outstanding share of Series A Preferred to be
redeemed pursuant to this Section 4(a) shall be the Preferred Liquidation Value
thereof as of the Redemption Date.
(b) Payment of Redemption Price. Each payment of the Redemption Price
in accordance with Section 4(a)(iii) of this Part III shall be made to the
holder of each share of Series A Preferred being redeemed, upon surrender by
such holder at the Corporation's principal executive office of the certificate
representing such share of Series A Preferred, duly endorsed in blank or
accompanied by an appropriate form of assignment.
(c) Redeemed Shares not to be Reissued. All shares of Series A
Preferred redeemed pursuant to Section 4(a) of this Part III shall be retired
and canceled and shall not thereafter be reissued. This Section shall not apply
to any shares of Series A Preferred which are otherwise redeemed, purchased or
acquired by the Corporation.
(d) Amount of Shares of Series A Preferred Redeemed. The Corporation or
any Subsidiary may acquire shares of the Series A Preferred from time to time as
provided by the terms of the Stockholders' Agreement without redeeming or
otherwise acquiring all or any other issued and outstanding shares of the Series
A Preferred (such acquisition, a "Special Redemption"). Except with respect to
any Special Redemption, if less than all of the issued and outstanding shares of
Series A Preferred are to be redeemed pursuant to this Section 4, the
Corporation shall determine the shares of Series A Preferred held by each holder
of such series to be redeemed as hereinafter provided. The number of shares of
Series A Preferred to be redeemed from each holder thereof shall be the number
of shares determined by multiplying the total number of shares of Series A
Preferred to be redeemed by a fraction, the numerator of which shall be the
total number of shares of Series A Preferred then held by such holder and the
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denominator of which shall be the total number of shares of Series A Preferred
then issued and outstanding.
(e) Notice of Redemption. Notice of the redemption of shares of Series
A Preferred pursuant to Section 4(a) of this Part III, specifying the time and
place of redemption and the Redemption Price, shall be mailed by certified or
registered mail, return receipt requested, to each holder of record of shares to
be redeemed, at the address for such holder shown on the stock records of the
Corporation not less than ten (10) Business Days prior to the date on which such
redemption is to be made; provided, that neither failure to give such notice nor
any defect therein shall affect the validity of the proceeding for the
redemption of any shares of Series A Preferred to be redeemed. Such notice shall
also specify the number of shares of Series A Preferred of each holder thereof
and the certificate numbers thereof which are to be redeemed. In case less than
all the shares of Series A Preferred represented by any certificate are
redeemed, a new certificate representing the unredeemed shares of Series A
Preferred shall be issued to the holder thereof without cost to such holder.
(f) Dividends After Redemption Date. Unless the Redemption Price is not
made available on the Redemption Date to the holder of a share of Series A
Preferred, then from and after the Redemption Date, such share of Series A
Preferred shall not be entitled to any dividends accruing after such date, all
rights of the holder of such share of Series A Preferred as a stockholder of the
Corporation by reason of the ownership of such share of Series A Preferred shall
cease, except the right to receive the Redemption Price of such share of Series
A Preferred upon the presentation and surrender of the certificate representing
such share of Series A Preferred, and such share of Series A Preferred shall not
after such date be deemed to be outstanding for any purpose.
(5) Liquidation Rights.
(a) Preference for Series A Preferred. Upon the dissolution,
liquidation or winding-up of the Corporation, whether voluntary or involuntary,
the holders of issued and outstanding shares of Series A Preferred shall be
entitled to receive for each such share, out of the assets of the Corporation
available for distribution to stockholders, before any payment or distribution
shall be made to the holders of Common Stock or any other Junior A Stock, an
amount per share of Series A Preferred, in cash, equal to the Preferred
Liquidation Value of such shares as of the date of final distribution. If upon
any such dissolution, liquidation or winding-up of the Corporation, the assets
of the Corporation available for distribution to stockholders shall be
insufficient to provide for the payment in full of the preference accorded to
the Series A Preferred hereunder, then such assets shall be distributed ratably
among the shares of Series A Preferred.
(b) Preferences are not Participating. After the payment to the holders
of the shares of Series A Preferred of the full preferential amounts provided
for in Section 5 of this Part II the holders of shares of Series A Preferred
shall have no right or claim to any of the remaining assets of the Corporation.
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(c) Mergers, etc. Neither the sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or
substantially all the property or assets of the Corporation nor the
consolidation, merger or other business combination of the Corporation with or
into one or more corporations shall be deemed to be a liquidation, dissolution
or winding-up, voluntary or involuntary, of the Corporation.
(6) Exchange of Series A Preferred.
(i) During the period of forty-five (45) days (the "Exchange
Period") following the receipt by the Corporation of any Exchange Notice, to the
extent that the Corporation is then permitted by law, the Corporation may elect
to exchange all (but not less than all) of the shares of Series A Preferred
requested to be exchanged in such Exchange Notice and the Exchange Shares
designated to be exchanged in the Additional Exchange Notices furnished with
respect to such Exchange Notice pursuant to Section 6(ii) of this Part III, for
the Corporation's 12% Junior Subordinated Debentures due 2008 in the form
attached hereto as Exhibit B (the "Junior Debentures") in a principal amount for
each such share (the "Junior Debenture Value") equal to the Preferred
Liquidation Value thereof as of the relevant Exchange Date.
(ii) In the event that the Corporation elects to exchange shares
of Series A Preferred after the receipt of an Exchange Notice, the Corporation
shall promptly (and in any event within the Exchange Period) provide notice
thereof to all holders of record of shares of Series A Preferred (other than the
Initiating Holders), such notice (an "Exchange Offer") to:
(A) include a copy of the Exchange Notice,
(B) set forth the number of Exchange Shares held by each
such holder that may be exchanged by the Corporation for Junior Debentures,
(C) request that each such holder furnish an Additional
Exchange Notice indicating (I) the number of Exchange Shares which such holder
requests to be exchanged for Junior Debentures and to be retained by such holder
following such exchange (the "Retained Junior Debentures"), (II) the number of
Exchange Shares which such holder requests to be exchanged for Junior Debentures
and to be sold to the Offeree(s) on the same terms as set forth in the Exchange
Notice (the "Sale Debentures") and (III) the number of Exchange Shares not
designated by such holder as either Retained Junior Debentures or Sale
Debentures (the shares not so designated, the "Retained Exchange Shares") and
which shall be exchangeable by such holder for Junior Debentures pursuant to
clause (vi) of this Section 6.
Any holder may deliver an Additional Exchange Notice specifying the number of
the Retained Junior Debentures, the Sale Debentures and the Retained Exchange
Shares to the Corporation within fifteen (15) days of the giving of the related
Exchange Offer. Any request to exchange Exchange Shares pursuant to an
Additional Exchange Notice shall be irrevocable. An offer set forth in an
Exchange Notice may only be accepted in an
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Additional Exchange Notice which is timely given in accordance with the
provisions of Section 6 of this Part II.
(iii) Within ten (10) days after the expiration of the fifteen (15) day
period in which an Additional Exchange Notice is required to be delivered, the
Corporation shall give written notice to the holders of shares of Series A
Preferred (a "Junior Debenture Exchange Notice"), setting forth the number of
shares of Series A Preferred to be so exchanged (the "Designated Shares") and
the date of the closing of the exchange (the "Exchange Date"). Such Junior
Debenture Exchange Notice shall be irrevocable. The closing shall take place on
the Exchange Date at the principal executive office of the Corporation or at
such other place as shall be stated in the Junior Debenture Exchange Notice.
(iv) On the Exchange Date, (A) all rights of the exchanging holder with
respect to the Designated Shares shall cease and such Designated Shares shall be
deemed retired and canceled, (B) the holders who have elected in an Additional
Exchange Notice to exchange Exchange Shares for Retained Junior Debentures shall
be entitled to receive the Retained Junior Debentures in an aggregate principal
amount equal to the Junior Debenture Value thereof and (C) the Offeree or
Offerees identified in the Exchange Notice shall be entitled to receive Sale
Debentures in an aggregate principal amount equal to the Junior Debenture Value
of the Exchange Shares to be exchanged for Sale Debentures.
(v) On the Exchange Date, the exchanging holders shall deliver the
shares of Series A Preferred to be exchanged, free and clear of any Liens (as
defined in the Stockholders' Agreement), the Offeree(s) shall pay to the
Corporation, as agent for such holders, the purchase price for the Sale
Debentures (which shall be promptly paid by the Corporation to the exchanging
holders who are selling Sale Debentures), and the Corporation shall issue the
Sale Debentures to the Offeree(s) and the Retained Junior Debentures in
accordance with the preceding clause (iv).
(vi) Each holder of Retained Exchange Shares may, from time to time,
upon thirty (30) days prior written notice to the Corporation (a "Retained
Exchange Share Notice") setting forth the number of Retained Exchange Shares
(which shall not be less than the lesser of (x) 5,000 Retained Exchange Shares
or (y) the total number of Retained Exchange Shares then held by such holder)
designated for exchange, require the Corporation to exchange the Retained
Exchange Shares so designated for Junior Debentures in an aggregate principal
amount equal to the Junior Debenture Value of such Retained Exchange Shares. To
the extent then permitted by law and under any agreement governing indebtedness
of the Corporation or its subsidiaries for borrowed money, the Corporation shall
issue the Junior Debentures in respect of such Retained Exchange Shares on or
before the fifteenth (15th) Business Day following the giving of the Retained
Exchange Share Notice against delivery by such holder of certificates
representing the Retained Exchange Shares being exchanged to the Corporation at
its principal executive office. If the Corporation shall fail to discharge its
obligation to so exchange Retained Exchange Shares, the Corporation from time to
time shall, to the extent then so permitted by law or otherwise under any
agreement governing
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indebtedness of the Corporation or its subsidiaries for borrowed money, issue
Junior Debentures in an aggregate principal amount equal to the Junior Debenture
Value of the Retained Exchange Shares to be exchanged therefor. Such obligation
shall be discharged to the fullest extent not later than the tenth (10th)
Business Day after the Board of Directors shall have determined in good faith
that it is permitted by law and under the terms of agreements to discharge such
obligation, if any.
FIFTH: The Corporation shall be entitled to treat the person in whose
name any shares of its capital stock are registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to, or
interest in, such shares on the part of any other person, whether or not the
Corporation shall have notice thereof, except as required by applicable law.
SIXTH: The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
SEVENTH: Terms used in this Article SEVENTH which are not otherwise
defined in this Certificate of Incorporation are used as defined in the
Stockholders' Agreement. So long as the Institutional Stockholders have the
right to designate directors under Section 5.1(a) of the Stockholders'
Agreement, and are designating such directors, (x) the Corporation (and each of
its Subsidiaries) shall not enter into a Significant Transaction without a prior
Institutional Affirmative Board Vote and (y) at least one Institutional Director
is required to be in attendance at any meeting of the Board of Directors in
order for a quorum to exist.
EIGHTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, alter, amend
or repeal the By-Laws of the Corporation.
NINTH: To the fullest extent permitted by the GCL as the same exists or
may hereafter be amended, a person who is or was a director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. If the GCL is amended after the date
of filing of this Certificate of Incorporation to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a person who is or was a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the GCL, as so amended
from time to time. No repeal or modification of this Article NINTH by the
stockholders shall adversely affect any right or protection of a person who is
or was a director of the Corporation existing by virtue of this Article NINTH at
the time of such repeal or modification.
TENTH: Except as set forth herein, the Corporation reserves the right
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred on stockholders herein are granted subject to this reservation.
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ELEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws of the Corporation may provide. The books of
the Corporation may be kept (subject to any provision contained in applicable
law) outside the State of Delaware at such place as may be designated from time
to time by the Board of Directors or in the By-Laws of the Corporation. Any
document or agreement which is, or has terms which are, incorporated by
reference herein, including without limitation the Stockholders' Agreement,
shall be available for inspection by any stockholder of the Corporation at the
principal executive office of the Corporation. Copies of any such document or
agreement will be furnished by the Corporation to any such stockholder at the
Corporation's expense.
TWELFTH: Any notice required by the provisions of this Certificate of
Incorporation shall be in writing and shall be deemed given upon delivery, if
delivered personally, or by a recognized commercial courier postage prepaid with
receipt acknowledged, or upon the expiration of one hundred twenty (120) hours
after the same has been deposited in the United States mail, by certified or
registered mail, return receipt requested, postage prepaid, and addressed, in
the case of a notice to any holder of shares of capital stock of the
Corporation, to such holder as such holder's address appears on the books of the
Corporation, or in the case of a notice to the Corporation, at its principal
executive office. Neither the failure to mail any such notice to any particular
holder nor any defect in any such notice shall affect the sufficiency of notice
with respect to any other Person.
THIRTEENTH: The Corporation expressly elects not to be governed by
Section 203 of the GCL.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed by its this day of
March, 2001.
MSX INTERNATIONAL, INC.
By:
----------------------------------
Name:
Title:
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