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EXHIBIT 3.2
RESTATED CERTIFICATE OF INCORPORATION
OF
MS ACQUISITION CORP.
MS ACQUISITION CORP., 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 MS ACQUISITION CORP. (the
"Corporation"). The Corporation was originally incorporated under the name PWC
Acquisition Corp., and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
May 2, 1986 being thereafter amended and restated.
2. This Restated Certificate of Incorporation (i) has been adopted
in accordance with the provisions of Section 228 (with the written consent of
the stockholders of the Corporation), 242 and 245 of the GCL and (ii) amends,
restates and integrates the provisions of the 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 MS Acquisition Corp.
(hereinafter the "Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
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 12,293,123.320 shares, consisting
of 10,000,000 shares of Common Stock, par value $.01 per share (the "Common
Stock"); and 2,293,123.320 shares of Preferred Stock, par value $.01 per share
(the "Preferred Stock"). Shares of the Corporation's Series A Preferred Stock,
par value $.01 per share (the "Old Series A Preferred"), Series B
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Preferred Stock, par value $.01 per shares (the "Old Series B Preferred", and
collectively with the Old Series A Preferred, the "Old Preferred Stock"), Class
A Common Stock, par value $.01 per share (the "Old Class A Common"), and Class B
Common Stock, par value $.01 per share (the "Old Class B Common", and
collectively with the Old Class A Common, the "Old Common Stock"), which are
issued and outstanding immediately prior to the filing of this Restated
Certificate of Incorporation shall be reclassified as set forth below. The
Common Stock will consist of two classes of Common Stock as follows:
(i) 5,000,000 shares of Class A Common Stock, par value $.01
per share (the "Class A Common");
(ii) 5,000,000 shares of Class B Common Stock, par value $.01
per share (the "Class B Common").
The Preferred Stock will consist of:
(i) 293,123.320 shares of a Class of Preferred Stock
constituting Series A Preferred Stock, par value $.01 per
share (the "Series A Preferred Stock"); and
(ii) 2,000,000 shares of a class of Preferred Stock constituting
New Preferred Stock, par value $.01 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(b) of Part III of Article FOURTH (the "New
Preferred Stock").
Upon the effectiveness of this Certificate of Incorporation, each
share of Old Class A Common Stock, Old Class B Common Stock and Old Preferred
Stock issued and outstanding immediately prior to the filing of this Certificate
of Incorporation shall be changed and reclassified into .34217407 shares of
Class A Common , 1.75384365 shares of Class B Common and .26776881 shares of
Series A Preferred.
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):
"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
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"controlled by" and "under common control with"), as used with respect to any
Person, shall mean 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.
"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" means, with respect to any stockholder, any set of
facts or circumstances wherein such stockholder has made a determination that
(i) such stockholder or such stockholder's Affiliates own, control or have
certain power over a quantity of securities of any kind issued by the
Corporation which exceeds any limitation to which it is (or they are) subject,
or which is otherwise not permitted, under any law, rule or regulation of any
governmental authority (including any position to that effect taken by such
governmental authority) or (ii) that restrictions are imposed on such
stockholder as a result of any law, regulation, rule or directive (whether or
not having the force of law) of any governmental or regulatory authority which
make it illegal or unduly burdensome for such stockholder or such stockholder's
Affiliates to continue to own, control or have such power over any securities of
any kind issued by the Corporation.
"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 Stockholders Agreement dated as of
August 13, 1996 by and among the Corporation and its stockholders, as in effect
on the date of execution thereof.
"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 shares, withholding, payroll, employment, excise, property,
alternative or ad-on minimum, environmental or other taxes, assessments, duties,
fees, levies or other governmental
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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
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Class A Common preamble
Class B Common preamble
Common Stock preamble
Conversion Price 6(a) (Part III)
Corporation preamble
Date of Issuance 1(c) (Part III)
Dividend Payment Date 2(a) (Part III)
Dividend Period 2(a) (Part III)
Dividend Rate 2(a) (Part III)
GCL preamble
Junior A Stock 2(c)(Part III)
New Preferred Stock preamble
Old Class A Common preamble
Old Class B Common preamble
Old Common Stock preamble
Old Preferred Stock preamble
Old Series A Preferred preamble
Old Series B Preferred preamble
Old Stock preamble
Optional Conversion 6(a) (Part III)
Organic Change 7(a) (Part III)
Parity Securities 2(d) (Part III)
Preferred Liquidation Value 2(b) (Part III)
Preferred Stock preamble
Redemption Date 3(a) (Part III)
Redemption Price 3(a) (Part III)
Series A Preferred preamble
Share 1(c) (Part III)
Stated Value 1(c) (Part III)
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II. COMMON STOCK
Except as otherwise provided herein or as otherwise required by
applicable law, all shares of Common Stock will be identical in all respects and
will entitle the holders thereof to the same rights and privileges.
(1) Voting Rights.
(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
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 Class B Common shall be entitled to vote, they
shall be entitled to one vote per share and shall vote together as a
single class with the holders of the Class A Common.
(2) 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 (a) 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 of Common Stock, and, unless the
Corporation obtains the prior affirmative vote or written consent of at
least ninety-five percent (95%) of the issued and outstanding shares of
each class of Common Stock, dividends payable in shares of a specific class
of Common Stock will be payable only to holders of that particular class of
Common Stock; provided, further, that any dividend or distribution payable
to one class of Common Stock entitles the other class 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.
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(3) Stock Splits; Combinations. If the Corporation, in any manner,
subdivides or combines (by stock split, stock dividend or otherwise) the
outstanding shares of one class of Common Stock, the issued and outstanding
shares of the other class 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 Class A Common and
Class B Common voting together as a single class.
(4) 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.
(5) Conversion.
(a) Optional Conversion of Class A Common. Each share of Class A
Common is convertible into one share of Class B Common 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 as a result of its holdings of shares of any Class A Common.
(b) Optional Conversion of Class B Common. Each share of Class B
Common is convertible into one share of Class A 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 as a result of its holdings of shares of Class A Common.
(c) Conversion Procedure.
(i) Each conversion of shares of one class of Common Stock into
shares of another class of Common Stock 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,
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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
class of Common Stock represented by such certificate or certificates into such
other class of Common Stock, (y) with respect to any conversion of shares of
Class A Common into Class B Common, that such holder has determined that such
conversion is necessary because of a Regulatory Problem and (z) with respect to
any conversion of Class B Common into Class A Common, that such holder has
determined that such conversion will not result in a Regulatory Problem for any
of such holder or its Affiliates (other than the Corporation). Each conversion
pursuant to Section 5(a) or 5(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. 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.
(ii) 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.
(iii) The issuance of certificates for a class of Common Stock
upon conversion of any class of Common Stock will be made without charge to the
holders of such shares for any issuance tax in respect thereof or other cost
incurred by the Corporation in connection with such conversion and the related
issuance of such other class of Common Stock.
(iv) The Corporation will at all times reserve and keep
available out of its authorized but unissued shares of Class A Common and Class
B Common the number of such shares sufficient for issuance upon conversion of
any class of the Common Stock hereunder.
(v) The Corporation will not close its books against the
transfer of any class of Common Stock in any manner which would interfere with
the timely conversion of any class of Common Stock.
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(6) Registration of Transfer. The Corporation will keep at its principal
office (or such other place as the Corporation reasonably designates) a register
for the registration and transfer of shares of Common Stock. Upon the surrender
of any certificate representing shares of any class of Common Stock at such
place, the Corporation will, at the request of the registered holder of such
certificate, execute and deliver a new certificate or certificates in exchange
therefor representing in the aggregate the number of shares of such class
represented by the surrendered certificate, and the Corporation forthwith will
cancel such surrendered certificate. Each such new certificate will be
registered in such name and will represent such number of shares of such class
as is requested by the holder of the surrendered certificate and will be
substantially identical in form to the surrendered certificate.
(7) Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder will be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing one or more shares of any class of Common Stock, and in the case of
any such loss, theft or destruction, upon receipt of the indemnity reasonably
satisfactory to the Corporation (provided that if the holder is a financial
institution or other institutional investor its own agreement will be
satisfactory with the approval of the Board of Directors or the Corporation),
or, in the case of any such mutilation upon surrender of such certificate, the
Corporation will (at its expense) execute and deliver in lieu of such
certificate a new certificate of like kind representing the number of shares of
such class represented by such lost, stolen, destroyed or mutilated certificate
and dated the date of such lost, stolen, destroyed or mutilated certificate.
(8) Amendment and Waiver. No amendment or waiver of any provision of this
Article Fourth will be effective without the prior approval of the holders of a
majority of the then outstanding Common Stock voting as a single class and the
holders of a majority of the then outstanding Class B Common voting as a single
class.
(9) Merger Consideration. Without the prior affirmative vote or written
consent of the holders of at least ninety-five percent (95%) of each class of
Common Stock, the Corporation will not merge, consolidate or effect a
recapitalization, unless, in connection with any merger, consolidation or
recapitalization in which holders of either class of Common Stock generally
receive, or are given the opportunity to receive, consideration for their
shares, all holders of all classes of Common Stock shall be given the
opportunity to receive the same form and amount of consideration per share.
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III. PREFERRED STOCK
(1) Designation.
(a) Series A Preferred Stock. One class of Preferred Stock is
hereby created with the designations, powers, preferences and rights set forth
herein. The Corporation is authorized to issue a class of Preferred Stock
designated as "Series A Preferred Stock" consisting of 293,123.320 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. The authority of
the Board of Directors with respect to the New Preferred Stock or any class or
series thereof shall include, without limitation of the foregoing, the right to
determine or fix:
(i) the distinctive designation of such class or series,
the number of shares which constitute such class or series and the stated value
thereof if different from the par value thereof;
(ii) the rate (or method of determining such rate), if any,
at which dividends on the shares of such class or series shall be declared and
paid, or set aside for payment, whether dividends at the rate so determined
shall be cumulative or accruing, and whether the shares of such class or series
shall be entitled to any participating or other dividends in addition to
dividends at the rate so determined, and if so, on what terms;
(iii) the right or obligation, if any, of the Corporation to
redeem shares of a particular class or series of New Preferred Stock and, if
redeemable, the price, terms and manner of such redemption;
(iv) the special and relative rights and preferences, if
any, and the amount or amounts per share, which the shares of any class or
series of New Preferred Stock shall be entitled to receive upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation;
(v) the terms and conditions, if any, upon which shares
of any class or series shall be convertible into, or exchangeable for, shares of
capital stock of any other class or series of stock of the Corporation or of any
other entity, including the price or prices or the rate or rates of conversion
or exchange and the terms of adjustment, if any;
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(vi) the obligation, if any, of the Corporation to retire,
redeem or purchase shares of such class or series pursuant to a sinking fund or
fund of a similar nature or otherwise, and the terms and conditions of such
obligation;
(vii) voting rights, if any, in addition to any voting
rights provided by law, and, if so, the terms of such voting rights which may be
special voting rights and the preference or relation which such voting rights
shall bear to the voting rights of any class of capital stock or other series of
New Preferred Stock;
(viii) limitations, if any, on the issuance of shares of
any New Preferred Stock or series of New Preferred Stock; and
(ix) such other preferences, powers, qualifications,
special or relative rights and privileges thereof as the Board of Directors,
acting in accordance with this Certificate of Incorporation, may deem advisable
and are not inconsistent with law and the provisions of this Certificate of
Incorporation.
(c) Stated Value; Date of Issuance. The shares of Series A
Preferred Stock (individually, a "Share" and, collectively, the "Shares") shall
each have a stated value of $100 per share for the Series A Preferred Stock (the
"Stated Value"). No Shares shall be issued except as part of the original
issuance thereof. The date on which the Corporation initially issues any Share
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 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 a majority of the holders of the Shares, voting as a
series, may consent to the issuance of Preferred Stock ranking senior or pari
passu to the Series A Preferred Stock; provided, further, that any holder of the
Series A Preferred Stock who will also hold (or if any of said holders,
Affiliates, associates, employees or designees who will hold) the Preferred
Stock ranking senior or pari passu with the Series A Preferred Stock will not be
entitled to vote as a holder of Series A Preferred Stock for the purpose of
consenting to the creation of Preferred Stock ranking senior or pari passu with
the Series A Preferred Stock.
(2) Dividends.
(a) Rates; Dates Payable. When, as and if declared by the
Board of Directors, to the extent funds are legally available therefor,
dividends will be payable on each Share, in cash, as provided herein. Dividends
on the Shares will be payable at a rate per annum equal to 11% of the Stated
Value thereof (the "Dividend Rate"). Such
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dividends shall be payable semi-annually on the 13th day of February and August
of each year, commencing on February 13, 1997 (each such date hereinafter
referred to as a "Dividend Payment Date" and each such dividend period
hereinafter referred to as a "Dividend Period"), except that if such date is not
a Business Day, then such dividend shall be payable on the next succeeding
Business Day, to the holders of record as they appear on the register of the
Corporation for the Shares.
(b) Accrual.
(i) Dividends on the Shares 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 Shares shall
have been effected or on which full payment with respect to such
Shares 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 Series A Preferred Stock
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
Series A Preferred Stock (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 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 added
to the Preferred Liquidation Value of such Share on any Dividend
Payment Date pursuant to this Section (2)(b) and not thereafter
paid.
(c) Priority for Series A Preferred Stock. For so long as any
Shares 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 Stock
(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
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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 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.
(d) Pro Rata. If the Corporation pays any dividend on the Series A
Preferred Stock which is less than the total amount of accrued and unpaid
dividends on such series, such payment will be distributed ratably among the
holders of such series and among the holders of any class or series of capital
stock of the Corporation ranking pari passu with respect to dividends and
liquidation preference ("Parity Securities") based on the aggregate accrued but
unpaid dividends on the Shares and the Parity Securities held by each such
holder.
(e) The Board of Directors may fix a record date for the
determination of holders of Shares entitled to receive payment of the dividends
payable pursuant to Section 2(a) of this Part III, which record date shall not
be more than sixty (60) days prior to the Dividend Payment Date.
(3) Redemption.
(a) Redemption by Corporation. To the extent funds are legally
available therefor, on the earlier of (i) February 13, 2007, or if such date is
not a Business Day then on the next Business Day, or (ii) the date on which a
Sale of the Company occurs, the Corporation shall redeem at the Redemption Price
therefor all issued and outstanding Shares. On any Business Day prior to
February 13, 2007, the Corporation, at its option, may redeem at the Redemption
Price therefor the Shares. The date on which Shares are redeemed pursuant to
this Section 3(a) of Part III is referred to herein as the "Redemption Date."
If on the Redemption Date there shall be insufficient funds of the Corporation
legally available for such redemption, such amount of the funds as is legally
available shall be used for the redemption requirement as described in Section
3(a)(i) and (ii) of this Part III. Such redemption requirement shall be
cumulative so that if such requirement shall not be fully discharged for any
reason, funds legally available therefor shall immediately be applied thereto
upon receipt by the Corporation until such requirement is discharged.
The redemption price (the "Redemption Price") for each outstanding
Share to be redeemed pursuant to this Section 3(a) of Part III shall be the sum
of (i) the Stated
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Value thereof plus (ii) an amount equal to all accrued and unpaid dividends
thereon to the Redemption Date.
(b) Payment of Redemption Price. On the Redemption Date, the
Corporation shall pay to the holder of each Share being redeemed, upon surrender
by such holder at the Corporation's principal executive office of the
certificate representing such Share, duly endorsed in blank or accompanied by an
appropriate form of assignment, the Redemption Price.
(c) Redeemed or Otherwise Acquired Shares not to be Reissued. All
Shares redeemed pursuant to this Section 3 of Part III or otherwise acquired by
the Corporation shall be retired and shall not thereafter be reissued.
(d) Determination of Number of Each Holder's Shares to be Redeemed.
If less than all of the outstanding Shares are to be redeemed pursuant to
Section 3(a) of this Part III, the Corporation shall determine the Shares held
by each holder to be redeemed as hereinafter provided. The number of Shares to
be redeemed from each holder thereof shall be the number of Shares determined by
multiplying the total number of Shares to be redeemed by a fraction, the
numerator of which shall be the total number of Shares then held by such holder
and the denominator of which shall be the total number of Shares then
outstanding.
(e) Notice of Redemption. Notice of the redemption of Shares
pursuant to Section 3(a) of this Part III, specifying the time and place of
redemption and the Redemption Price, shall be given 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 fifteen (15) 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 to be redeemed. Such notice shall also specify the
number of Shares of each holder thereof and the certificate numbers thereof
which are to be redeemed. In case less than all the Shares represented by any
certificate are redeemed, a new certificate representing the unredeemed Shares
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 to the holder of a Share, then from and after its Redemption
Date, no Share shall be entitled to any dividends accruing after such date, all
rights of the holder of such Share, as a stockholder of the Corporation by
reason of the ownership of such Share, shall cease, except the right to receive
the Redemption Price of such Share upon the presentation and surrender of the
certificate representing such Share, and such Share shall not after such date be
deemed to be outstanding for any purpose.
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(4) Liquidation Rights.
(a) Preference for Series A Preferred Stock. Upon the dissolution,
liquidation or winding- up of the Corporation, whether voluntary or
involuntary, the holders of outstanding Shares 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 in cash equal to the sum
of (i) the Stated Value, plus (ii) all accrued and unpaid dividends on the
Series A Preferred Stock to 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 Stock hereunder and the Parity Securities, if any, then such assets
shall be distributed ratably among the holders of such Shares and Parity
Securities, if any, based on the sum of (i) the Stated Value or the stated value
of the Parity Securities, as the case may be, plus (ii) all accrued and unpaid
dividends on the Series A Preferred Stock and the Parity Securities, if any.
(b) Preferences are not Participating. After the payment to the
holders of the Shares of the full preferential amounts provided for in this
Section 4 of Part III, the holders of the Shares as such shall have no right or
claim to any of the remaining assets of the Corporation.
(c) Preferences. In the event the assets of the Corporation
available for distribution to the holders of the Shares upon any dissolution,
liquidation or winding-up of the Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts to which such holders are
entitled pursuant to Section 4 of this Part III, no such distribution shall be
made on account of any shares of any other class or series of Junior A Stock, if
any, unless the full distributive amount shall be paid on account of the Shares.
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 payment in full of the preference accorded to the
Series A Preferred hereunder and the Parity Securities, if any, then such assets
shall be distributed ratably among the Series A Preferred and the Parity
Securities, if any.
(d) 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.
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(5) Voting.
(a) Generally. Except as required by law, and except as
otherwise specifically provided herein, none of the Shares shall have any
voting rights.
(b) Amendment; Certification of Incorporation. So long as any
Shares remain outstanding, the Corporation shall not, without the
affirmative vote at a meeting or the written consent in lieu of a meeting
of the holders of at least a majority in number of Shares then outstanding,
amend, alter or repeal any of the provisions of this Certificate of
Incorporation so as to affect adversely the preferences, special rights or
powers of the Shares.
(c) Authorized Shares. So long as any Shares remain
outstanding, the Corporation shall not amend this Certificate of Incorporation
so as to increase or decrease the aggregate number of authorized shares of the
Preferred Stock, or increase or decrease the par value of the Preferred Stock,
without the affirmative vote at a meeting or the written consent in lieu of a
meeting of the holders of at least a majority in number of all Shares then
outstanding.
(6) Conversion of Series A Preferred Stock.
The holders of the Series A Preferred shall each have the following
conversion rights:
(a) Right to Convert.
Subject to the provisions for adjustment hereinafter set
forth, each Share shall be convertible, as provided for below, at the option of
the holders of a majority of Shares then outstanding (such conversion, an
"Optional Conversion"), into fully-paid and non-assessable shares of Class A
Common or Class B Common for a period of one hundred eighty (180) days
immediately following the date of consummation of a Qualifying Offering at a
conversion price per share (net of underwriters' fees, commissions and discounts
and of the offering expenses) of Class A Common or Class B Common, as the case
may be, equal to the price per share of Common Stock paid by the public in
connection with such Qualifying Offering (such price shall be the "Conversion
Price" with respect to an Optional Conversion hereunder). The number of shares
of Common Stock into which each Share shall be convertible shall be determined
by dividing (i) the sum of (x) the Stated Value thereof, plus (y) an amount
equal to all accrued but unpaid dividends thereon to the date of conversion,
(ii) by the Conversion Price.
(b) Conversion Procedure
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(i) If the majority holders of Series A Preferred Stock
notify the Corporation in writing during such one hundred eighty (180) day
period that they elect an Optional Conversion, each holder of Shares shall be
promptly notified in writing thereof by the Corporation, and for a period of
twenty (20) days after receipt of such written notice, each such holder shall
have the right to surrender the certificate or certificates for all of such
Shares that it proposes to convert, duly endorsed, at the principal office of
the Corporation or of any transfer agent for the Series A Preferred Stock or
Common Stock, together with written notice of the name or names in which such
holder wishes the certificate or certificates for shares of Common Stock to be
issued if such name or names shall be different than that of such holder. In
case such notice shall specify a name or names other than that of such holder,
such notice shall be accompanied by payment of all transfer Taxes payable upon
the issuance and delivery of shares of Common Stock in such name or names.
Thereupon, the Corporation shall issue and deliver at such office on the second
succeeding Business Day to such holder a certificate or certificates for the
number of validly issued, fully paid and non-assessable shares of Common Stock
to which such holder is entitled if less than the full number of shares of
Series A Preferred Stock evidenced by the surrendered certificate or
certificates are being converted, a new certificate or certificates, for the
number of Shares of evidenced by such surrendered certificate or certificates
less the number of shares converted.
(ii) Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date of such surrender of the
Shares to be converted so that the rights of the holder thereof as to the Shares
being converted shall cease at such time except for the right to receive shares
of Common Stock, any rights trading therewith and any dividends declared,
accrued and unpaid in accordance herewith, and the Person entitled to receive
shares of Common Stock and any dividends declared, accrued and unpaid in
accordance herewith shall be treated for all purposes as the record holder of
such shares of Common stock at such time.
(c) Adjustment for Stock Splits and Combinations. If the
Corporation at any time or from time to time after the date of the Qualifying
Offering and prior to the date of any Optional Conversion (A) subdivides its
issued and outstanding shares of Class A Common or Class B Common, or (B)
combines its issued and outstanding shares of Class A Common or Class B Common
into a smaller number of shares, then, in each such case, the Conversion Price
in effect immediately prior to such event shall be adjusted so that each holder
of Shares shall have the right to convert its Shares into the number of shares
of Common Stock which it would have owned after the event had such Shares of
such Series A Preferred Stock been converted immediately before the happening of
such event. Any adjustment under this Section 6(c) of Part III shall become
effective as of the date and time such event becomes effective.
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(7) Miscellaneous.
(a) Reorganization, Reclassification, Consolidation,
Merger or Sale.
(i) Any recapitalization, reorganization,
reclassification, consolidation, merger, sale of all or
substantially all of the Corporation's assets to another Person
or other transaction, occurring during the one hundred eighty
(180) days after a Qualifying Offering, which is effected in such
a way that holders of Common Stock are entitled to receive
(either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common
Stock is referred to herein as an "Organic Change." Prior to the
consummation of any Organic Change, the Corporation shall make
appropriate provision to insure that each of the holders of the
Shares shall thereafter have the right to acquire and receive in
lieu of or in addition to (as the case may be) the shares of
Class A Common (or Class B Common, as the case may be)
immediately theretofore acquirable and receivable upon the
conversion of such holder's Shares, such shares of stock,
securities or assets as may be issuable or payable with respect
to or in exchange for the number of shares of Common Stock
immediately theretofore acquirable and receivable upon conversion
of such holder's Shares had such Organic Change not taken place.
In any such case, the Corporation shall make appropriate
provision with respect to such holders' rights and interest to
insure that the provisions hereof shall thereafter be applicable
to the Shares (including, in the case of any such consolidation,
merger or sale in which the successor entity or purchasing entity
is other than the Corporation, an immediate adjustment to reflect
the value for the Shares reflected by the terms of such
consolidation, merger or sale, if the value so reflected would
cause a decrease in the Conversion Price in effect immediately
prior to such consolidation, merger or sale).
(ii) Unless the holders of at least ninety-five percent
(95%) of the issued and outstanding Shares vote in favor thereof
or by written consent thereto, the Corporation shall not effect
any such consolidation, merger or sale, unless prior to the
consummation thereof, the successor entity (if other than the
Corporation) resulting from such consolidation or merger or the
corporation purchasing such assets assumes by written instrument
(which may be the agreement of consolidation, merger or sale),
the obligation to deliver to each such holder such shares of
stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to acquire.
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(b) Fractional Shares Adjustments. Fractional shares may be
issued upon conversion of the Series A Preferred Stock.
(c) Shares to be Reserved. The Corporation shall at all times
reserve and keep available, out of its authorized and unissued stock, solely for
the purpose of effecting the conversion of the Series A Preferred Stock, such
number of shares of Class A Common and Class B Common as shall from time to time
be sufficient to effect the conversion of all of the Series A Preferred Stock
from time to time outstanding. The Corporation shall from time to time, in
accordance with the laws of the State of Delaware, increase the authorized
number of shares of each series of Class A Common and Class B Common if at any
time the number of shares of Class A Common and Class B Common not then
outstanding shall be insufficient to permit the conversion in full of the Series
A Preferred Stock.
(d) Taxes and Charges. The Corporation will pay any and all
Taxes that may be payable in respect of any issuance or delivery of shares of
Common Stock on conversion of the Series A Preferred Stock. The Corporation
shall not, however, be required to pay any Tax which may be payable in respect
of any transfer involved in the issuance or delivery of Common Stock in a name
other than that of the holder of the Series A Preferred Stock, and no such
issuance or delivery shall be made unless and until the Person requesting such
issuance has paid to the Corporation the amount of such Tax or has established,
to the satisfaction of the Corporation, that such Tax has been paid.
(e) Closing of Books. The Corporation will at no time close
its transfer books against the transfer of any Shares of Series A Preferred
Stock or of any shares of Common Stock issued or issuable upon the conversion of
any Shares of Series A Preferred Stock in any manner which interferes with the
timely conversion of such shares of Series A Preferred Stock.
(f) Status of Converted Stock. In the event any shares of
Series A Preferred Stock shall be converted pursuant to Section 6 of this Part
III, the shares so converted shall be retired and the certificates representing
such shares shall be canceled and such shares shall not be issuable by the
Corporation.
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.
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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 CVC Stockholders have the right to
designate directors under Section 5.1(a) of the Stockholders Agreement, the
Corporation (and each of its Subsidiaries) shall not enter into a Significant
Transaction without a prior Affirmative Board Vote.
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: The Corporation expressly elects not to be governed by Section
203 of the GCL.
TENTH: To the fullest extent permitted by the GCL as the same exists
or may hereafter be amended, 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 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 TENTH by the stockholders shall adversely affect
any right or protection of a director of the Corporation existing by virtue of
this Article TENTH at the time of such repeal or modification.
ELEVENTH: 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.
TWELFTH: 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.
THIRTEENTH: 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
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notice to any particular holder nor any defect in any such notice shall affect
the sufficiency of notice with respect to any other Person.
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IN WITNESS WHEREOF, the undersigned, being the Chief Executive
Officer and President of the Corporation, has duly executed this Restated
Certificate of Incorporation on this 13 day of August, 1996.
MS ACQUISITION CORP.
By: /s/ Ueli Spring
-------------------------------
Name: Ueli Spring
Title: Chief Executive Officer
and President