EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HORIZON PCS, INC.
Horizon PCS, Inc., a corporation organized and existing under the laws of
the State of Delaware, hereby certifies as follows:
1. The name of the corporation is "Horizon PCS, Inc."
2. The corporation's original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on April 26, 2000.
3. The corporation's Amended and Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on September 26,
2000.
4. This Second Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with Sections 245 and 303 of the General Corporation
Law of the State of Delaware.
5. In accordance with the provisions of Section 303 of the General
Corporation Law of the State of Delaware, the amendment and restatement of the
Certificate of Incorporation by this Second Amended and Restated Certificate of
Incorporation was authorized by the Joint Plan of Reorganization of Horizon PCS,
Inc., Horizon Personal Communications, Inc. and Bright Personal Communications
Services, LLC, filed on August 12, 2004, as modified on September 20, 2004, and
which plan of reorganization was confirmed on September 20, 2004 by the United
States Bankruptcy Court for the Southern District of Ohio.
6. The text of the Certificate of Incorporation is hereby amended and
restated in its entirety as follows:
ARTICLE 1: NAME
The name of the corporation is "Horizon PCS, Inc."
ARTICLE 2: REGISTERED AGENT AND OFFICE
The address of the corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of the corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE 3: PURPOSE
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law.
ARTICLE 4: CAPITALIZATION
This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the corporation is authorized to issue is thirty five million
(35,000,000) shares: (a) twenty-five million (25,000,000) shares of which shall
be designated as Common Stock, each having a par value of $0.0001; and (b) ten
million (10,000,000) shares of which shall be designated as Preferred Stock,
each having a par value of $0.0001.
A. Common Stock.
(1) Dividends. Subject to the rights of any Preferred Stock
issued by the corporation, as and if dividends are declared thereon by the
Board of Directors out of funds legally available therefore, whether
payable in cash, property or securities of the corporation, the holders of
Common Stock shall be entitled to share equally on a share-for-share basis
in all such dividends.
(2) Voting Rights. At every meeting of stockholders, the holders
of Common Stock shall have the right to vote in the election of directors
and upon each other matter coming before any meeting of the stockholders on
the basis of one vote for each share of Common Stock held. The holders of
Common Stock shall not have cumulative voting rights.
(3) Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the corporation, the holders of Common Stock
shall be entitled, after payment or provisions for payment of the debts and
other liabilities of the corporation and the amounts to which the holders
of the Preferred Stock shall be entitled, to share ratably in the remaining
net assets of the corporation.
B. Preferred Stock. The Board of Directors shall have authority to divide
and issue shares of Preferred Stock into series and, within the limitations set
forth in this Certificate of Incorporation, to fix and determine the relative
rights and preferences of the shares of any series so established. Each series
of Preferred Stock shall be designated by the Board of Directors as to
distinguish the shares thereof from the shares of all other series of Preferred
Stock and other classes of stock of the corporation. Before any shares of any
such series are issued, the Board of Directors shall fix, and hereby is
expressly empowered to fix, by resolution or resolutions, the following
provisions of the shares thereof: (a) the number of shares constituting that
series and the distinctive designation of that series; (b) the rate of dividend,
the extent of further participation in dividend distributions, if any, and the
preferences or relation which such dividends shall bear to the dividends payable
on any shares of stock of any other class or any other series of this class; (c)
whether that series shall have voting rights in addition to the voting rights
provided by law and, if so, the terms and extent of such voting rights; (d)
whether the shares may be redeemed and, if so, the terms and conditions on which
they may be redeemed (including, without limitation, the dates upon or after
which they may be redeemed and the price or prices at which they may be
redeemed); (e) whether the shares will be issued with the privilege of
conversion or exchange and, if so, the terms and conditions of such conversion
or
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exchange (including, without limitation, the price or prices or the rate or
rates of conversion or exchange or any terms for adjustment thereof); (f) the
amounts, if any, payable upon shares in the event of voluntary or involuntary
liquidation, dissolution or winding-up of the corporation; (g) sinking fund
provisions for the redemption or purchase of shares; and (h) any other powers,
preferences and relative, participating, optional and other special rights, and
any qualifications, limitations and restrictions thereof. The powers,
preferences and relative, participating, optional and other special rights of
each series of Preferred Stock, and the qualifications, limitations and
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding. All shares of any one series of Preferred Stock shall
be identical in all respects with all other shares of such series, except that
shares of any one series issued at different times may differ as to the dates
from which dividends thereon shall accrue and/or be cumulative.
Notwithstanding the foregoing, in addition to any other vote required by
law or by this Certificate of Incorporation, the prior affirmative vote of the
holders of a majority of the voting power of all of the then-outstanding shares
of the voting stock of the corporation entitled to vote (the "Voting Stock")
shall be required to authorize the corporation to (i) adopt or implement any
stockholder rights plan or similar takeover defense measure or (ii) issue
Preferred Stock, unless the Board of Directors determines, as evidenced by a
resolution, that the primary purpose of such issuance is (A) to raise capital or
to facilitate an acquisition or similar strategic corporate transaction, and (B)
not to implement a takeover defense measure or to have an anti-takeover effect.
C. Rights of Stockholders. No holder of shares of stock of the corporation
shall have any preemptive or other similar right, except as such rights are
expressly provided by contract or by resolution of the Board of Directors
creating a series of Preferred Stock, to purchase or subscribe for or receive
any shares of any class, or series thereof, of stock of the corporation, whether
now or hereafter authorized, or any warrants, options, bonds, debentures or
other securities convertible into, exchangeable for or carrying any right to
purchase any shares of any class of stock, or series thereof; but such
additional shares of stock and such warrants, options, bonds, debentures or
other securities convertible into, exchangeable for or carrying any right to
purchase any shares of any class of stock, or series thereof, may be issued or
disposed of by the Board of Directors to such persons, and on such terms and for
such lawful consideration, as in its discretion it shall deem advisable or as to
which the corporation shall have agreed by binding contract.
D. Restriction on Non-Voting Equity Securities. Notwithstanding any other
provisions contained in this Certificate of Incorporation to the contrary, the
corporation shall not issue non-voting equity securities in violation of Section
1123(a)(6) of the Bankruptcy Code (11 U.S.C. Section 1123(a)(6)).
ARTICLE 5: BOARD OF DIRECTORS
The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be determined in
accordance with the Bylaws of the corporation.
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ARTICLE 6: LIMITATION OF DIRECTOR LIABILITY
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of such director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law or (iv) for any transaction from which such director derived an improper
personal benefit. If the Delaware General Corporation Law is amended 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 Delaware
General Corporation Law, as so amended. Any repeal or modification of this
Article 6 by the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at the time of
such repeal or modification.
ARTICLE 7: INDEMNIFICATION
The corporation shall, to the fullest extent permitted by Section 145 of
the Delaware General Corporation Law, indemnify any and all persons whom it
shall have the power to indemnify under said section from and against any and
all of the expenses, liabilities or other matters referred to in or covered by
said section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in their official capacities and as to action in
other capacities while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
The corporation may purchase and maintain insurance, at its expense, to
protect itself and any and all directors, officers, employee or agent of the
corporation or subsidiary or affiliate or another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
The corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any director or officer of the corporation to the fullest extent
permitted by the Delaware General Corporation Law and to employees and agents to
the same extent as any director or officer.
ARTICLE 8: AMENDMENT OF CERTIFICATE OF INCORPORATION
AND BYLAWS
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 upon the stockholders
herein are granted subject to this reservation.
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The Bylaws may be altered or amended or new Bylaws adopted by the
affirmative vote of the holders of a majority of the voting power of all of the
then-outstanding shares of the Voting Stock. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to adopt, amend or repeal the Bylaws, without any action on
the part of the stockholders.
IN WITNESS WHEREOF, the corporation has caused this Second Amended and
Restated Certificate of Incorporation to be signed by William A. McKell, its
President and Chief Executive Officer, and attested by Steven P. Burkhardt, its
Secretary, this ____ day of September, 2004.
By:
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Name: William A. McKell
Title: President and Chief Executive
Officer
Attested:
By:
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Steven P. Burkhardt, Secretary
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