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IGN ENTERTAINMENT INC
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S-1
Jul 13, 4:17 PM ET
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IGN ENTERTAINMENT INC S-1
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Contents
87
ARTICLE I
ARTICLE II
ARTICLE III
ARTICLE IV
1. Certain Definitions. In addition to terms defined elsewhere herein, the following terms shall have the following respective meanings for purposes of this Amended and Restated Certificate of Incorporation:
“Additional Series A Purchase Agreement” means that certain Securities Purchase Agreement, dated as of March 3, 2004 between the Corporation and the purchasers of the Series A Preferred Stock and Common Stock party thereto, as amended, restated or supplemented from time to time.
“Aggregate Series B Preferred Participation Amount” means (a) the Series B Preferred Participation Percentage multiplied by (b) the aggregate amounts to be paid to the holders of Series A Redeemable Preferred Stock pursuant to Section A.3(a)(ii)(A) divided by (c) the difference obtained by subtracting one (1.00) minus the Series B Preferred Participation Percentage (the intent being that the Aggregate Series B Preferred Participation Amount shall equal the Series B Preferred Participation Percentage multiplied by all amounts paid or distributed to the Designated Preferred Stock pursuant to Section A.3(a)(ii)).
“Series A Preferred Participation Percentage” means ninety and one-half percent (90.5%); provided, that upon any redemption of any share of Series A Preferred Stock in which a proportionate amount is not paid to the holders of Series B Preferred Stock pursuant to Section A.5, then the Series A Preferred Participation Percentage shall be reduced to a percentage equal to the product of (a) the Series A Preferred Participation Percentage in effect immediately prior to such reduction multiplied by (b) a fraction, the numerator of which is the number of shares of Series A Redeemable Preferred Stock outstanding immediately after such redemption and the denominator of which is the number of shares of Series A Redeemable Preferred Stock outstanding immediately prior to such redemption.
“Series B Default” means (a) an Event of Default as set forth in Sections 12.01(a), (c), (d), (e), (f), (h), (i), (j) or (l) of the Series B Purchase Agreement, (b) any failure to make any payment or distribution on the Series B Preferred Stock as required by Section A.4 or A.5 hereof and (c) any failure by the Corporation to observe or comply with the covenants set forth in Section A.7(b) hereof.
“Series B Premium Amount” means, as of the date of any distribution upon or redemption of the Series B Preferred Stock, an amount equal to (a) the sum of the Series B Original Issue Price plus the average of the accrued and unpaid dividends on the Series B Preferred Stock as of the close of business on each day during the 30-day period immediately prior to the date of such distribution or redemption multiplied by (b) the following applicable percentage (the “Series B Premium Percentage”), determined as of the date of such distribution or redemption, based on the applicable BACI Series B IRR:
“Series B Preferred Participation Percentage” means one hundred percent (100%) minus the Series A Preferred Participation Percentage (i.e., nine and one-half percent
(9.5%) as of the date of filing hereof until such time, if any, as the Series A Preferred Participation Percentage is reduced in accordance with the definition thereof).
“Series B Purchase Agreement” means the Securities Purchase Agreement, dated as of March 3, 2004 between the Corporation and the purchasers of the Series B Preferred Stock party thereto, as amended, restated or supplemented from time to time.
“Stockholders Agreement” means the Amended and Restated Stockholders Agreement, dated as of March 3, 2004 among the Corporation, the Management Stockholders and the Investors (each as defined therein), as amended, restated or supplemented from time to time.
2. Dividends; Certain Distributions.
(a) Series B Preferred Stock. The holders of outstanding shares of Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, and at the other times set forth herein, in each case out of funds legally available therefor, prior to the payment of any dividends on the Series A Redeemable Preferred Stock, Common Stock or any other class or series of capital stock ranking with respect to the payment of dividends junior to the Series B Preferred Stock, dividends at the rate of thirteen and one-half percent (13.5%) per annum (the “Series B Coupon Rate”) on the Original Issue Price (as defined below) of Series B Preferred Stock from the date of original issuance of such share, which dividends shall be cumulative and accrue daily in arrears and be compounded quarterly, whether or not such dividends are declared by the Board of Directors. Upon the occurrence of any Series B Default, then, in addition to any rights or remedies provided herein or at law or in equity to the holders of the Series B Preferred Stock, the Series B Coupon Rate with respect to dividends accruing from and after the date of such Default and during the continuance thereof shall be increased to an annual rate of fifteen and one-half percent (15.5%), compounded quarterly as set forth above.
(b) Designated Preferred Stock. Subject to Sections 2(a) and 7(b), the holders of outstanding shares of Series A Redeemable Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, prior to the payment of any dividends on the Common Stock or any other class or series of capital stock ranking with respect to the payment of dividends junior to the Series A Redeemable Preferred Stock, dividends at the rate of six per cent (6%) of the per share purchase price of One Dollar ($1.00) per annum per share of Series A Redeemable Preferred Stock (as adjusted for subsequent stock dividends, stock splits, combinations, recapitalizations or the like with respect to such share) from the date of original issuance of such share, which dividends shall be cumulative and accrue daily in arrears and be compounded annually, whether or not such dividends are declared by the Board of Directors; provided, that upon payment of any dividend in respect of any share of Series A Redeemable Preferred Stock, the Corporation shall simultaneously pay to the holders of Series B Preferred Stock a dividend in an amount equal to the Series B Preferred Participation Percentage of the aggregate amount so paid in respect of the Series A Redeemable Preferred Stock.
(c) Participation in Distributions on Common Stock. Whenever the Corporation shall either declare or pay any dividend on or make any distribution with respect to Common Stock, holders of Series B Preferred Stock shall be entitled to receive such dividends or distributions pro rata on the basis of the number of shares of Common Stock into which the Series B Preferred Stock could then be converted.
3. Liquidation; Merger, etc.
(a) Liquidation Preference.
(i) Series B Preferred Stock. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (a “Liquidation Event”), each holder of outstanding shares of Series B Preferred Stock shall be entitled to be paid in cash, before any amount shall be paid or distributed to the holders of Series A Redeemable Preferred Stock, Common Stock or any other class or series of capital stock ranking on liquidation junior to the Series B Preferred Stock, an amount per share equal to the sum (such sum, the “Series B Senior Liquidation Preference Amount”) of the following: (A) $177.6262 (as such amount is adjusted appropriately for stock splits, stock dividends, recapitalizations and the like with respect to the Series B Preferred Stock, the “Series B Original Issue Price”), plus (B) an amount equal to all accumulated but unpaid dividends on such share of Series B Preferred Stock; plus (C) the applicable Series B Premium Amount, if any. If the amounts available for distribution by the Corporation to holders of Series B Preferred Stock upon a Liquidation Event are not sufficient to pay the aggregate Series B Senior Liquidation Preference Amount, then the entire assets and funds of the Corporation legally available for distribution shall be distributed among the holders of the Series B Preferred Stock in proportion to the Series B Senior Liquidation Preference Amount each such holder is otherwise entitled to receive pursuant to this Section A.3(a)(i).
(ii) Series A Redeemable Preferred Stock. Upon any Liquidation Event, each holder of outstanding shares of Series B Preferred Stock and Series A Redeemable Preferred Stock shall be entitled on a pari passu basis to be paid in cash, before any amount shall be paid or distributed to the holders of Common Stock or any other class or series of capital stock ranking on liquidation junior to the Series A Redeemable Preferred Stock, the following respective amounts (collectively, the “Series A/B Liquidation Preference Amount”):
(A) With respect to each share of Series A Redeemable Preferred Stock, an amount equal to (I) One Dollar ($1.00), plus (II) an amount equal to all accumulated but unpaid dividends on such share of Series A Redeemable Preferred Stock (such amount to be adjusted appropriately for stock splits, stock dividends, recapitalizations and the like with respect to the Series A Redeemable Preferred Stock) (the “Series A Redeemable Liquidation Preference Amount”); and
(B) With respect to each share of Series B Preferred Stock, an amount equal to the Aggregate Series B Preferred Participation Amount divided by the number of then-outstanding shares of Series B Preferred Stock.
6
If the amounts available for distribution by the Corporation to holders of Series A Redeemable Preferred Stock upon a Liquidation Event are not sufficient to pay the aggregate Series A/B Liquidation Preference Amount, then the entire assets and funds of the Corporation legally available for distribution shall be distributed among the holders of the Designated Preferred Stock on a pari passu basis in proportion to the Series A/B Liquidation Preference Amount each such holder is otherwise entitled to receive pursuant to this Section A.3(a)(ii).
(b) Remaining Assets. In connection with a Liquidation Event, after the prior payment in full of the aggregate Series B Senior Liquidation Preference Amount, the Series A/B Liquidation Preference Amount and, thereafter, any amount payable upon a Liquidation Event to the holders of any other class or series of capital stock ranking on liquidation senior to the Common Stock, the remaining assets and funds of the Corporation available for distribution to its stockholders, if any, shall be distributed ratably to the holders of the Common Stock and the holders of Series B Preferred Stock, as a single class, in proportion to the respective number of shares of Common Stock actually held by them and the respective number of shares of Common Stock (including any fractional shares) into which the shares of Series B Preferred Stock could be converted as of the date of the Liquidation Event.
(c) Amount Payable in Mergers, etc. Each of the holders of not less than a majority of the outstanding shares of Series A Redeemable Preferred Stock (the “Series A Required Holders”) and the holders of not less than a majority of the outstanding shares of Series B Preferred Stock (the “Series B Required Holders”) may elect to have treated, as to the series which shall have so elected, as a Liquidation Event: (i) any merger or consolidation of the Corporation into or with another corporation (except one in which the holders of capital stock of the Corporation immediately prior to such merger or consolidation continue to hold, in substantially the same relative proportions, at least a majority of the economic interests and voting power of the capital stock of the surviving corporation), (ii) any sale, lease or transfer of all or substantially all of the assets of the Corporation, or (iii) any other transaction pursuant to or as a result of which a single person (or group of affiliated persons) other than Great Hill (together with its affiliates) acquires or holds capital stock of the Corporation representing a majority of votes entitled to be cast in any election of directors of the Corporation (a “Change of Control Transaction”). In addition, the Series B Required Holders may also elect to have treated as a Change of Control Transaction and thus as a Liquidation Event any “Change of Control” (as defined in the Series B Purchase Agreement). If such election is made, all consideration payable to the stockholders of the Corporation in connection with any such merger, consolidation, or Change of Control Transaction, or all consideration payable to the Corporation and distributable to its stockholders, together with all other available assets of the Corporation (net of obligations owed by the Corporation that are senior to any outstanding Designated Preferred Stock), in connection with any such asset sale, shall be paid by the purchaser to the holders of, or distributed by the Corporation in redemption (out of funds legally available therefor) of, such series of capital stock of the Corporation in accordance with the preferences and priorities set forth in Section A.3(a) and Section A.3(b), above, with such preferences and priorities specifically intended to be applicable in any such merger, consolidation, asset sale, or Change of Control Transaction as if such transaction were a Liquidation Event (including, with respect to the Series B Preferred Stock, payment of the Aggregate Series B Preferred Participation Amount and all amounts that would be payable under Section A.3(b), irrespective of whether the Series A
Preferred Stock has so elected). In furtherance of the foregoing, the Corporation shall take such actions as are necessary to give effect to the provisions of this Section A.3(c), including without limitation, (i) in the case of a merger, consolidation or Change of Control Transaction, causing the definitive agreement relating to such merger, consolidation or Change of Control Transaction to provide for a rate at which the shares of capital stock of the Corporation are converted into or exchanged for cash, new securities or other property which gives effect to the preferences and priorities of the capital stock of the Corporation as set forth in Section A.3(a) and Section A.3(b) above, or (ii) in the case of an asset sale, (A) paying in full the Series B Senior Liquidation Preference Amount, (B) thereafter paying in full the Series A/B Liquidation Preference Amount and (C) thereafter distributing any remaining amounts pursuant to Section A.3(a), in each case to the extent of available funds and on the terms provided herein. The Corporation shall promptly provide to the holders of shares of Designated Preferred Stock such information concerning the terms of such merger, consolidation, asset sale, or Change of Control Transaction and the value of the assets of the Corporation as may reasonably be requested by any holder of Designated Preferred Stock. The amount deemed distributed to the holders of shares of capital stock of the Corporation upon any such transaction shall be the cash or the value of the property, rights or securities distributed to such holders by the Corporation or the acquiring person, firm or other entity. Any election pursuant to this Section A.3(c) by a Series A Required Holders or the Series B Required Holders shall be made by written notice to the Corporation at least five (5) days prior to the closing of the relevant transaction. Upon any such election, all holders of Designated Preferred Stock, shall be deemed to have made such election and such election shall bind all such holders.
(d) Valuation of Securities or Other Non-Cash Consideration. For purposes of valuing any securities or other noncash consideration to be delivered to the holders of the Designated Preferred Stock in connection with any transaction to which Section A.3(c) is applicable, the following shall apply:
(i) If any such securities are traded on a nationally recognized securities exchange or inter-dealer quotation system, the value shall be deemed to be the average of the closing prices of such securities on such exchange or system over the 30-day period ending three (3) business days prior to the closing;
(ii) If any such securities are traded over-the-counter, the value shall be deemed to be the average of the closing bid prices of such securities over the 30-day period ending three (3) business days prior to the closing; and
(iii) If there is no active public market for such securities or other noncash consideration, the value shall be the fair market value thereof, as mutually determined in good faith by the Corporation, the Series B Required Holders and the Series A Required Holders; provided, that if the Corporation and such holders are unable to reach agreement, then by independent appraisal by a mutually agreed to investment banker, the fees of which shall be paid by the Corporation.
4. Mandatory and Optional Distributions in Respect of Series B Preferred Stock.
(a) Mandatory Distributions. The Series B Required Holders may elect to require the Corporation to make a mandatory payment in cash in an amount equal to all but not less than all of the Series B Senior Liquidation Preference (A) on or at any time after March 3,
2010 (the “Series B Maturity Date”), or (B) upon the closing of the Corporation’s initial public offering of common equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended (an “IPO”). In such event, the Corporation shall pay in cash, out of funds legally available therefor, the Series B Senior Liquidation Preference Amount to the holders of Series B Preferred Stock on the Series B Mandatory Distribution Date set forth below. Any election by the Series B Required Holders pursuant to this Section A.4(a) shall be made by written notice to the Corporation and the other holders of Series B Preferred Stock at least fifteen (15) days prior to the date elected by the Series B Required Holders for such payment (the “Series B Mandatory Distribution Date”). Upon such election, all holders of Series B Preferred Stock shall be deemed to have elected to receive payment of their pro rata portion of the Series B Senior Liquidation Preference Amount pursuant to this Section A.4(a) and such election shall bind all holders of Series B Preferred Stock.
(b) Optional Prepayments of Series B Senior Liquidation Preference Amount. At any time after repayment in full of the senior subordinated notes issued pursuant to the Series B Purchase Agreement (the “BACI Notes”), the Corporation shall be entitled at its option to distribute cash in full in an amount equal to all, but not less than all (except in connection with a Liquidation Event in which the proceeds available for distribution are insufficient therefor), of the Series B Senior Liquidation Preference Amount as of the date of such payment, upon the delivery by the Corporation of not less than five (5) business days’ advance written notice of the Corporation’s desire to make such payment.
(c) Insufficient Funds. If the funds of the Corporation legally available to distribute to holders of the Series B Preferred Stock on the Series B Mandatory Distribution Date, are insufficient to pay in full in cash the Series B Senior Liquidation Preference Amount on such date, the Corporation shall take any action necessary or appropriate, to the extent reasonably within its control, to remove promptly any impediments to its ability to make such distribution in full, and, in any event, shall use any funds that are legally available to pay the maximum possible amount to the holders of Series B Preferred Stock in proportion to the portion of the Series B Senior Liquidation Preference Amount each such holder is then entitled to receive in full. At any time thereafter when additional funds of the Corporation are legally available to distribute to holders of capital stock of the Corporation, the Corporation shall immediately use such funds to distribute to the holders of Series B Preferred Stock the balance of the Series B Senior Liquidation Preference Amount to the full extent of such available funds.
(d) No Dividends After Distribution in Full. Upon payment in full of the Series B Senior Liquidation Preference Amount, no further dividends shall accrue pursuant to Section A.2(a) in respect of the Series B Preferred Stock; provided, that (i) so long as any share of Series B Preferred Stock remains outstanding, the holder thereof shall remain entitled to participate in dividends and distributions made in respect of (A) the Series A Redeemable Preferred Stock as set forth in Section A.2(b) and (B) the Common Stock as set forth in Section A.2(c) and (ii) in the event that any portion of the Series B Senior Liquidation Preference Amount remains unpaid, such shares of Series B Preferred Stock shall continue to be entitled to dividends thereon as provided in Section A.2(a) until the date on which the Corporation actually pays the Series B Senior Liquidation Preference Amount in full.
5. Redemption. The Designated Preferred Stock shall be entitled to the redemption rights set forth in this Section A.5.
(a) Redemption at Option of the Series A Required Holders. The Series A Required Holders may elect to have all (but not less than all) of the outstanding shares of Designated Preferred Stock redeemed (A) on or at any time after March 3, 2011 (the “Series A Redeemable Maturity Date”) or (B) upon the closing of the Corporation’s IPO. In such event, the Corporation shall redeem all (but not less than all) of the outstanding shares of Designated Preferred Stock in cash, out of funds legally available therefor, at the Series A Redeemable Redemption Price or the Series B Redemption Price, each as specified in Section A.5(b). Any election by the Series A Required Holders pursuant to this Section A.5(a) shall be made by written notice to the Corporation and the other holders of Designated Preferred Stock at least fifteen (15) days prior to the date elected by the Series A Required Holders for redemption (the “Series A Redeemable Redemption Date”). Upon such election, all holders of Designated Preferred Stock shall be deemed to have elected to have their shares of Designated Preferred Stock redeemed pursuant to this Section A.5(a) and such election shall bind all holders of Designated Preferred Stock.
(b) Redemption Price. The price for each share of Designated Preferred Stock redeemed pursuant to this Section A.5 shall be as follows:
(i) With respect to each share of Series A Redeemable Preferred Stock, an amount of cash equal to the Series A Redeemable Liquidation Preference Amount as of such date (such amount to be adjusted appropriately for stock splits, stock dividends, combinations, recapitalizations (the “Series A Redeemable Redemption Price”)); and
(ii) With respect to each share of Series B Preferred Stock, (A) payment of an amount of cash equal to the Aggregate Series B Senior Participation Amount as of such date divided by the number of then-outstanding shares of Series B Preferred Stock and (B) issuance by the Corporation of that number of shares of fully-paid and non-assessable Common Stock into which the Series B Preferred Stock could then be converted pursuant to Section A.6 (the “Series B Redemption Price”).
The aggregate Series A Redeemable Redemption Price and the cash component of the Series B Redemption Price shall be payable, out of funds legally available therefor, in cash in immediately available funds to the respective holders of the Designated Redeemable Preferred Stock on the Designated Preferred Redemption Date.
(c) Redemption of Series B Preferred Stock at the Option of the Corporation. At any time after repayment in full of the BACI Notes and after or concurrently with the payment in full of the Series B Senior Liquidation Preference Amount, the Corporation may voluntarily redeem, all, but not less than all of the Series B Preferred Stock at the Series B Redemption Price by payment in cash in full of the cash component thereof and concurrent issuance of the Common Stock component thereof; provided, that if such redemption is effected without concurrent redemption of the outstanding shares of Series A Redeemable Preferred Stock, (i) the Corporation shall have obtained the consent thereto of Series A Required Holders and (ii) the Series B Preferred Participation Amount shall be calculated based on the aggregate Series A Redeemable Preferred Stock Liquidation Preference Amount as of the date of such redemption. Upon the delivery by the Corporation of written notice to the holders of Series B
Preferred Stock stating the Corporation’s desire to redeem the Series B Preferred Stock pursuant to this Section A.4(c), each holder of Series B Preferred Stock shall be required to tender for redemption all of the Series B Preferred Stock held by each such holder. Each holder shall deliver certificates for the shares of Series B Preferred Stock to be redeemed by the Corporation (or such affidavits, indemnity and undertakings as would be necessary to replace any such certificate claimed to have been lost, stolen or destroyed) at the closing therefor held within ten (10) business days after the date of the Corporation’s written notice, against (i) payment of the cash component of Series B Redemption Price therefor made in cash or other immediately available funds and (ii) delivery of a certificate for the fully-paid and non-assessable shares of Common Stock representing the Common Stock component of such Series B Redemption Price.
(d) Insufficient Funds. If the funds of the Corporation legally available to redeem shares of Designated Preferred Stock on the Designated Preferred Redemption Date, are insufficient to redeem the total number of such shares required to be redeemed on such date, the Corporation shall take any action necessary or appropriate, to the extent reasonably within its control, to remove promptly any impediments to its ability to redeem the total number of shares of Designated Preferred Stock required to be so redeemed, and, in any event, shall use any funds that are legally available to redeem on a pari passu basis the maximum possible number of such shares from the holders of such shares to be redeemed in proportion to the respective cash redemption prices that otherwise would have been paid if all such shares had been redeemed in full. At any time thereafter when additional funds of the Corporation are legally available to redeem such shares of Designated Preferred Stock, the Corporation shall immediately use such funds to redeem the balance of the shares which the Corporation has become obligated to redeem on the Designated Preferred Redemption Date, (but which it has not redeemed), at the respective Series A Redeemable Redemption Price or Series B Preferred Redemption Price.
(e) Dividends After Redemption Date. In the event that shares of Designated Preferred Stock, required to be redeemed are not redeemed and continue to be outstanding, such shares shall continue to be entitled to dividends thereon as provided in Section A.2 until the date on which the Corporation actually redeems such shares.
(f) Surrender of Certificates. Each holder of shares of Designated Preferred Stock to be redeemed shall surrender the certificate or certificates representing such shares to the Corporation, duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto), or, in the event the certificate or certificates are lost, stolen or missing, shall deliver an affidavit of loss, at the principal executive office of the Corporation or such other place as the Corporation may from time to time designate by notice to the holders of Designated Preferred Stock, and each surrendered certificate shall be canceled and retired against (i) payment of the cash component of redemption price therefor made in cash or other immediately available funds and (ii) with respect to holders of the Series B Preferred Stock, delivery of a certificate for the fully-paid and non-assessable shares of Common Stock representing the Common Stock component of the Series B Redemption Price; provided, however, that if the Corporation has insufficient funds legally available to redeem all shares of Designated Preferred Stock, required to be redeemed, each holder shall, in addition to receiving the payment of the portion of the aggregate redemption price that the Corporation is not legally prohibited from paying to such holder by certified check or wire transfer, receive a new stock certificate for those shares of Designated Preferred Stock not so redeemed.
6. Conversion of Series B Preferred Stock. The holders of the Series B Preferred Stock shall have conversion rights as follows:
7. Voting; Covenants.
(a) Series A Redeemable Preferred Stock. Except as otherwise required under applicable law or as set forth in this Section A.7, the holders of Series A Redeemable Preferred Stock, in their capacity as such, shall not be entitled or permitted to vote on any matter required or permitted to be voted upon by the stockholders of the Corporation. Notwithstanding the foregoing, the Corporation shall not, without first having provided written notice of such proposed action to each holder of outstanding shares of Series A Redeemable Preferred Stock and having obtained the affirmative vote or written consent of the Series A Required Holders:
(i) declare or pay any dividends on, or make any distributions of cash, property or securities of the Corporation in respect of, or apply any of its assets to the redemption, retirement, purchase or other acquisition of, the Common Stock or any other class or series of capital stock ranking with respect to dividends and upon liquidation and redemption junior to the Series A Redeemable Preferred Stock (the “Series A Junior Stock”), directly or indirectly, through subsidiaries or otherwise, except for (A) the redemption or repurchase of any Options or shares of Common Stock (the “Excluded Shares”); provided, that the aggregate price paid for all such repurchased or redeemed Excluded Shares may not exceed $750,000 in the aggregate or $250,000 in the aggregate in any twelve-month period, pursuant to the terms of any agreements entered into between the Corporation and any holders of such Excluded Shares which have been approved by the Corporation’s Board of Directors; and (B) stock splits or stock dividends on the Common Stock payable solely in additional shares of Common Stock;
(ii) amend or alter the designations, preferences, powers and/or the relative, participating, optional or other special rights, or the restrictions provided for the benefit of, the Series A Redeemable Preferred Stock;
(iv) authorize, issue or agree to issue, or reclassify any shares of other class or series of capital stock ranking with respect to dividends and upon liquidation and redemption junior to the Series A Junior Stock into, any shares or any security
convertible into or exercisable for any shares having any preference or priority as to dividends, any other distributions, payments or assets or upon redemption, liquidation, winding up or dissolution superior to or on a parity with any such preference or priority of the Series A Preferred Stock.
8. Notice.
(a) Liquidation Events, Etc. In the event (i) the Corporation establishes a record date to determine the holders of any class of securities who are entitled to receive any dividend or other distribution or who are entitled to vote at a meeting (or by written consent) in connection with any of the transactions identified in clause (ii) hereof, or (ii) any Liquidation Event, event deemed a Liquidation Event pursuant to Section A.3(c) hereof, or initial public offering becomes reasonably likely to occur, the Corporation shall mail or cause to be mailed by first class mail (postage prepaid) to each holder of Designated Preferred Stock at least ten (10) business days prior to such record date specified therein or the expected effective date of any such transaction, whichever is earlier, a notice specifying (A) the date of such record date for the purpose of such dividend or distribution or meeting or consent and a description of such dividend or distribution or the action to be taken at such meeting or by such consent, (B) the date on which any such Liquidation Event, event deemed a Liquidation Event pursuant to Section A.5(c) hereof, or public offering is expected to become effective, and (C) the date on which the books of the Corporation shall close or a record shall be taken with respect to any such event. Such notice shall be accompanied by a certificate prepared by the chief financial officer of the Corporation describing in detail (1) the facts of such transaction, (2) the amount per share of Designated Preferred Stock and Common Stock that each holder of Designated Preferred Stock, would receive pursuant to the applicable provisions of this Amended and Restated Certificate of Incorporation, if any, and (3) the facts upon which such amounts were determined.
(b) Waiver of Notice. The Series A Required Holders or the Series B Required Holders respectively may, at any time upon written notice to the Corporation, waive any notice provisions specified herein for the benefit of the holders of such series of Designated Preferred Stock, and any such waiver shall be binding upon all holders of Series Redeemable Preferred Stock or Series B Preferred Stock, respectively.
(c) Other Waivers. The Series A Required Holders or the Series B Required Holders respectively may, at any time upon written notice to the Corporation, waive compliance by the Corporation with any term or provision herein for the benefit of the holders of such series of Designated Preferred Stock and, provided that any such waiver does not affect any holder of outstanding shares of such series, in a manner materially different than any other holder of such series, and any such waiver shall be binding upon all holders of all holders of Series Redeemable Preferred Stock or Series B Preferred Stock, respectively, and their respective transferees.
(d) General. In the event that the Corporation provides any notice, report or statement to any holder of Common Stock, the Corporation shall at the same time provide a copy of any such notice, report or statement to each holder of outstanding shares of Designated Redeemable Preferred Stock.
9. No Reissuance of Designated Preferred Stock. No share or shares of Preferred Stock acquired by the Corporation by reason of redemption or otherwise shall be reissued, and all such shares shall be canceled, retired and eliminated from the shares which the Corporation shall be authorized to issue.
10. Contractual Rights of Holders. The various provisions set forth herein for the benefit of the holders of the Designated Preferred Stock shall be deemed contract rights enforceable by them, including, without limitation, by one or more actions for specific performance.
1. Voting.
(a) Election of Directors. The holders of Common Stock shall be entitled to elect all of the Directors of the Corporation other than those directors that, under this Amended and Restated Certificate of Incorporation, as the same may be amended and/or amended and restated from time to time, are to be specifically designated or elected by the holders of any particular class or series of capital stock of the Corporation. Such Director(s) shall be elected by a plurality vote, with the elected candidates being the candidates receiving the greatest number of affirmative votes (with each holder entitled to cast one vote for or against each candidate with respect to each share held by such holder), with votes cast against such candidates and votes withheld having no legal effect. The election of such Directors shall occur at the annual meeting of holders of capital stock or at any special meeting called and held in accordance with the by-laws of the Corporation, or by consent in lieu thereof in accordance with this Amended Restated Certificate of Incorporation, as the same may be amended and/or amended and restated from time to time, the by-laws of the Corporation and applicable law.
(b) Voting Generally. Except as otherwise expressly provided herein or required by law, each holder of outstanding shares of Common Stock shall be entitled to one (1) vote in respect of each share of Common Stock held thereby of record on the books of the Corporation for the election of directors and on all matters submitted to a vote of stockholders of the Corporation.
2. Dividends. Subject to the payment in full of all preferential dividends to which the holders of the Designated Preferred Stock or any other class or series of capital stock ranking with respect to the payment of dividends senior to the Common Stock are entitled hereunder, the holders of Common Stock shall be entitled to receive dividends out of funds legally available therefor at such times and in such amounts as the Board of Directors may determine in its sole discretion and subject to the provisions of Section A.2(c) above.
3. Liquidation. Upon any Liquidation Event, including any event deemed to be a Liquidation Event pursuant to Section A.3(c) above, after the payment or provision for payment of all debts and liabilities of the Corporation and all preferential amounts to which the holders of the Designated Preferred Stock and any other class or series of capital stock ranking on liquidation senior to the Common Stock are entitled with respect to the distribution of assets in liquidation, the remaining assets and funds of the Corporation available for distribution to its stockholders, if any, shall be distributed ratably to the holders of the Common Stock and the holders of Series B Preferred Stock, as a single class, in proportion to the respective number of shares of Common Stock actually held by them and the respective number of shares of Common
Stock (including any fractional shares) into which the shares of Series B Preferred Stock could be converted as of the date of the Liquidation Event, as set forth in Section A.3.
D. LIMITATIONS ON PAYMENT
Notwithstanding anything to the contrary contained herein, no payment or distribution shall be made in respect of any share of the Corporation’s capital stock and the Corporation shall not be obligated to take any action hereunder, if such payment or distribution would result in a default or event of default pursuant to the terms of any agreement, document or instrument governing the BACI Notes, the Corporation’s Senior Secured Notes due March 31, 2009 (the “Senior Secured Notes”) or any Permitted Refinancing Debt issued in exchange for or used to renew, refund, refinance, replace or discharge the Senior Secured Notes as defined in and incurred in accordance with the terms of the Series B Purchase Agreement.
ARTICLE V
1. Election of Directors need not be by written ballot unless the by-laws of the Corporation so provide.
2. Except as otherwise specifically provided in this Amended and Restated Certificate of Incorporation, as the same may be amended and/or amended and restated from time to time, the Board of Directors is expressly authorized to adopt, amend or repeal the by-laws of the Corporation to the extent specified therein.
ARTICLE VI
ARTICLE VII
ARTICLE VIII
2. Procedure for Indemnification. Any indemnification of a Director or officer of the Corporation or advance of expenses under Section 2 of this ARTICLE VIII shall be made promptly, and in any event within forty-five days (or, in the case of an advance of expenses, twenty days), upon the written request of the Director or officer. If a determination by the
Corporation that the Director or officer is entitled to indemnification pursuant to this ARTICLE VIII is required, and the Corporation fails to respond within sixty days to a written request for indemnity, the Corporation shall be deemed to have approved the request. If the Corporation denies a written request for indemnification or advance of expenses, in whole or in part, or if payment in full pursuant to such request is not made within forty-five days (or, in the case of an advance of expenses, twenty days), the right to indemnification or advances as granted by this ARTICLE VIII shall be enforceable by the Director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of expenses where the undertaking required pursuant to Section 2 of this ARTICLE VIII, if any, 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 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. The procedure for indemnification of other employees and agents for whom indemnification is provided pursuant to Section 2 of this ARTICLE VIII shall be the same procedure set forth in this Section 3 for Directors or officers, unless otherwise set forth in the action of the Board of Directors providing indemnification for such employee or agent.
3. Insurance. The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a Director, officer, employee or agent of the Corporation or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred by him or her in any such capacity, whether or not the Corporation would have the power to indemnify such person against such expenses, liability or loss under the Delaware General Corporation Law.
4. Reliance. Persons who after the date of the adoption of this provision become or remain Directors or officers of the Corporation or who, while a Director or officer of the Corporation, become or remain a Director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this ARTICLE VIII in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this ARTICLE VIII shall apply to claims made against an indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.
5. Non-Exclusivity of Rights. The rights to indemnification and to the advance of expenses conferred in this ARTICLE VIII shall not be exclusive of any other right which any
person may have or hereafter acquire under this Restated Certificate or under any statute, by-law, agreement, vote of stockholders or disinterested Directors or otherwise.
6. Merger or Consolidation. For purposes of this ARTICLE VIII, references to the “Corporation” shall include, in addition to the resulting Corporation, any constituent Corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its Directors, officers and employees or 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 this ARTICLE VIII with respect to the resulting or surviving Corporation as he or she would have with respect to such constituent Corporation if its separate existence had continued.
7. Modifications. Any repeal or modification of this Article VIII by the stockholders of the Corporation or by an amendment to the Delaware General Corporation Law shall not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts or omissions occurring either before or after such repeal or modification, of a person serving as a Director prior to or at the time of such repeal or modification.
ARTICLE IX
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