EXHIBIT 99.2
RESTATED CERTIFICATE OF INCORPORATION
OF
LIBERTY LIVEWIRE CORPORATION
LIBERTY LIVEWIRE CORPORATION, A CORPORATION ORGANIZED AND EXISTING UNDER
THE LAWS OF THE STATE OF DELAWARE, HEREBY CERTIFIES AS FOLLOWS:
(1) THE NAME OF THE CORPORATION IS LIBERTY LIVEWIRE
CORPORATION. THE ORIGINAL CERTIFICATE OF INCORPORATION OF THE
CORPORATION WAS FILED WITH THE SECRETARY OF STATE ON NOVEMBER 28, 1952.
THE NAME UNDER WHICH THE CORPORATION WAS ORIGINALLY INCORPORATED IS MAOT
CORPORATION.
(2) THIS RESTATED CERTIFICATE OF INCORPORATION AMENDS AND
RESTATES THE RESTATED CERTIFICATE OF INCORPORATION OF THE CORPORATION.
(3) PURSUANT TO SECTIONS 242 AND 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE AND IN ACCORDANCE WITH SECTION
228 THEREOF, THE TEXT OF THE CERTIFICATE OF INCORPORATION IS HEREBY
AMENDED AND RESTATED TO READ IN ITS ENTIRETY AS FOLLOWS:
"ARTICLE I.
NAME
The name of the corporation is Ascent Media Group, Inc. (the
"Corporation").
ARTICLE II.
REGISTERED OFFICE
The address of the registered office of the Corporation in the
State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, County of New
Castle, Delaware 19808. The name of its registered agent at such address is
Corporation Service Company.
ARTICLE II.
PURPOSE
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 ("DGCL").
ARTICLE III.
AUTHORIZED STOCK
The total number of shares of capital stock that the Corporation
shall have authority to issue is 405,000,000 shares of which 400,000,000 shares
shall be common stock, par value $.01 per share ("Common Stock") and 5,000,000
shares shall be preferred stock, par value $.01 per share ("Preferred Stock").
Said shares of Common Stock shall be divided into the following classes: (a)
300,000,000 shares shall be designated as Class A Common Stock ("Class A Common
Stock") and (b) 100,000,000 shares shall be designated as Class B Common Stock
("Class B Common Stock"). Said shares of Preferred Stock shall be all of one
class and shall be issuable in one or more series as set forth in Section B of
this Article IV.
SECTION A
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
Each share of the Class A Common Stock and each share of the
Class B Common Stock of the Corporation shall, except as otherwise provided in
this Article IV, Section A, be identical in all respects and shall have equal
rights and privileges.
1. Voting Rights.
Holders of Class A Common Stock shall be entitled to ONE vote for
each share of such stock held, and holders of Class B Common Stock shall be
entitled to TEN votes for each share of such stock held, on all matters
presented to such stockholders, whether at any special or annual meeting of
stockholders, by written consent in lieu of meeting, or otherwise. Except as may
otherwise be required by the laws of the State of Delaware and, with respect to
any series of Preferred Stock, except as may be provided in any resolution or
resolutions providing for the establishment of such series pursuant to authority
vested in the Board of Directors by Article IV, Section B, of this Certificate,
the holders of outstanding shares of Class A Common Stock, the holders of
outstanding shares of Class B Common Stock and the holders of outstanding shares
of each series of Preferred Stock shall vote together as one class with respect
to the election of directors and with respect to all other matters to be voted
on by stockholders of the Corporation (including, without limitation, any
proposed amendment to this Certificate that would increase the number of
authorized shares of any class of Common Stock or any series of Preferred Stock
or decrease the number of authorized shares of any such class or series of stock
(but not below the number of shares thereof then outstanding)), and no separate
vote or consent of the holders of shares of Class A Common Stock, Class B Common
Stock or any series of Preferred Stock shall be required for the approval of any
such matter.
2. Conversion Rights.
Each share of Class B Common Stock shall be convertible, at the
option of the holder thereof, into one share of Class A Common Stock. Any such
conversion may be effected by any holder of Class B Common Stock by surrendering
such holder's certificate or certificates for the Class B Common Stock to be
converted, duly endorsed, at the office of the Corporation or any transfer agent
for the Class B Common Stock, together with a written notice to the
Corporation at such office that such holder elects to convert all or a specified
number of shares of Class B Common Stock represented by such certificate and
stating the name or names in which such holder desires the certificate or
certificates for Class A Common Stock to be issued. If so required by the
Corporation, any certificate for shares surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder of such shares or the duly authorized representative
of such holder. Promptly thereafter, the Corporation shall issue and deliver to
such holder or such holder's nominee or nominees, a certificate or certificates
for the number of shares of Class A Common Stock to which such holder shall be
entitled as herein provided. Such conversion shall be deemed to have been made
at the close of business on the date of receipt by the Corporation or any such
transfer agent of the certificate or certificates, notice and, if required,
instruments of transfer referred to above, and the person or persons entitled to
receive the Class A Common Stock issuable on such conversion shall be treated
for all purposes as the record holder or holders of such Class A Common Stock on
that date. A number of shares of Class A Common Stock equal to the number of
shares of Class B Common Stock outstanding from time to time shall be set aside
and reserved for issuance upon conversion of shares of Class B Common Stock.
Shares of Class B Common Stock that have been converted hereunder shall become
treasury shares that may be issued or retired by resolution of the Board of
Directors. Shares of Class A Common Stock shall not be convertible into shares
of Class B Common Stock.
3. Dividends.
Subject to subsection 4 of this Section A, whenever a dividend is
paid to the holders of shares of any class of Common Stock, the Corporation also
shall pay an equal per share dividend to the holders of the other class of
Common Stock of the Corporation. Dividends shall be payable only as and when
declared by the Board of Directors out of funds legally available therefor.
4. Share Distributions.
If at any time a distribution paid in Class A Common Stock, Class
B Common Stock or any other securities of the Corporation or any other entity
(hereinafter sometimes called a "share distribution") is to be made with respect
to the Class A Common Stock or Class B Common Stock, such share distribution may
be declared and paid only as follows:
a. a share distribution consisting of shares of Class
A Common Stock (or securities convertible into or exercisable or
exchangeable for shares of Class A Common Stock) to holders of Class A
Common Stock and Class B Common Stock, on an equal per share basis; or
consisting of shares of Class B Common Stock (or securities convertible
into or exercisable or exchangeable for shares of Class B Common Stock)
to holders of Class A Common Stock and Class B Common Stock, on an equal
per share basis; or consisting of shares of Class A Common Stock (or
securities convertible into or exercisable or exchangeable for shares of
Class A Common Stock) to holders of Class A Common Stock and, on an
equal per share basis, shares of Class B Common Stock (or like
securities convertible into or exercisable or exchangeable for shares of
Class B Common Stock) to holders of Class B Common Stock; and
b. a share distribution consisting of any class or
series of securities of the Corporation or any other entity other than
Class A Common Stock or Class B Common Stock (or securities convertible
into or exercisable or exchangeable for shares of Class A Common Stock
or Class B Common Stock), either on the basis of a distribution of
identical securities, on an equal per share basis, to holders of Class A
Common Stock and Class B Common Stock or on the basis of a distribution
of one class or series of securities to holders of Class A Common Stock
and another class or series of securities to holders of Class B Common
Stock, provided that the securities so distributed (and, if applicable,
the securities into which the distributed securities are convertible, or
for which they are exercisable or exchangeable) do not differ in any
respect other than their relative voting rights and related differences
in designation, conversion and share distribution provisions, with
holders of shares of Class B Common Stock receiving the class or series
having the higher relative voting rights (without regard to whether such
rights differ to a greater or lesser extent than the corresponding
differences in voting rights between the Class A Common Stock and the
Class B Common Stock) and related differences in designation, conversion
and share distribution provisions, provided that if the securities so
distributed constitute capital stock of a Subsidiary (as defined below)
of the Corporation, such voting rights (and related designation,
conversion and share distribution provisions) shall not differ to a
greater extent than the corresponding differences in voting rights
between the Class A Common Stock and the Class B Common Stock, and
provided in each case that such distribution is otherwise made on an
equal per share basis. As used herein, the term "Subsidiary" means, when
used with respect to any entity, (i) a corporation in which such entity
and/or one or more Subsidiaries of such entity, directly or indirectly,
owns capital stock having a majority of the voting power of such
corporation's capital stock to elect directors under ordinary
circumstances, and (ii) any other entity (other than a corporation) in
which such entity and/or one or more Subsidiaries of such entity,
directly or indirectly, has (x) a majority ownership interest or (y) the
power to elect or direct the election of a majority of the members of
the governing body of such first-named entity.
The Corporation shall not reclassify, subdivide or combine the
Class A Common Stock without reclassifying, subdividing or combining the Class B
Common Stock, on an equal per share basis, and the Corporation shall not
reclassify, subdivide or combine the Class B Common Stock without reclassifying,
subdividing or combining the Class A Common Stock, on an equal per share basis.
5. Liquidation and Mergers.
Subject to the prior payment in full of the preferential amounts
to which any Preferred Stock is entitled, the holders of Class A Common Stock
and the holders of Class B Common Stock shall share equally, on an equal per
share basis, in any distribution of the Corporation's assets upon any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation. Neither the consolidation or merger of the
Corporation with or into any other corporation or corporations nor the sale,
transfer or lease of all or substantially all of the assets of the Corporation
shall in itself be deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this Section A.5.
SECTION B
PREFERRED STOCK
The Preferred Stock may be issued, from time to time, in one or
more series, with such powers, designations, preferences and relative,
participating, optional or other rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in a resolution or
resolutions providing for the issue of each such series adopted by the Board of
Directors. The Board of Directors, in such resolution or resolutions (a copy of
which shall be filed and recorded as required by law), is also expressly
authorized to fix with respect to each series:
a. the distinctive serial designations and the
division of such shares into series and the number of shares of a
particular series, which may be increased or decreased, but not below
the number of shares thereof then outstanding, by a certificate made,
signed, filed and recorded as required by law;
b. the dividend rate or amounts, if any, for the
particular series, the date or dates from which dividends on all shares
of such series shall be cumulative, if dividends on stock of the
particular series shall be cumulative, and the relative rights of
priority, if any, or participation, if any, with respect to payment of
dividends on shares of that series;
c. the rights of the shares of each series in the
event of voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, and the relative rights of priority, if any, of
payment of shares of each series;
d. the right, if any, of the holders of a particular
series to convert or exchange such stock into or for other classes or
series of a class of stock or indebtedness of the Corporation or of
another entity, and the terms and conditions of such conversion or
exchange, including provision for the adjustment of the conversion or
exchange rate in such events as the Board of Directors may determine;
e. the voting rights, if any, of the holders of a
particular series; and
f. the terms and conditions, if any, for the
Corporation to purchase or redeem shares of a particular series.
All shares of any one series of the Preferred Stock shall be
alike in every particular. Except to the extent otherwise provided in the
resolution or resolutions providing for the issue of any series of Preferred
Stock, the holders of shares of such series shall have no voting rights, except
as may be required by the laws of the State of Delaware.
ARTICLE V.
DIRECTORS
SECTION A
NUMBER OF DIRECTORS
The governing body of the Corporation shall be the Board of
Directors. The number of directors shall not be less than three (3) and the
exact number of directors shall be fixed by the Board of Directors by
resolution. Election of directors need not be by written ballot.
SECTION B
CLASSIFICATION OF THE BOARD
Except as otherwise fixed by or pursuant to the provisions of
Article IV hereof relating to the rights of the holders of any series of
Preferred Stock to separately elect additional directors, which additional
directors are not required to be classified pursuant to the terms of such series
of Preferred Stock, the Board of Directors of the Corporation shall be divided
into three classes of directors: Class I, Class II and Class III. Each class of
directors shall consist, as nearly as possible, of a number of directors equal
to one-third (33 1/3%) of the then authorized number of members of the Board of
Directors. The initial term of office of the Class I directors shall expire at
the annual meeting of stockholders in 2000; the initial term of office of the
Class II directors shall expire at the annual meeting of stockholders in 2001;
and the initial term of office of the Class III directors shall expire at the
annual meeting of stockholders in 2002. At each annual meeting of stockholders
of the Corporation the successors of that class of directors whose term expires
at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. The directors of each class will hold office until their
respective death, resignation or removal and until their respective successors
are elected and qualified.
SECTION C
REMOVAL OF DIRECTORS
Subject to the rights of the holders of any series of Preferred
Stock, directors may be removed from office only for cause (as defined below)
upon the affirmative vote of the holders of at least 66 2/3% of the total voting
power of the then outstanding shares of Class A Common Stock, Class B Common
Stock and any series of Preferred Stock entitled to vote at an election of
directors, voting together as a single class. Except as may otherwise be
provided by law, "cause" for removal, for purposes of this Section C, shall
exist only if: (i) the director whose removal is proposed has been convicted of
a felony, or has been granted immunity to testify in an action where another has
been convicted of a felony, by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal; (ii) such director has become
mentally incompetent, whether or not so adjudicated, which mental incompetence
directly affects his ability as a director of the Corporation, as determined by
at least 66 2/3% of the members of the Board of Directors then in office (other
than such director); or (iii) such director's actions or failure to act have
been determined by at least 66 2/3% of the members of
the Board of Directors then in office (other than such director) to be in
derogation of the director's duties.
SECTION D
NEWLY CREATED DIRECTORSHIPS AND VACANCIES
Subject to the rights of holders of any series of Preferred
Stock, vacancies on the Board of Directors resulting from death, resignation,
removal, disqualification or other cause, and newly created directorships
resulting from any increase in the number of directors on the Board of
Directors, shall be filled by the affirmative vote of a majority of the
remaining directors then in office (even though less than a quorum) or by the
sole remaining director. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
directors in which the vacancy occurred or to which the new directorship is
apportioned, and until such director's successor shall have been elected and
qualified. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director, except as may be
provided in the resolution or resolutions providing for the issue of any series
of Preferred Stock with respect to any additional director elected by the
holders of the applicable series of Preferred Stock.
SECTION E
LIMITATION ON LIABILITY AND INDEMNIFICATION
1. Limitation On Liability.
To the fullest extent permitted by the DGCL as the same exists or
may hereafter be amended, a director of the Corporation shall not be liable to
the Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this Section E.1
shall be prospective only and shall not adversely affect any limitation, right
or protection of a director of the Corporation existing at the time of such
repeal or modification.
2. Indemnification.
a. Right to Indemnification. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any
person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative,
is or was a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, limited liability
company, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such person. Such right of indemnification shall inure
whether or not the claim asserted is based on matters which antedate the
adoption of this Section E. The Corporation shall be required to
indemnify a person in connection with a proceeding
(or part thereof) initiated by such person only if the proceeding (or
part thereof) was authorized by the Board of Directors of the
Corporation.
b. Advance Payment of Expenses. The Corporation shall
pay the expenses (including attorneys' fees) incurred by a director or
officer in defending any proceeding, as incurred, in advance of its
final disposition, provided, however, that the payment of expenses
incurred by a director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified under this Section E.2 or otherwise.
c. Claims. If a claim for indemnification or payment
of expenses under this Section E.2 is not paid in full within 60 days
after a written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim and,
if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Corporation
shall have the burden of proving that the claimant was not entitled to
the requested indemnification or payment of expenses under applicable
law.
d. Non-Exclusivity of Rights. The rights conferred on
any person by this Section E.2 shall not be exclusive of any other
rights which such person may have or hereafter acquire under any
statute, provision of this Certificate, the bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
e. Other Indemnification. The Corporation's
obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount
such person may collect as indemnification from such other corporation,
partnership, limited liability company, joint venture, trust, enterprise
or nonprofit entity.
3. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this
Section E shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
SECTION F
AMENDMENT OF BYLAWS
The Board of Directors of the Corporation (or any committee
authorized by the Board of Directors) is hereby expressly authorized and
empowered to adopt, alter, amend or repeal any provision of the bylaws of the
Corporation.
ARTICLE VI.
TERM
The term of existence of this Corporation shall be perpetual.
ARTICLE VII.
STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be assessable if
fully paid. It shall be issued as fully paid, and the private property of the
stockholders shall not be liable for the debts, obligations or liabilities of
this Corporation.
ARTICLE VIII.
MEETINGS OF STOCKHOLDERS
SECTION A
ANNUAL AND SPECIAL MEETINGS
Except as otherwise prescribed by law or by another provision of
this Certificate, special meetings of the stockholders of the Corporation, for
any purpose or purposes, shall be called by the Secretary of the Corporation (i)
upon the written request of the holders of not less than 66 2/3% of the total
voting power of the outstanding Voting Securities (as defined below) or (ii) at
the request of at least 75% of the members of the Board of Directors then in
office. The term "Voting Securities" shall include the Class A Common Stock, the
Class B Common Stock and any series of Preferred Stock entitled to vote with the
holders of Common Stock generally upon all matters that may be submitted to a
vote of stockholders at any annual meeting or special meeting thereof.
SECTION B
STOCKHOLDER ACTION WITHOUT A MEETING
Except as otherwise prescribed by law or by another provision of
this Certificate, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holder or holders of
outstanding stock of the Corporation having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares of stock of the Corporation entitled to vote thereon were
present and voted. Notice shall be given in accordance with the applicable
provisions of the DGCL of the taking of corporate action without a meeting by
less than unanimous written consent to those stockholders on the record date
whose shares were not represented on the written consent.
- - -
(4) THIS RESTATED CERTIFICATE OF INCORPORATION HAS BEEN DULY
ADOPTED IN ACCORDANCE WITH SECTIONS 228, 242 AND 245 OF THE DGCL AND
ARTICLE VIII, SECTION B OF THE RESTATED CERTIFICATE OF INCORPORATION OF
THE CORPORATION.
(5) THIS RESTATED CERTIFICATE OF INCORPORATION SHALL BECOME
EFFECTIVE AS OF NOVEMBER 20, 2002, FOLLOWING ITS FILING WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE.
IN WITNESS WHEREOF, the undersigned has signed this Restated Certificate
of Incorporation this 18th day of November, 2002.
LIBERTY LIVEWIRE CORPORATION
By: /s/ William E. Niles
------------------------------
William E. Niles
Secretary