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Exhibit 3(i)
RESTATED CERTIFICATE OF INCORPORATION
OF
FANZ ENTERPRISES, INC.
FIRST: The name of the Corporation is FanZ Enterprises, Inc.
SECOND: The address of its registered office in the State of Delaware
is No. 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
FOURTH: The aggregate number of shares of stock which the Corporation
shall have authority to issue is 20,010,000 shares consisting of:
(1) 20,000,000 shares of Common Stock, par value $.01 per share
(the "Common Stock"); and
(2) 10,000 shares of Preferred Stock, par value $.01 per share
(the "Preferred Stock").
The following is a statement of the express terms, powers, preferences,
rights, qualifications, limitations and restrictions of the Preferred Stock and
the Common Stock:
PREFERRED STOCK
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Section 1. DESIGNATION. The designation of the series of Preferred
Stock, authorized by this resolution shall be "10% Cumulative Preferred Stock"
(the "Cumulative Stock"). The par value of the Cumulative Stock shall be $.01
per share. The number of shares of Cumulative Stock shall be 10,000.
Section 2. RANK. The Cumulative Stock shall, with respect to dividend
rights and rights on liquidation, winding up and dissolution, rank prior to all
classes of the Common Stock of the Corporation.
Section 3. DIVIDENDS. (a) The holders of the shares of Cumulative Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends,
cumulative dividends at the annual rate of 10% ($4.00) per share, and no more,
in preference to and in priority over any dividends upon any of the Common
Stock. Such dividends shall be payable in equal quarterly payments (except with
respect to the first payment, as
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provided below) on March 15, June 15, September 15 and December 15 of each year,
commencing June 15, 2001 (each of such dates being a "dividend payment date").
Such dividend shall be paid to the holders of record at the close of business on
the date specified by the Board of Directors of the Corporation at the time such
dividend is declared. Each such quarterly dividend shall be fully cumulative and
shall accrue (whether or not declared), without interest, from the first day of
the quarter in which such dividend may be payable as herein provided (the
"Effective Time").
(b) Notwithstanding anything contained herein to the contrary,
no cash dividends on shares of Cumulative Stock or Common Stock shall be
declared by the Board of Directors or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation entered into for the purpose of providing financing for the
Corporation's operations (including any related refinancings) or working
capital, or any refinancings of any of the above ("Senior Debt") (whether or not
entered into prior to or after the Effective Time), specifically prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder; PROVIDED, HOWEVER, that nothing herein
contained shall in any way or under any circumstances be construed or deemed to
require the Board of Directors to declare or the Corporation to pay or set apart
for payment any cash dividends on shares of the Cumulative Stock at any time,
whether permitted by any of such agreements or not.
(c) The Corporation shall not declare, pay or set apart for
payment any dividend on any of the Common Stock or make any payment on account
of, or set apart for payment money for a sinking or other similar fund for, the
purchase, redemption or other retirement of, any of the Common Stock or any
warrants, rights, calls or options exercisable for or convertible into any of
the Common Stock, or make any distribution in respect thereof, either directly
or indirectly, and whether in cash, obligations or shares of the Corporation or
other property, and shall not permit any corporation or other entity directly or
indirectly controlled by the Corporation to purchase or redeem any of the Common
Stock (other than purchases or redemptions pursuant to or in accordance with
employee stock subscription agreements entered into between the Corporation and
certain of its or its subsidiaries' officers and key employees), UNLESS prior to
or concurrently with such declaration, payment, setting apart for payment,
purchase, redemption or distribution, as the case may be, all accrued and unpaid
dividends on shares of the Cumulative Stock not paid on the dates provided for
in Section 3(a) hereof (including accrued dividends not paid by reason of the
terms and conditions of Section 3(d) hereof) shall have been or be paid.
(d) Each fractional share of Cumulative Stock outstanding
shall be entitled to a ratably proportionate amount of all dividends accruing
with respect to each outstanding share of Cumulative Stock pursuant to Section
3(a) hereof and to a ratably proportionate share of all other rights pertaining
to the Cumulative Stock. All such dividends shall be payable in the same manner
and at such times as provided for in Section 3(a) hereof with respect to
dividends on each outstanding share of Cumulative Stock, and all such other
rights shall be exercised in the same manner as is provided herein for full
shares of Cumulative Stock.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of shares of
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Cumulative Stock then outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders an amount in
cash equal to $60 for each share outstanding, plus an amount in cash equal to
all accrued but unpaid dividends thereon to the date fixed for liquidation,
dissolution or winding up before any payment shall be made or any assets
distributed to the holders of any of the Common Stock. If the assets of the
Corporation are not sufficient to pay in full the liquidation payments payable
to the holders of outstanding shares of the Cumulative Stock, then the holders
of all such shares shall share ratably in such distribution of assets in
accordance with the amount which would be payable on such distribution if the
amounts to which the holders of outstanding shares of Cumulative Stock are
entitled were paid in full.
(b) A consolidation or merger of the Corporation (other than
one in which the holders of the Common Stock of the corporation immediately
prior to the merger or consolidation continue to hold, directly or indirectly,
more than 50% of the voting power of the Common Stock of the surviving
corporation) or a sale of all or substantially all of the assets or Common Stock
of the Corporation shall be treated as a liquidation, dissolution or winding up
of the affairs of the Corporation within the meaning of this Section 4.
Section 5. REDEMPTION. (a) The Corporation may redeem at its option the
Cumulative Stock, at any time on or after the date which is six months after the
closing of a Qualified Public Offering, in whole or from time to time in part,
at a redemption price of $60 per share (the "Redemption Amount"), to the extent
the Corporation shall have funds legally available for such payment; PROVIDED,
HOWEVER, that no such redemption shall be made while any Senior Debt defined in
Section 3(b) above is outstanding so long as such redemption is prohibited by
the terms of such Senior Debt. In the event the Cumulative Stock is redeemed by
the Corporation in accordance with this Section 5, the holders of Cumulative
Stock shall only be entitled to receive the Redemption Amount and not the amount
of any accrued and unpaid dividends.
(b) Shares of Cumulative Stock which have been issued and
reacquired in any manner, including shares purchased or redeemed or exchanged,
shall (upon compliance with any applicable provisions of the laws of the State
of Delaware) have the status of authorized and unissued shares of the class of
Preferred Stock undesignated as to series and may be redesignated and reissued
as part of any series of the Preferred Stock; PROVIDED, HOWEVER, that no such
issued and reacquired shares of Cumulative Stock shall be reissued or sold as
Cumulative Stock unless reissued as a stock dividend on shares of Cumulative
Stock.
(c) For purposes of this Section 5, the term "Qualified Public
Offering" shall mean the sale in a public offering registered under the
Securities Act of 1933, as amended (the "Securities Act"), of the Common Stock
of the Corporation consummated pursuant to a registration statement declared
effective under the Securities Act, the gross proceeds of which to the
Corporation and/or the selling shareholders, if any, are at least Ten Million
Dollars ($10,000,000).
Section 6. PROCEDURE FOR REDEMPTION. (a) In the event that fewer than
all the outstanding shares of Cumulative Stock are to be redeemed, the number of
shares to be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be selected by lot, except that in any redemption of
fewer than all the outstanding shares of Cumulative Stock, the Corporation
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may redeem all shares held by any holders of a number of shares not to exceed
100 as may be specified by the Board of Directors.
(b) In the event the Corporation shall redeem shares of
Cumulative Stock, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 20 days or more than 50 days prior to the
redemption date, to each holder of record of the shares to be redeemed at such
holder's address as the same appears on the stock register of the Corporation;
PROVIDED, HOWEVER, that no failure to give such notice or any defect therein
shall affect the validity of the proceeding for the redemption of any shares of
Cumulative Stock to be redeemed except as to the holder to whom the Corporation
has failed to give said notice or except as to the holder whose notice was
defective. Each such notice shall state: (i) the redemption date; (ii) the
number of shares of Cumulative Stock to be redeemed and, if less than all the
shares held by such holder are to be redeemed from such holder, the number of
shares to be redeemed from such holder; (iii) the redemption price; (iv) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date.
(c) Notice having been mailed as aforesaid, from and after the
redemption date (unless, default shall be made by the Corporation in providing
money for the payment of the redemption price of the shares called for
redemption) dividends on the shares of Cumulative Stock so called for redemption
shall cease to accrue, and all rights of the holders thereof as stockholders of
the Corporation (except the right to receive from the Corporation the redemption
price upon exchange) shall cease. Upon surrender in accordance with said notice
of the certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption price
aforesaid. In case fewer than all the shares represented by any such certificate
are redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
Section 7. VOTING RIGHTS. (a) the holders of record of shares of
Cumulative Stock shall not be entitled to any voting rights except as
hereinafter provided in this Section 7 or as otherwise provided by law.
(b) Without the affirmative vote of the holders of at least
two thirds of the outstanding shares of Cumulative Stock, voting as a class, the
Corporation may not (i) amend any provision of the Restated Certificate of
Incorporation or this Certificate that would affect adversely the voting powers
(except as such voting powers may be affected by the authorization of any new
series of Preferred Stock having the same voting rights as the Cumulative Stock
or by the authorization of any other shares of any class that are not entitled
to vote together with the Cumulative Stock in any class vote) or other rights or
preferences of holders of the shares of Cumulative Stock; or (ii) authorize or
create any class of Common Stock or obligations or securities convertible into
or evidencing the right to purchase any Common Stock. Without the affirmative
vote of the holders of a majority of the outstanding shares of Cumulative Stock,
voting as a class, the Corporation may not authorize or create any class of
Preferred Stock or obligations or securities convertible into or evidencing the
right to purchase any Preferred Stock.
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COMMON STOCK
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The Common Stock shall be subject to the express terms of the
Cumulative Stock. The terms and provisions of each share of Common Stock shall
be identical to every other share of Common Stock. The holders of shares of
Common Stock shall be entitled to one vote for each share of such Common Stock
upon matters presented to the stockholders.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon
the real property of the Corporation.
To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors
of the Corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The by-laws may
provide that in the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the board of directors, or in the by-laws of the
Corporation, shall have and may exercise all of the powers and
authority of the board of directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to
amending the certificate of incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of
the Corporation or a revocation of a dissolution, or amending the
by-laws of the Corporation; and unless the resolution or by-laws
expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with
statute, to sell, lease or exchange all or substantially all of the
property and assets of the Corporation, including its good will and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist, in whole or in part, of money or
property, including shares
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of stock in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and for
the best interests of the Corporation.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the by-laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the board of directors or in the by-laws of the Corporation. Elections of
directors need not be by written ballot unless the by-laws of the Corporation
shall so provide.
EIGHTH: 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
stockholders herein are granted subject to this reservation.
NINTH: No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the Delaware General Corporation Law, or (4) for
any transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitations on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this Article shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of the Corporation
existing at the time of such repeal or modification.
TENTH: A. Each person who was or is made a party to or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she 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, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent, authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA, excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
subsection B of this Article, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if
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such proceeding (or part thereof) was authorized by the board of directors of
the Corporation. The right to indemnification conferred in this Article shall be
a contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article or
otherwise. The Corporation may, by action of its board of directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
B. If a claim under subsection A of this Article is not paid in full by the
Corporation within thirty (30) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
C. The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of this Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
D. The Corporation may maintain insurance, at its expense, to protect itself and
any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such 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.
E. As used in this Article, references to "the Corporation" shall include, in
addition to the resulting or surviving corporation, any constituent corporation
absorbed in a consolidation or merger
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which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees and agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
F. If this Article or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director, officer, employee and agent of the Corporation as to
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including a grand jury proceeding and
an action by the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated or by any other
applicable law.
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