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OSI COLLECTION SERVICES INC
·
10-K
Mar 31, 5:18 PM ET
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OSI COLLECTION SERVICES INC 10-K
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Contents
49
Name. The name of the Corporation is NCO Group, Inc.
Registered Office and Agent. The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.
Purpose. The purposes for which the Corporation is formed are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”) and to possess and exercise all of the powers and privileges granted by such law and any other law of the State of Delaware.
A. PREFERRED STOCK - IN GENERAL
1. Issue in Series. Preferred Stock may be issued from time to time in one or more series, each such series to have the terms stated herein or in the resolution of the Board of Directors of the Corporation providing for its issue (as such resolution may be amended by a resolution or resolutions subsequently adopted by the Board of Directors). All shares of any one series of Preferred Stock will be identical, but shares of different series of Preferred Stock need not be identical or rank equally except insofar as provided by law or herein.
2. Creation of Series. The Board of Directors will have authority by resolution to cause to be created one or more series of Preferred Stock, and to determine and fix with respect to each series prior to the issuance of any shares of the series to which such resolution relates:
a. The distinctive designation of the series and the number of shares which will constitute the series, which number may be increased or decreased (but not below the number of shares then outstanding) from time to time by action of the Board of Directors;
b. The dividend rate and the times of payment of dividends on the shares of the series, whether dividends will be cumulative, and if so, from what date or dates;
c. The price or prices at which, and the terms and conditions on which, the shares of the series may be redeemed at the option of the Corporation;
d. Whether or not the shares of the series will be entitled to the benefit of a retirement or sinking fund to be applied to the purchase or redemption of such shares and, if so entitled, the amount of such fund and the terms and provisions relative to the operation thereof;
e. Whether or not the shares of the series will be convertible into, or exchangeable for, any other shares of stock of the Corporation or other securities, and if so convertible or exchangeable, the conversion price or prices, or the rates of exchange, and any adjustments thereof, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange;
f. The rights of the shares of the series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation;
g. Whether or not the shares of the series will have priority over or be on a parity with or be junior to the shares of any other series or class in any respect or will be entitled to the benefit of limitations restricting the issuance of shares of any other series or class having priority over or being on a parity with the shares of such series in any respect, or restricting the payment of dividends on or the making of other distributions in respect of shares of any other series or class ranking junior to the shares of the series as to dividends or assets, or restricting the purchase or redemption of the shares of any such junior series or class, and the terms of any such restriction;
h. Whether the series will have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights; and
i. Any other preferences, qualifications, privileges, options and other relative or special rights and limitations of that series.
3. Voting Rights. Except as otherwise required by law, as otherwise provided herein or as otherwise determined by the Board of Directors as to the shares of any series of Preferred Stock prior to the issuance of any such shares, the holders of Preferred Stock shall have no voting rights and shall not be entitled to any notice of meeting of stockholders.
4. Reservation of Right. The Board of Directors of the Corporation reserves the right by subsequent amendment of (i) this Certificate of Incorporation or (ii) the resolutions of the Board of Directors providing for the creation of a series of Preferred Stock (the “Adopting Resolutions”), to increase or decrease the number of shares constituting Preferred Stock or any series thereof (but not below the number of shares then outstanding) and in any other respects to amend this Certificate of Incorporation or the Adopting Resolutions, in each case, within the limits provided by law, this Certificate of Incorporation and any applicable contract or instrument binding on the Corporation.
B. SERIES A PREFERRED STOCK; SERIES B PREFERRED STOCK AND COMMON STOCK
The first series of Preferred Stock shall be designated as Series A 14% PIK Preferred Stock (“Series A Preferred Stock”), and the number of shares which shall constitute such series shall be Six Million (6,000,000). The par value of Series A Preferred Stock shall be $.01 per share. The second series of Preferred Stock shall be designated as Series B-1 19% PIK Preferred Stock (“Series B-1 Preferred Stock”), and the number of shares which shall constitute such series shall be Eight Hundred Thousand (800,000). The par value of Series B-1 Preferred Stock shall be $.01 per share. The third series of Preferred Stock shall be designated as Series B-2 19% Preferred Stock (“Series B-2 Preferred Stock” and, together with Series B-1 Preferred Stock, “Series B Preferred Stock”), and the number of shares which shall constitute such series shall be Two Hundred Thousand (200,000). The par value of Series B-2 Preferred Stock shall be $.01 per share. Except as otherwise provided herein, all shares of Series A Preferred Stock, Series B-1 Preferred Stock, Series B-2 Preferred Stock, Class L Common Stock and Class A Common Stock shall be identical and shall entitle the holders thereof to the same rights and privileges.
1. Subdivision and Combinations of Shares. If the Corporation in any manner subdivides (by stock split, stock dividend or otherwise) or combines (by stock split, stock dividend or otherwise) the outstanding shares of Series A Preferred Stock, then the outstanding shares of each series of Series B Preferred Stock and the outstanding shares of each class of Common Stock shall be proportionately subdivided or combined. If the Corporation in any manner subdivides (by stock split, stock dividend or otherwise) or combines (by stock split, stock dividend or otherwise) the outstanding shares of any series of Series B Preferred Stock, then the outstanding shares of each other series of Series B Preferred Stock, the outstanding shares of Series A Preferred Stock, and the outstanding shares of each class of Common Stock shall be proportionately subdivided or combined. If the Corporation in any manner subdivides (by stock split, stock dividend or otherwise) or combines (by stock split, stock dividend or otherwise) the outstanding shares of any class of Common Stock, then the outstanding shares of Series A Preferred Stock, the outstanding shares of each series of Series B Preferred Stock, and
the outstanding shares of each other class of Common Stock shall be proportionately subdivided or combined. Any such subdivision or combination shall be payable in shares of Series A Preferred Stock to holders of Series A Preferred Stock, in shares of Series B-1 Preferred Stock to holders of Series B-1 Preferred Stock, in shares of Series B-2 Preferred Stock to holders of Series B-2 Preferred Stock, in shares of Class L Common Stock to holders of Class L Common Stock and in shares of Class A Common Stock to holders of Class A Common Stock. In no event shall a stock split or stock dividend constitute a payment of Yield or Base Amount.
2. Distribution Priority. At the time of each Distribution, such Distribution shall be made to the holders of the Series A Preferred Stock, Series B-1 Preferred Stock, Series B-2 Preferred Stock, Class L Common Stock and Class A Common Stock in the following priority:
a. The holders of Series B-1 Preferred Stock and the holders of Series B-2 Preferred Stock shall, in the aggregate, be entitled to receive all or a portion of such Distribution in an amount equal to the sum of (i) the aggregate Unpaid Base Amount of the outstanding shares of Series B-1 PIK Stock, (ii) the aggregate Unpaid Yield of the outstanding shares of Series B-1 Preferred Stock and (iii) the aggregate Unpaid Yield of the outstanding shares of Series B-2 Preferred Stock, each as of the time of such Distribution (such sum, the “First Tier Amount”), and no Distribution or any portion thereof shall be made under paragraphs B.2(b), B.2(c), B.2(d) or B.2(e) of Article V until the entire First Tier Amount as of the time of such Distribution has been paid in full.
(i) The holders of Series B-1 Preferred Stock shall, in the aggregate, be entitled to a portion of any Distribution made pursuant to paragraph B.2(a) of Article V equal to the product of the amount of such Distribution multiplied by the quotient of (i) the sum of the aggregate Unpaid Base Amount of the outstanding shares of Series B-1 PIK Stock and the aggregate Unpaid Yield of the outstanding shares of Series B-1 Preferred Stock divided by (ii) the First Tier Amount (such product, the “Series B-1 First Tier Distribution”). Each holder of Series B-1 Preferred Stock shall be entitled to receive a ratable portion of the Series B-1 First Tier Distribution based on the sum of the aggregate Unpaid Base Amount of the Series B-1 PIK Stock held by such holder plus the aggregate Unpaid Yield of the Series B-1 Preferred Stock held by such holder, compared to the sum of the aggregate Unpaid Base Amount of the outstanding shares of Series B-1 PIK Stock plus the aggregate Unpaid Yield of the outstanding shares of Series B-1 Preferred Stock, in each case, as of the time of such Distribution. Distributions made pursuant to this subparagraph B.2(a)(i) of Article V to holders of Series B-1 Preferred Stock shall constitute, with respect to each outstanding share of Series B-1 Preferred Stock (i) first a payment of Yield to the extent of the Unpaid Yield with respect to such share and (ii) then a payment of the Base Amount of the Series B-1 PIK Stock.
b. After the required amount of a Distribution has been made in full pursuant to paragraph B.2(a) of Article V, the holders of Series B-1 Preferred Stock and Series B-2 Preferred Stock shall, in the aggregate, be entitled to receive all or a portion of such Distribution in an amount equal to the sum of (i) the aggregate Unpaid Base Amount of the outstanding shares of Series B-1 Preferred Stock and (ii) the aggregate Unpaid Base Amount of the outstanding shares of Series B-2 Preferred Stock, each as of the time of such Distribution (such sum, the “Second Tier Amount”), and no Distribution or any portion thereof shall be made under paragraph B.2(c), B.2(d) or B.2(e) of Article V until the entire amount of the Second Tier Amount as of the time of such Distribution has been paid in full.
(i) The holders of Series B-1 Preferred Stock shall, in the aggregate, be entitled to a portion of any Distribution made pursuant to paragraph B.2(b) of Article V equal to the product of the amount of such Distribution multiplied by the quotient of (i) the aggregate Unpaid Base Amount of the outstanding shares of Series B-1 Preferred Stock divided by (ii) the Second Tier Amount (such product, the “Series B-1 Second Tier Distribution”). Each holder of Series B-1 Preferred Stock shall be entitled to receive a ratable portion of the Series B-1 Second Tier Distribution based on the aggregate Unpaid Base Amount of each share of Series B-1 Preferred Stock held by such holder, compared to the sum of the aggregate Unpaid Base Amount of the outstanding shares of Series B-1 Preferred Stock, in each case, as of the time of such Distribution; provided, that no holder shall receive a Distribution in respect of any share of Series B-1 Preferred Stock pursuant to this subparagraph B.2(b)(i) of Article V to the extent such Distribution exceeds the Unpaid Base Amount of such share. Distributions made pursuant to this subparagraph B.2(b)(i) of Article V to holders of Series B-1 Preferred Stock shall constitute, with respect to the outstanding shares of Series B-1 Preferred Stock, a payment of the Base Amount.
c. After the required amount of a Distribution has been made in full pursuant to paragraph B.2(a) and B.2(b) of Article V, the holders of Series A Preferred Stock and the holders of Class L Common Stock shall, in the aggregate, be entitled to receive all or a portion of such Distribution in an amount equal to the sum of (i) the aggregate Unpaid Base Amount of the outstanding shares of Series A PIK Stock, (ii) the aggregate Unpaid Yield of the outstanding shares of Series A Preferred Stock and (iii) the aggregate Unpaid Yield of the Class L Common Stock, each as of the time of such Distribution (such sum, the “Third Tier Amount”), and no Distribution or any portion thereof shall be made under paragraphs B.2(d) or B.2(e) of Article V until the entire Third Tier Amount as of the time of such Distribution has been paid in full.
(i) The holders of Series A Preferred Stock shall, in the aggregate, be entitled to a portion of any Distribution made pursuant to paragraph B.2(c) of Article V equal to the product of the amount of such Distribution multiplied by the quotient of (i) the sum of the aggregate Unpaid Base Amount of the outstanding shares of Series A PIK Stock and the aggregate Unpaid Yield of the outstanding shares of Series A Preferred Stock divided by (ii) the Third Tier Amount (such product, the “Series A Third Tier Distribution”). Each holder of Series A Preferred Stock shall be entitled to receive a ratable portion of the Series A Third Tier Distribution based on the sum of the aggregate Unpaid Base Amount of the Series A PIK Stock held by such holder plus the aggregate Unpaid Yield of the Series A Preferred Stock held by such holder, compared to sum of the aggregate Unpaid Base Amount of the outstanding shares of Series A PIK Stock plus the aggregate Unpaid Yield of the outstanding shares of Series A Preferred Stock, in each case, as of the time of such Distribution. Distributions made pursuant to this subparagraph B.2(c)(i) of Article V to holders of Series A Preferred Stock shall constitute, with respect to each outstanding share of Series A Preferred Stock (i) first a payment of Yield to the extent of the Unpaid Yield with respect to such share and (ii) then a payment of the Base Amount of the Series A PIK Stock.
(ii) The holders of the outstanding shares of Class L Common Stock shall, in the aggregate, be entitled to a portion of any Distribution made pursuant to paragraph B.2(c) of Article V equal to the product of the amount of such Distribution multiplied by the quotient of (i) the aggregate Unpaid Yield of the outstanding shares of Class L Common Stock divided by (ii) the Third Tier Amount (such product, the “Class L Third Tier Distribution”). Each holder of Class L Common Stock shall be entitled to receive a ratable portion of the Class L Third Tier Distribution, based on the aggregate Unpaid Yield of the Class L Common Stock held by such holder, compared to the aggregate Unpaid Yield of the outstanding shares of Class L Common Stock, in each case, as of the time of such Distribution. Distributions made pursuant to this subparagraph B.2(c)(ii) of Article V to holders of Class L Common Stock shall constitute, with respect to outstanding shares of Class L Common Stock, a payment of Yield.
d. After the required amount of a Distribution has been made in full pursuant to paragraph B.2(a), B.2(b) and B.2(c) of Article V, the holders of Series A Preferred Stock and Class L Common Stock shall, in the aggregate, be entitled to receive all or a portion of such Distribution in an amount equal to the sum of (i) the aggregate Unpaid Base Amount of the outstanding shares of Series A Preferred Stock and (ii) the aggregate Unpaid Base Amount of the outstanding shares of Class L Common Stock, each as of the time of such Distribution (such sum, the “Fourth Tier Amount”), and no Distribution or any portion thereof shall be made under
paragraph B.2(e) of Article V until the entire amount of the Fourth Tier Amount as of the time of such Distribution has been paid in full.
(i) The holders of Series A Preferred Stock shall, in the aggregate, be entitled to a portion of any Distribution made pursuant to paragraph B.2(d) of Article V equal to the product of the amount of such Distribution multiplied by the quotient of (i) the aggregate Unpaid Base Amount of the outstanding shares of Series A Preferred Stock divided by (ii) the Fourth Tier Amount (such product, the “Series A Fourth Tier Distribution”). Each holder of Series A Preferred Stock shall be entitled to receive a ratable portion of the Series A Fourth Tier Distribution based on the aggregate Unpaid Base Amount of each share of Series A Preferred Stock held by such holder, compared to the sum of the aggregate Unpaid Base Amount of the outstanding shares of Series A Preferred Stock, in each case, as of the time of such Distribution; provided, that no holder shall receive a Distribution in respect of any share of Series A Preferred Stock pursuant to this subparagraph B.2(d)(i) of Article V to the extent such Distribution exceeds the Unpaid Base Amount of such share. Distributions made pursuant to this subparagraph B.2(d)(i) of Article V to holders of Series A Preferred Stock shall constitute, with respect to the outstanding shares of Series A Preferred Stock, a payment of the Base Amount.
(ii) The holders of the outstanding shares of Class L Common Stock shall, in the aggregate, be entitled to a portion of any Distribution made pursuant to paragraph B.2(d) of Article V equal to the product of the amount of such Distribution multiplied by the quotient of (i) the aggregate Unpaid Base Amount of the outstanding shares of Class L Common Stock divided by (ii) the Fourth Tier Amount (such product, the “Class L Fourth Tier Distribution”). Each holder of Class L Common Stock shall be entitled to receive a ratable portion of the Class L Fourth Tier Distribution, based on the aggregate Unpaid Base Amount of each share of Class L Common Stock held by such holder, compared to the sum of the aggregate Unpaid Base Amount of the outstanding shares of Class L Common Stock as of the time of such Distribution; provided, that no holder shall receive a Distribution in respect of any share of Class L Common Stock pursuant to this subparagraph B.2(d)(ii) of Article V to the extent such Distribution exceeds the Unpaid Base Amount of such share. Distributions made pursuant to this subparagraph B.2(d)(ii) of Article V to holders of Class L Common Stock shall constitute, with respect to outstanding shares of Class L Common Stock, a payment of the Base Amount.
e. After the required amount of a Distribution has been made pursuant to paragraphs B.2(a), B.2(b), B.2(c) and B.2(d) of Article V, the holders of Common Stock as a group shall be entitled to receive the remaining portion of such Distribution (ratably among such holders based upon the number of shares of Common Stock held by each such holder as of the time of such Distribution). The holders of Class L Common Stock shall be entitled to participate in Distributions made pursuant to this paragraph B.2.(e) of Article V even after the Unpaid Base Amount of such Class L Common Stock has been reduced to zero ($0). The Series A Preferred Stock and Series B Preferred Stock shall not be entitled to any portion of a Distribution made pursuant to this paragraph B.2(e) of Article V.
3. PIK Stock.
a. Series A PIK Stock. With respect to Series A Preferred Stock, if on any Dividend Payment Date the aggregate Unpaid Yield of the outstanding shares of Series A
Preferred Stock is greater than zero ($0) after giving effect to any Distribution made on or before such Dividend Payment Date, then the Board of Directors shall, unless prohibited by law, declare and the Corporation shall pay on such Dividend Payment Date a dividend on each share of Series A Preferred Stock outstanding by issuing to each holder of Series A Preferred Stock such number of shares (or fractional shares) of Series A Preferred Stock equal to the Unpaid Yield (with respect each share of Series A Preferred Stock held by such holder and after giving effect to any such Distribution) divided by the Base Amount of one share of Series A Preferred Stock. Each such dividend on Series A Preferred Stock shall be payable to the holders of Series A Preferred Stock as they appear on the stock register of the Corporation on such record date as may be fixed by the Board of Directors, which record date shall not be less than 10 nor more than 60 days prior to the applicable Dividend Payment Date; provided however, that no issuance of Series A PIK Stock shall occur on any Dividend Payment Date until all Series B-1 PIK Stock has been issued on such date in accordance with paragraph B.3(b) of Article V. Such stock so issued will have an Issue Date as of the Dividend Payment Date and will be validly issued, fully paid and non-assessable. Whenever a dividend is paid in Series A PIK Stock, there shall be designated as capital in respect of such shares an amount which is equal to the aggregate par value of the Series A PIK Stock issued as a dividend.
b. Series B-1 PIK Stock. With respect to Series B-1 Preferred Stock, if on any Dividend Payment Date the aggregate Unpaid Yield of the outstanding shares of Series B-1 Preferred Stock is greater than zero ($0) after giving effect to any Distribution made on or before such Dividend Payment Date, then the Board of Directors shall, unless prohibited by law, declare and the Corporation shall pay on such Dividend Payment Date a dividend on each share of Series B-1 Preferred Stock outstanding by issuing to each holder of Series B-1 Preferred Stock such number of shares (or fractional shares) of Series B-1 Preferred Stock equal to the Unpaid Yield (with respect to each share of Series B-1 Preferred Stock held by such holder and after giving effect to any such Distribution) divided by the Base Amount of one share of Series B-1 Preferred Stock. Each such dividend on Series B-1 Preferred Stock shall be payable to the holders of Series B-1 Preferred Stock as they appear on the stock register of the Corporation on such record date as may be fixed by the Board of Directors, which record date shall not be less than 10 nor more than 60 days prior to the applicable Dividend Payment Date. Such stock so issued will have an Issue Date as of the Dividend Payment Date and will be validly issued, fully paid and non-assessable. Whenever a dividend is paid in Series B-1 PIK Stock, there shall be designated as capital in respect of such shares an amount which is equal to the aggregate par value of the Series B-1 PIK Stock issued as a dividend.
4. Cancellation of Series A Preferred Stock and Series B Preferred Stock. At the time the Unpaid Base Amount of any share of Series A Preferred Stock is reduced to zero ($0) or the Unpaid Base Amount of any share of Series B Preferred Stock is reduced to zero ($0), such share of Series A Preferred Stock or Series B Preferred Stock, as the case may be, shall be cancelled and returned to the Corporation and shall no longer be outstanding for any purpose. Each holder of certificates representing such cancelled shares of Series A Preferred Stock or Series B Preferred Stock, as the case may be, shall promptly surrender the certificate or certificates representing any such shares of Series A Preferred Stock or Series B Preferred Stock, as the case may be, to the Corporation at its principal office, duly endorsed for transfer to the Corporation. In the event that less than all of the shares of Series A Preferred Stock or Series B
Preferred Stock, as the case may be, represented by any such certificate are cancelled, a new certificate shall be issued representing the shares that are not cancelled.
5. Voting Rights.
a. The holders of Series A Preferred Stock and Series B Preferred Stock shall not be entitled or permitted to vote on any matter required or permitted to be voted upon by the shareholders of the Corporation, except as otherwise required by the DGCL or this Certificate of Incorporation and except that (A) without the written consent of the holders of a majority of the outstanding shares of Series A Preferred Stock or the vote of the holders of a majority of the outstanding shares of Series A Preferred Stock at a meeting of the holders of Series A Preferred Stock called for such purpose, the Corporation shall not (i) create, authorize or issue any other class or series of stock entitled to a preference prior to Series A Preferred Stock upon any Distribution, or increase the authorized amount of any such other class or series or (ii) amend, alter or repeal any provision of the this Certificate of Incorporation so as to adversely affect the relative rights and preferences of the Series A Preferred Stock, and (B) (i) without the written consent of the holders of a majority of the outstanding shares of Series B Preferred Stock, voting together as a single series, or the vote of the holders of a majority of the outstanding shares of Series B Preferred Stock, voting together as a single series, at a meeting of the holders of Series B Preferred Stock called for such purpose, the Corporation shall not (x) create, authorize or issue any other class or series of stock entitled to a preference prior to Series B Preferred Stock upon any Distribution, or increase the authorized amount of any such other class or series, or (y) amend, alter or repeal any provision of this Certificate of Incorporation so as to adversely affect the relative rights and preferences of the Series B Preferred Stock, (ii) without the written consent of the holders of a majority of the outstanding shares of Series B-1 Preferred Stock or the vote of the holders of a majority of the outstanding shares of Series B-1 Preferred Stock at a meeting of the holders of Series B-1 Preferred Stock called for such purpose, the Corporation shall not amend, alter or repeal any provision of this Certificate of Incorporation so as to adversely affect the relative rights and preferences of the Series B-1 Preferred Stock in a different manner than such amendment, alteration or repeal affects the relative rights and preferences of the Series B-2 Preferred Stock or (iii) without the written consent of the holders of a majority of the outstanding shares of Series B-2 Preferred Stock or the vote of the holders of a majority of the outstanding shares of Series B-2 Preferred Stock at a meeting of the holders of Series B-2 Preferred Stock called for such purpose, the Corporation shall not amend, alter or repeal any provision of this Certificate of Incorporation so as to adversely affect the relative rights and preferences of the Series B-2 Preferred Stock in a different manner than such amendment, alteration or repeal affects the relative rights and preferences of the Series B-1 Preferred Stock. In any case in which the holders of Series A Preferred Stock shall be entitled to vote, each holder of Series A Preferred Stock shall be entitled to one vote for each share of Series A Preferred Stock (excluding Series A PIK Stock) held unless otherwise required by applicable law. In any case in which the holders of Series B Preferred Stock shall be entitled to vote, each holder of Series B Preferred Stock shall be entitled to one vote for each share of Series B Preferred Stock (excluding Series B-1 PIK Stock) held unless otherwise required by applicable law.
b. The holders of Class L Common Stock and Class A Common Stock shall have the general right to vote for all purposes, including the election of directors, as provided by
law; provided however, that holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation that relates solely to the terms of any class or series of Preferred Stock and does not adversely affect or alter or change the rights, preferences or privileges (including the relative rights, preferences or privileges) of the holders of Common Stock if the holder or holders of such affected series of Preferred Stock are entitled, either separately or together with one or more such series, to vote thereon pursuant to this Certificate of Incorporation or the DGCL. Except as the DGCL or this Certificate of Incorporation shall otherwise provide for separate class votes, on all matters on which the holders of Class L Common Stock and Class A Common stock shall have the right to vote, such holders shall vote together as a single class. Each holder of Class L Common Stock and Class A Common Stock shall be entitled to one vote for each share thereof held. Without the written consent of the holders of a majority of the outstanding shares of Class L Common Stock or the vote of the holders of a majority of the outstanding shares of Class L Common Stock at a meeting of the holders of Class L Common Stock called for such purpose, the Corporation shall not (i) create, authorize or issue any other class or series of stock entitled to a preference prior to Class L Common Stock upon any Distribution, or increase the authorized amount of any such other class or series or (ii) amend, alter or repeal any provision of the Corporation’s Certificate of Incorporation so as to adversely affect the relative rights and preferences of the Class L Common Stock.
6. Approval Rights. The Corporation shall not (i) enter into any agreement which would result in, or consummate any transaction resulting in, a Change of Control or an Initial Public Offering or (ii) amend this paragraph B.6 of Article V, without the prior written consent of each of (a) the holders of a majority of the then outstanding shares of Series A Preferred and Class L Common Stock, voting together as a single class, and (b) the holders of a majority of the then outstanding shares of Series B Preferred Stock, voting together as a single series.
7. Merger, etc. In connection with any merger, consolidation, or recapitalization in which holders of Series A Preferred Stock, Series B Preferred Stock, Class L Common Stock or Class A Common Stock generally receive, or are given the opportunity to receive, consideration for their shares, all payments shall be made to the holders of Series A Preferred Stock, Series B Preferred Stock, Class L Common Stock and Class A Common Stock in the manner and in the priority set forth in paragraphs B.2(a), B.2(b), B.2(c), B.2(d) and B.2(e) of Article V hereof.
8. Reissuance of Preferred Stock. Shares of Series A Preferred Stock and Series B Preferred Stock which have been issued and reacquired, purchased, redeemed or exchanged, in any manner, including shares cancelled and returned pursuant to paragraph B.4 of Article V, shall have the status of authorized and unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors or as part of any other series of Preferred Stock, all subject to the conditions or restrictions on issuance set forth in this Certificate of Incorporation or in any resolution or resolutions adopted by the Board of Directors providing for the issuance of any shares of Preferred Stock.
9. Business Day. If any payment shall be required by the terms hereof to be made on a day that is not a Business Day, such payment shall be made on the immediately succeeding Business Day.
10. Definitions.
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