Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment # 1 to Form S-1 233 1.44M
2: EX-1.1 Purchase Agreement Dated October 22, 1997 42 183K
3: EX-2.1 Share Transfer Agreement Dated April 15, 1996 12 51K
4: EX-2.2 Agreement for the Purchase of Film Assets 9 45K
5: EX-2.3 Agreement and Plan of Merger 40 198K
6: EX-2.4 Stock Purchase Agreement Dated as of June 11, 1997 20 90K
7: EX-2.5 Stock Purchase Agreement Dated as of June 11, 1997 17 80K
8: EX-2.6 Stock Purchase Agreement 17 80K
9: EX-2.7 Amended and Restated Agreement 16 68K
10: EX-3.1 Corrected and Restated Certificate 21 104K
11: EX-3.2 Amended and Restated Bylaws 22 95K
12: EX-4.1 Senior Notes Indenture 167 574K
13: EX-4.2 Senior Discount Notes Indenture 169 585K
14: EX-4.3 Senior Notes Registration Rights Agreement 37 135K
15: EX-4.4 Senior Discount Notes Registration Rights 38 142K
Agreement
16: EX-4.5 Senior Notes Liquidated Damages Agreement 5 28K
17: EX-4.6 Senior Discount Notes Liquidated Damages Agreement 5 28K
18: EX-10.1 Amended & Restated Strategic Stockholders 38 149K
Agreement
25: EX-10.12 Operating Agreement 34 146K
26: EX-10.14 Amendment No. 2 to Operating Agreement 10 45K
27: EX-10.17 Stock Ownership Agreement 11 46K
28: EX-10.18 Amendment No. 1 to Stock Ownership Agreement 5 26K
19: EX-10.2 Employment Assumption Agreement 2 22K
29: EX-10.20 Form of Fox Broadcasting Co. Station Affiliate 11 55K
Agreement
30: EX-10.21 Merchandising Rights Acquisition Agreement 12 55K
31: EX-10.22 Indemnification Agreement 6 30K
32: EX-10.23 Distribution Rights Acquisition Agreement 27 95K
33: EX-10.24 Administration Agreement 2 19K
34: EX-10.25 Registration Agreement 20 74K
35: EX-10.26 Amendment No. 1 to Registration Agreement 4 25K
36: EX-10.27 Contribution and Exchange Agreement 30 144K
37: EX-10.28 Guarantee Dated as of December 22, 1995 9 35K
38: EX-10.29 First Amendment to Lease 6 33K
20: EX-10.3 Employment Assumption Agreement 2 22K
39: EX-10.30 Guaranty of Lease 7 40K
40: EX-10.33 Funding Agreement 10 48K
41: EX-10.34 Guaranty Dated as of June 11, 1997 5 34K
42: EX-10.35 Distribution Agreement Dated August 21, 1992 20 68K
43: EX-10.36 Memorandum of Agreement 10 40K
44: EX-10.38 10960 Wilshire Boulevard Office Lease 93 410K
45: EX-10.39 Production Facility Agreement 14 57K
46: EX-10.40 Letter Agreement Dated as of January 1, 1995 3 26K
47: EX-10.41 Barter Syndication Agreement 2 19K
48: EX-10.42 Letter Agreement Dated as of September 26, 1996 22 84K
49: EX-10.43 First Amendment to the Contribution and Exchange 2 18K
Agreement
50: EX-10.44 Agreement Re Registration Rights 5 23K
51: EX-10.46 Agreement Re Transfer of LLC Interests 3 23K
52: EX-10.48 Subordinated Promissory Note 36 146K
21: EX-10.5 Form of Indemnification Agreement 10 54K
53: EX-10.54 Registration Rights Agreement 18 90K
22: EX-10.6 Employment Agreement 6 38K
23: EX-10.8 Employment Agreement 31 101K
24: EX-10.9 Employment Agreement 25 89K
54: EX-12.1 Ratio of Earnings to Fixed Charges 1 19K
55: EX-21.1 Subsidiaries of the Registrant 3 21K
56: EX-23.2 Consent of Independent Auditors 1 17K
57: EX-23.3 Consent of Independent Auditors 1 15K
58: EX-24.2 Power of Attorney 1 18K
59: EX-25.1 Statement of Eligibility - Bank of New York 10 46K
60: EX-27.1 Article 5 FDS 2 19K
EX-3.1 — Corrected and Restated Certificate
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EXHIBIT 3.1
CORRECTED
RESTATED CERTIFICATE OF INCORPORATION
OF FOX KIDS WORLDWIDE, INC.
Fox Kids Worldwide, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
1. A Restated Certificate of Incorporation was filed with the Secretary of
State of the State of Delaware on August 1, 1997, which contains an inaccurate
record of the corporate action taken therein, and said Certificate requires
correction as permitted by subsection (f) of Section 103 of the General
Corporation Law of the State of Delaware.
2. The inaccuracy in said Restated Certificate of Incorporation is that the
Restated Certificate of Incorporation inadvertently designated 10,000,000 shares
of the Company's 20,000,000 authorized shares of Common Stock as Class A Common
Stock, and 10,000,000 shares of the Company's authorized Common Stock as Class B
Common Stock, whereas the Board of Directors of the Company intended to increase
the authorized Common Stock to 32,000,000 shares and to allocate enough
authorized Common Stock as Class B Common Stock to effectuate the stock
issuances of Class B Common Stock made on August 1, 1997. Therefore, the
Restated Certificate of Incorporation should have reflected that the Corporation
increased the Company's authorized Common Stock to 32,000,000 shares, and of the
32,000,000 shares designated as Common Stock of the Company, 16,000,000 shares
shall be shares of Class A Common Stock and 16,000,000 shall be shares of Class
B Common Stock.
3. The Certificate is corrected to read in its entirety as follows:
A. The name of the corporation is Fox Kids Worldwide, Inc. Fox Kids
Worldwide, Inc. was originally incorporated under the same name and the original
Certificate of Incorporation of the corporation was filed with the Secretary of
State of the State of Delaware on August 26, 1996.
B. A Restated Certificate of Incorporation of this corporation was filed
with the Secretary of State of the State of Delaware on April 14, 1997, and a
Certificate of Amendment thereto was filed with the Secretary of State of the
State of Delaware on June 6, 1997.
C. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of this Corporation.
D. This Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the Delaware General Corporation Law.
E. The text of the Restated Certificate of Incorporation is hereby
restated and further amended to read in its entirety as follows:
FIRST: The name of the Company is FOX KIDS WORLDWIDE, INC.
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SECOND: The address of the registered office of the Company in the State
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of Delaware is 9 East Loockerman Street, in the City of Dover, County of Kent,
19901. The name of its registered agent at that address is National Corporate
Research, Ltd.
THIRD: The purpose of the Company is to engage in any lawful act or
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activity for which a corporation may be organized under the Delaware General
Corporation Law (the "DGCL").
FOURTH: A. Authorized Capital Stock. The Company is authorized to
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issue 52,000,000 shares of capital stock: 32,000,000 shares shall be shares of
Common Stock, par value $0.001 per share, of which 16,000,000 shares shall be
shares of Class A Common Stock, par value $0.001 per share ("Class A Common
Stock") and 16,000,000 shares shall be shares of Class B Common Stock, par value
$0.001 per share ("Class B Common Stock" and, together with the Class A Common
Stock, the "Common Stock"); 20,000,000 shares shall be shares of Preferred
Stock, par value $0.001 per share ("Preferred Stock"), of which 500,000 shares
shall be shares of Series A Preferred Stock, par value $0.001 per share ("Series
A Preferred Stock").
B. Common Stock. The powers, preferences and rights, and the
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qualifications, limitations and restrictions of each class of the Common Stock
are as follows:
(1) Voting. (a) At each annual or special meeting of stockholders,
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in the case of any written consent of stockholders in lieu of a meeting and for
all other purposes, each holder of record of shares of Class A Common Stock on
the relevant record date shall be entitled to one (1) vote for each share of
Class A Common Stock standing in such person's name on the stock transfer
records of the Company, and each holder of record of Class B Common Stock on the
relevant record date shall be entitled to ten (10) votes for each share of Class
B Common Stock standing in such person's name on the stock transfer records of
the Company. Except as otherwise required by law, and subject to the rights of
holders of any series of Preferred Stock of the Company that may be issued from
time to time, the holders of shares of Class A Common Stock and of shares of
Class B Common Stock shall vote as a single class on all matters with respect to
which a vote of the stockholders of the Company is required under applicable
law, this Restated Certificate of Incorporation or the Bylaws of the Company, or
on which a vote of stockholders is otherwise duly called for by the Company,
including, but not limited to, the election of directors, matters concerning the
sale, lease or exchange of all or substantially all of the property and assets
of the Company, mergers or consolidations with another entity or entities,
dissolution of the Company and amendments to this Restated Certificate of
Incorporation. Except as provided in this Article FOURTH or by applicable law,
whenever applicable law, this Restated Certificate of Incorporation or the
Bylaws of the Company provide for the necessity of an affirmative vote of the
stockholders entitled to cast at least a majority (or any other greater
percentage) of the votes which all stockholders are entitled to cast thereon, or
a "majority (or any other greater percentage) of the voting stock," or language
of similar effect, any and all such language shall mean that the holders of
shares of Class A Common Stock and the holders of shares of Class B Common Stock
shall vote as one class and that a majority (or any other greater percentage)
consists of a majority
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(or such other greater percentage) of the total number of votes entitled to be
cast in accordance with the provisions of this Article FOURTH.
(b) Neither the holders of shares of Class A Common Stock nor the
holders of shares of Class B Common Stock shall have cumulative voting rights.
(c) The Company may, as a condition to counting the votes cast by any
holder of shares of Class B Common Stock at any annual or special meeting of
stockholders, in the case of any written consent of stockholders in lieu of a
meeting, or for any other purpose, re quire the furnishing of such affidavits
or other proof as it may reasonably request to establish that the shares of
Class B Common Stock held by such holder have not, by virtue of the provisions
of subparagraphs (B)(6) or (7) of this Article FOURTH, been converted into
shares of Class A Common Stock.
(2) Dividends; Stock Splits. Subject to the rights of the holders of
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shares of any series of Preferred Stock, and subject to any other provisions of
this Restated Certificate of Incorporation, holders of shares of Class A Common
Stock and shares of Class B Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock or property of the Company as
may be declared thereon by the Board of Directors of the Company from time to
time out of assets or funds of the Company legally available therefor. If at any
time a dividend or other distribution in cash or other property (other than
dividends or other distributions payable in shares of Common Stock or options or
warrants to purchase shares of Common Stock or securities convertible into or
exchangeable for shares of Common Stock) is paid on the shares of Class A Common
Stock or the shares of Class B Common Stock, a like dividend or other
distribution in cash or other property also shall be paid on shares of Class B
Common Stock or shares of Class A Common Stock, as the case may be, in an equal
amount per share. If at any time a dividend or other distribution payable in
shares of Common Stock or options or warrants to purchase shares of Common Stock
or securities convertible into or exchangeable for shares of Common Stock is
paid on shares of Class A Common Stock or Class B Common Stock, a like dividend
or other distribution shall be paid also on shares of Class B Common Stock or
Class A Common Stock, as the case may be, in an equal amount per share; provided
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that, for this purpose, if shares of Class A Common Stock or other voting
securities, or options or warrants to purchase shares of Class A Common Stock or
other voting securities or securities convertible into or exchangeable for
shares of Class A Common Stock or other voting securities, are paid on shares of
Class A Common Stock and shares of Class B Common Stock or voting securities
identical to the other securities paid on the shares of Class A Common Stock
(except that the voting securities paid on the Class B Common Stock may have ten
(10) times the number of votes per share as the other voting securities to be
received by the holders of the Class A Common Stock) or options or warrants to
purchase shares of Class B Common Stock or such other voting securities or
securities convertible into or exchangeable for shares of Class B Common Stock
or such other voting securities, are paid on shares of Class B Common Stock in
an equal amount per share of Class A Common Stock and Class B Common Stock, such
dividend or other distribution shall be deemed to be a like dividend or other
distribution. In the case of any split, subdivision, combination or
reclassification of shares of Class A Common Stock or Class B Common Stock, the
shares of Class B Common Stock or Class A Common Stock, as the case may be, also
shall be split, subdivided,
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combined or reclassified so that the number of shares of Class A Common Stock
and Class B Common Stock outstanding immediately following such split,
subdivision, combination or reclassification shall bear the same relationship to
each other as did the number of shares of Class A Common Stock and Class B
Common Stock outstanding immediately prior to such split, subdivision,
combination or reclassification.
(3) Liquidation, Dissolution, etc. In the event of any liquidation,
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dissolution or winding up (either voluntary or involuntary) of the Company, the
holders of shares of Class A Common Stock and the holders of shares of Class B
Common Stock shall be entitled to receive the assets and funds of the Company
available for distribution, after payments to creditors and to the holders of
any Preferred Stock of the Company that may at the time be outstanding, in
proportion to the number of shares held by them, respectively, without regard to
class.
(4) Mergers, etc. In the event of any corporate merger, consolidation,
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purchase or acquisition of property or stock, or other reorganization in which
any consideration is to be received by the holders of shares of Class A Common
Stock or the holders of shares of Class B Common Stock, the holders of shares of
Class A Common Stock and the holders of shares of Class B Common Stock shall
receive the same consideration on a per share basis; provided that, if such
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consideration shall consist in any part of voting securities (or of options or
warrants to purchase, or of securities convertible into or exchangeable for,
voting securities), the holders of shares of Class B Common Stock may receive,
on a per share basis, voting securities with ten (10) times the number of votes
per share as those voting securities to be received by the holders of shares of
Class A Common Stock (or options or warrants to purchase, or securities
convertible into or exchangeable for, voting securities with ten (10) times the
number of votes per share as those voting securities issuable upon exercise of
the options or warrants to be received by the holders of the shares of Class A
Common Stock, or into which the convertible or exchangeable securities to be
received by the holders of the shares of Class A Common Stock may be converted
or exchanged).
(5) No Preemptive or Subscription Right. No holder of shares of Class
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A Common Stock or Class B Common Stock shall be entitled to preemptive or
subscription rights.
(6) Transfer Restriction; Change of Control of Holders. Shares of
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Class A Common Stock are freely transferable, however, (a) except as provided in
subparagraph (B)(6)(d) of this Article FOURTH, no person holding record
ownership of shares of Class B Common Stock (hereinafter called a "Class B
Holder") may transfer, and the Company shall not register the transfer of, such
shares of Class B Common Stock, except to a Permitted Transferee of such Class B
Holder. Any purported transfer by a Class B Holder, other than to a Permitted
Transferee, shall be null and void and of no effect and such purported transfer
by the Class B Holder will result in the immediate and automatic conversion of
such Holder's shares of Class B Common Stock into shares of Class A Common
Stock. For the purposes hereof, a "Permitted Transferee" shall mean:
(i) any other Class B Stockholder, any of Haim Saban's family
members, any trust established solely for the benefit of one or more of Haim
Saban's family members or any legal entity in which Haim Saban or such persons
are the sole beneficial owners;
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(ii) a direct or indirect wholly-owned subsidiary of such Class
B Stockholder (or with respect to a Class B Stockholder which is a natural
person, a corporation or other person wholly-owned by the Class B Stockholder);
(iii) in the case of a Class B Holder which is the estate of a
deceased Class B Holder, or which is the estate of a bankrupt or insolvent Class
B Holder, such Class B Holder's "Permitted Transferee" means a Permitted
Transferee of such deceased, bankrupt or insolvent Class B Holder; or
(iv) in the case of any Class B Holder, such Class B Holder's
"Permitted Transferee" means, without limitation of the foregoing, any direct or
indirect Permitted Transferee of a Permitted Transferee of such Class B Holder.
(b) Notwithstanding anything to the contrary set forth
herein, but subject to the provisions of subparagraph (B)(6)(d) of this Article
FOURTH, in the event of any direct or indirect transfer of beneficial ownership
of any shares of Class B Common Stock which, had such transfer also been a
transfer of record ownership of such shares of Class B Common Stock, would not
have been to a Permitted Transferee, each share of Class B Common Stock
transferred shall be deemed, without further act of the part of the holder
thereof or the Company, to be converted into one share of Class A Common Stock,
and stock certificates formerly representing each share of Class B Common Stock
shall thereupon and thereafter be deemed to represent such number of shares of
Class A Common Stock as equals the number of shares of Class A Common Stock into
which such shares of Class B Common Stock could be converted pursuant to the
terms hereof.
(c) Notwithstanding anything to the contrary set forth
herein, any event which would result in the automatic conversion of shares of
Class B Common Stock into shares of Class A Common Stock shall not result in
such conversion if, after such event, the record holder of such shares of Class
B Common Stock is a corporation, limited liability company or partnership as to
which, with respect to the shares of Class B Common Stock held by such
corporation, limited liability company or partnership, any Permitted Transferee
of the Class B Holder prior to such event has, directly or indirectly, both
investment power (which includes the power to dispose, or direct the disposition
of such shares of Class B Common Stock) and voting power (which includes the
power to vote, or direct the voting of, such shares of Class B Common Stock);
provided that no transaction or event intended to avoid the automatic conversion
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provisions of this subparagraph (B)(6) of Article FOURTH shall in any event be
entitled to the benefit of this subparagraph (B)(6)(c) of Article FOURTH.
(d) Notwithstanding anything to the contrary set forth
herein, any Class B Holder may pledge such Class B Holder's shares of Class B
Common Stock to a pledgee pursuant to a bona fide pledge of such shares as
collateral security for any indebtedness or other obligation of any person;
provided that, even if such shares are registered in the name of the pledgee or
its nominee (which registration is hereby expressly permitted and shall not be
considered a transfer hereunder), such shares shall remain subject to the
provisions of this subparagraph (B)(6) of Article FOURTH. In the event that such
pledged shares of Class B Common Stock (the "Pledged Stock") are foreclosed
upon, each share of such Pledged Stock shall
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be deemed, without further act on the part of the holder thereof or the Company,
to be converted into one share of Class A Common Stock, and stock certificates
formerly representing one share of Class B Common Stock shall thereupon and
thereafter be deemed to represent such number of shares of Class A Common Stock
as equals the number of shares of Class A Common Stock into which such shares of
Class B Common Stock could be converted pursuant to the terms hereof upon the
earlier of (i) if the pledgor is contesting the foreclosure on such shares of
Pledged Stock, 30 days after the date on which the foreclosure on such Pledged
Stock becomes final and non-appealable or (ii) if the pledgor is not contesting
the foreclosure on such shares of Pledged Stock, 30 days after the date on which
such Pledged Stock is foreclosed upon; provided that the Pledged Stock shall not
be automatically converted as provided in this subparagraph (B)(6)(d) of Article
FOURTH hereof as a result of such foreclosure if, prior to expiration of either
such 30-day period, the Pledged Stock shall be transferred by the pledgee or the
purchaser in such foreclosure to a Class B Holder or one or more Permitted
Transferees of a Class B Holder, or such foreclosure is by a Secured Party (as
such term is defined in the Credit Agreement referred to below) or any successor
in such position, in connection with the financing for the Company and its
subsidiaries provided by Citicorp USA, Inc. (the "Administrative Agent") and
other financial institutions pursuant to a certain Credit Agreement (the "Credit
Agreement") among the Company, FCN Holding, Inc., Fox Kids Merger Corporation,
Saban Entertainment, Inc., the banks, financial institutions and other
institutional lenders from time to time party thereto, Citicorp Securities,
Inc., as arranger, and the Administrative Agent, and any related document, and
any amendments or supplements to or refinancing of such financing.
(e) Notwithstanding anything to the contrary herein, the
Company shall not register the transfer of any shares of Class B Common Stock,
unless the transferee and the transferor of such Class B Common Stock have
furnished such affidavits and other proof as the Company may reasonably request
to establish that such proposed transferee is a Permitted Transferee. In
addition, upon any purported transfer of shares of Class B Common Stock not
permitted hereunder, each share of Class B Common Stock purported to be so
transferred shall be deemed, without further act on the part of the holder
thereof or the Company, to be converted into one share of Class A Common Stock,
and stock certificates formerly representing one share of Class B Common Stock
shall thereupon and thereafter be deemed to represent such number of shares of
Class A Common Stock as equals the number of shares of Class A Common Stock into
which such shares of Class B Common Stock could be converted pursuant to the
terms hereof, and the Company shall register such shares of Class A Common Stock
in the name of the person to whom such shares of Class B Common Stock were
purported to be transferred.
(f) The Company shall include on the certificates for
shares of Class B Common Stock a legend referring to the restrictions on
transfer and registration of transfer imposed by this subparagraph (B)(6) of
Article FOURTH.
(7) Voluntary Conversion. Each share of Class B Common Stock shall be
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convertible, at the option of its record holder, at any time into one validly
issued, fully paid and non-assessable share of Class A Common Stock. At the
time of a voluntary conversion, the record holder of shares of Class B Common
Stock shall deliver to the principal office of the Company or any transfer agent
for shares of the Class A Common Stock (i) the certificate or certificates
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representing the shares of Class B Common Stock to be converted, duly endorsed
in blank or accompanied by proper instruments of transfer and (ii) written
notice to the Company specifying the number of shares of Class B Common Stock to
be converted into shares of Class A Common Stock and stating the name or names
(with addresses) and denominations in which the certificate or certificates
representing the shares of Class A Common Stock issuable upon such conversion
are to be issued and including instructions for the delivery thereof.
Conversion shall be deemed to have been effected at the time when delivery is
made to the Company of both such written notice and the certificate or
certificates representing the shares of Class B Common Stock to be converted or
such later time as may be specified in such written notice, and as of such time
each person named in such written notice as the person to whom a certificate
representing shares of Class A Common Stock is to be issued shall be deemed to
be the holder of record of the number of shares of Class A Common Stock to be
evidenced by that certificate. Delivery of such certificates and such written
notice shall obligate the Company to issue such shares of Class A Common Stock,
and thereupon the Company or its transfer agent shall promptly issue and deliver
at such stated address to such record holder of shares of Class A Common Stock a
certificate or certificates representing the number of shares of Class A Common
Stock to which such record holder is entitled by reason of such conversion, and
shall cause such shares of Class A Common Stock to be registered in the name of
such record holder.
(8) Unconverted Shares; Notice Required. In the event of the
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conversion of less than all of the shares of Class B Common Stock evidenced by a
certificate surrendered to the Company in accordance with the procedures of
subparagraphs (B)(6), (7) or (8) of this Article FOURTH, the Company shall
execute and deliver to or upon the written order of the holder of such
unconverted shares, without charge to such holder, a new certificate evidencing
the number of shares of Class B Common Stock not converted.
(9) Reservation. The Company hereby reserves and shall at all times
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reserve and keep available, out of its authorized and unissued shares of Class A
Common Stock, for the purposes of effecting conversions, such number of duly
authorized shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Class B Common
Stock. All of the shares of Class A Common Stock so issuable shall, when so
issued, be duly and validly issued, fully paid and non-assessable. The Company
shall take all action as may be necessary to ensure that all such shares of
Class A Common Stock may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities exchange upon
which the shares of Class A Common Stock are or may be listed, or of any inter-
dealer quotation system of a registered national securities association upon
which the shares of Class A Common Stock are or may be listed or authorized for
quotation.
(10) Power to Sell and Purchase Shares. Subject to applicable law, the
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Company shall have the power and authority to issue and sell all or any part of
any shares of any class of capital stock herein or hereafter authorized to such
persons, and for such consideration, as the Board of Directors shall from time
to time, in its discretion, determine, whether or not greater consideration
could be received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law. The Company shall have the power to
purchase any shares of any class of capital stock herein or hereafter authorized
from such persons, and for such
7
consideration, as the Board of Directors shall from time to time, in its
discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise
permitted by law.
(11) Rights Otherwise Identical. Except as expressly set forth herein,
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the rights of the holders of Class A Common Stock and the rights of the holders
of Class B Common Stock shall be in all respects identical.
(12) For purposes of this Article FOURTH:
(a) The relationship of any person that is derived by or through
legal adoption shall be considered a natural one.
(b) Each joint owner of shares of Class B Common Stock shall be
considered a "Class B Holder" of such shares.
(c) A minor for whom shares of Class B Common Stock are held
pursuant to the Uniform Gifts to Minors Act or similar law shall be considered a
"Class B Holder" of such shares.
(d) The term "beneficial ownership" (including, with a
correlative meaning, the term "beneficially own"), shall have the meaning
assigned such term in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, as amended, as in effect on April 1, 1997, except that a person shall be
deemed to have "beneficial ownership" of all shares that such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time.
(e) Unless otherwise specified, the term "person" means both
natural persons and legal entities.
(f) The term "transfer" means any direct or indirect transfer
(including by sale, assignment, gift, bequest, appointment or otherwise), and
shall also include, with respect to any Class B Holder, any direct or indirect
change in control of such person.
(g) The term "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control with"), as
applied to any person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
person or entity, whether through the ownership of voting securities, by
contract or otherwise.
C. Preferred Stock.
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The Board of Directors is expressly authorized to provide for the issuance
of all or any shares of the Preferred Stock in one or more classes or series,
and to fix for each such class or series such voting powers, full or limited, or
no voting powers, and such designations, preferences
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and relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the authorization of such class or series, including, without
limitation, the authority to provide that any such class or series may be (i)
subject to redemption at such time or times and at such price or prices, (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series, (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Company, and/or (iv) convertible into, or
exchangeable for, shares of any other class or classes of capital stock, or of
any other series of the same or any other class or classes of stock, of the
Company at such price or prices or at such rates of exchange and with such
adjustments, all as may be stated in such resolution or resolutions.
(1) Terms Applicable to the Series A Preferred Stock. The powers, preferences
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and relative, participating, optional and other special rights of the
Series A Preferred Stock and the qualifications, limitations and
restrictions thereof are as follows:
(a) Fractional Shares. The Series A Preferred Stock is issuable
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solely in whole shares that shall entitle the holder thereof to exercise the
voting rights, to participate in the distributions and to have the benefit of
all other rights of holders of the Series A Preferred Stock as set forth herein.
(b) Definitions. As used herein, the following terms shall have the
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respective meanings given thereto in the subparagraphs of this subparagraph (1)
indicated below:
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Defined Term Section
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"Actual ADS Price".............. (h)
"ADSs".......................... (h)
"Applicable Discount"........... (h)
"Business Day".................. (c)(ii)
"Discounted ADS Price".......... (h)
"Dividend Payment Date"......... (c)(ii)
"Event of Default".............. (h)
"FKW Affiliate"................. (g)(iii)
"Funding Agreement"............. (g)(ii)
"Junior Stock".................. (d)
"Liberty"....................... (g)(i)
"Liberty Affiliate"............. (g)(i)
"Liquidation"................... (d)
"Liquidation Price"............. (d)
"Missed Redemption Date"........ (h)(i)
"NPAL".......................... (g)(ii)
"NPAL Preferred Stock".......... (h)(iii)
"NYSE".......................... (h)
"Taxable Transaction............ (g)(i)
"TNCL".......................... (g)(ii)
"TNCL Preferred Stock".......... (h)
(c) Dividends Rights.
----------------
(i) Holders of the outstanding shares of Series A Preferred Stock
shall be entitled to receive, if, as and when declared by the Board of
Directors, cumulative dividends as set forth in this Restated Certificate of
Incorporation. Dividends shall be payable in cash on the shares of Series A
Preferred Stock out of funds legally available therefor at a rate per annum
equal to 9.0% (subject to adjustment as provided below) of the Liquidation
Price, payable quarterly in arrears. If any quarterly dividend is not declared
and paid in full on a Dividend Payment Date (i) such accrued and unpaid
dividends will be added cumulatively to the Liquidation Price and remain a part
thereof until such accrued dividends (together with all other dividends accrued
on such cumulated dividends) are declared and paid in full and, (ii) the
dividend rate will increase to a rate per annum equal to 11.5% of the
Liquidation Price and continue at such rate until all dividends that have been
added cumulatively to and remain part of the Liquidation Price (together with
all other dividends accrued on such cumulated dividends) are declared and paid
in full. Notwithstanding the foregoing, if a full quarterly dividend payment
has not been declared and paid on a Dividend Payment Date and immediately prior
to such date the dividend rate per annum is equal to 9.0% of the Liquidation
Price (i.e., (i) no Events of Default were continuing as of such time and (ii)
no dividends had been added cumulatively to and remain part of the
10
Liquidation Price), then if such quarterly dividend, and all dividends accrued
thereon at the rate per annum of 9.0%, are declared and paid in full by no later
than the tenth day following the original Dividend Payment Date (or, if such
tenth day is not a Business Day, the immediately succeeding Business Day), the
dividend rate shall not, solely as a result of such failure to pay dividends on
the original Dividend Payment Date, increase to a rate per annum equal to 11.5%
of the Liquidation Price; provided, however, that if such unpaid dividend and
the dividends accrued thereon are not declared and paid as aforesaid in full by
such tenth day (or, if such tenth day is not a Business Day, the immediately
succeeding Business Day), then such accrued and unpaid dividends shall be added
cumulatively to the Liquidation Price and the dividend rate shall increase to a
rate of 11.5% per annum of the Liquidation Price, in each case effective as of
the original Dividend Payment Date, and such increased dividend rate shall
continue in effect until all dividends that have been added to and remain a part
of the Liquidation Price (and all other dividends accrued on such cumulative
dividends) have been paid in full and no Events of Default shall have occurred
and be continuing.
(ii) Accrued dividends on the Series A Preferred Stock shall be
payable quarterly in arrears on the last day of each March, June, September and
December, or the immediately succeeding Business Day if such last day is not a
Business Day (each such payment date being hereinafter referred to as a
"Dividend Payment Date"), commencing on September 30, 1997. Each such dividend
shall be paid to the holders of record of shares of Series A Preferred Stock as
they appear on the stock register of the Company on the record date for payment
of such dividend, which record date shall be a date, not more than 45 days or
less than 15 days preceding the payment date for such dividend, as shall be
fixed by the Board of Directors. Dividends on the shares of Series A Preferred
Stock shall accrue as set forth herein, commencing on the date of original
issuance of the Series A Preferred Stock, on a daily basis whether or not there
are funds legally available for payment of such dividends and whether or not
such dividends are declared. Dividends shall be computed on the basis of a 365-
day or 366-day year, as the case may be. "Business Day" shall mean any day other
than a Saturday, Sunday, or day on which banking institutions in the State of
New York are authorized or obligated by law or executive order to close.
(iii) When dividends are not paid in full upon the shares of the
Series A Preferred Stock, all dividends declared upon shares of the Series A
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share on the shares of the Series A Preferred Stock shall be the
same for each share of Series A Preferred Stock.
(iv) Accrued and unpaid dividends for any past quarterly dividend
period or periods that have been added to the Liquidation Price, together with
all accrued and unpaid dividends thereon, may be declared and paid at any time,
without reference to any Dividend Payment Date, to holders of record on a date
not more than 45 days or less than 15 days preceding the payment date thereof as
shall be fixed by the Board of Directors. Any such accrued and unpaid dividends
that have been added to the Liquidation Price but are subsequently paid shall be
subtracted from the Liquidation Price upon the date of such payment.
11
(d) Liquidation Preference. Upon any liquidation, dissolution or
----------------------
winding up of the Company, whether voluntary or involuntary (a "Liquidation"),
the holders of shares of Series A Preferred Stock shall be entitled to receive
from assets available for distribution to stockholders, before any payment or
distribution is made to holders of any class of capital stock of the Company
ranking junior to the Series A Preferred Stock as to dividend rights, rights of
redemption or rights on Liquidation (the "Junior Stock"), an amount in cash per
share equal to the Liquidation Price of a share of Series A Preferred Stock as
of the date of payment. As used in this Restated Certificate of Incorporation,
the "Liquidation Price" of any share of Series A Preferred Stock as of any date
will be the sum of (x) $1,000, plus (y) an amount equal to all unpaid dividends
on such share that have accrued and been added to the Liquidation Price and
remain a part thereof as of such date pursuant to subparagraph (c)(i) above,
plus (z) for purposes of determining the amount payable upon Liquidation or on
any redemption of such share (but not for purposes of calculating dividends), an
amount equal to all unpaid dividends accrued on the sum of the amounts specified
in clauses (x) and (y) that have not been added to the Liquidation Price during
the period from the immediately preceding Dividend Payment Date (or, if there
has been no Dividend Payment Date, from the date of original issuance of the
Series A Preferred Stock) to and including the date in question. If, upon
Liquidation, the amounts payable with respect to the liquidation preference of
the Series A Preferred Stock are not paid in full, the holders of Series A
Preferred Stock will share pro rata in the amounts payable and other property
distributable with respect to such Liquidation so that the per share amounts to
which holders of Series A Preferred Stock are entitled will in all cases be the
same. After payment in full of the Liquidation Price per share of Series A
Preferred Stock, the holders of such shares in their capacity as such shall not
be entitled to any further right or claim to any remaining assets of the
Company. The Company shall mail written notice of any Liquidation to each
record holder of Series A Preferred Stock not less than 30 days prior to the
date on which such Liquidation shall occur or become effective; provided,
however, that in the case of any involuntary liquidation such notice shall be
given as soon as practicable. Neither a consolidation or merger of the Company
with or into another corporation, nor a merger of any other corporation with or
into the Company, nor the sale, transfer or lease of all or any part of the
Company's property, assets or business (other than in connection with a winding
up of its business) will be considered a Liquidation for purposes of this
Restated Certificate of Incorporation.
(e) Redemption.
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(i) On August 1, 2027, the Company shall redeem, out of
funds legally available therefor, all then outstanding shares of Series A
Preferred Stock, if any, at a redemption price equal to the Liquidation Price
thereof as of the date of redemption, payable in cash.
(ii) Each holder of Series A Preferred Stock shall have the
right, at such holder's option and exercisable during the 30-day period
commencing upon August 2 of the years 2017 and 2022, to require redemption by
the Company of such holder's shares of Series A Preferred Stock, in whole or in
part, at a redemption price (subject to adjustment as provided in subparagraph
(h) below) equal to the Liquidation Price per share thereof as of the date of
redemption of such shares, payable in cash. Holders may exercise such right by
giving written notice of such exercise during such 30-day period, stating the
number of shares of Series A Preferred Stock to be redeemed, to the Company at
its principal office at 10960 Wilshire Boulevard, Los Angeles, CA,
12
90024, Attention: President, with a copy to c/o News America Publishing
Incorporated, 1211 Avenue of the Americas, New York, New York 10036, Attention:
Arthur M. Siskind, Esq., Senior Executive Vice President and Group General
Counsel of The News Corporation Limited, or such other address as the Company
shall designate by written notice to the holders of the Series A Preferred
Stock. The Company shall redeem, out of funds legally available therefor, the
shares of Series A Preferred Stock so requested to be redeemed within twenty
(20) Business Days following the expiration of such 30-day period. If the funds
of the Company legally available for redemption of shares of Series A Preferred
Stock are insufficient to redeem the total number of shares required to be
redeemed pursuant to this subparagraph (e)(ii), those funds which are legally
available for redemption of such shares of Series A Preferred Stock will be used
to redeem, at the Liquidation Price per share, the maximum possible number of
such shares of Series A Preferred Stock ratably among the holders who have given
timely notice of exercise of their right to have shares of Series A Preferred
Stock redeemed under this subparagraph (e)(ii). At any time thereafter when
additional funds of the Company are legally available and not so restricted for
such purpose, such funds will immediately be used to redeem the shares of Series
A Preferred Stock the Company failed to redeem, at the Liquidation Price per
share as of the date of actual redemption, until the balance of such shares of
Series A Preferred Stock are redeemed.
(iii) At any time after August 1, 2007, the Company, by resolution of
the Board of Directors, may redeem all, but not less than all, of the shares of
Series A Preferred Stock at a redemption price (subject to adjustment as
provided in subparagraph (h) below) equal to the Liquidation Price thereof as of
the date of redemption, payable in cash.
(iv) Written notice of any redemption pursuant to subparagraph (e)(i)
or (e)(iii) shall be given by the Company to each record holder of the shares of
the Series A Preferred Stock to be redeemed, not more than 60 nor less than 30
days prior to such redemption date, to the respective addresses of such holders
as the same shall appear on the stock transfer records of the Company. Each
notice shall state: (i) the redemption date; (ii) the redemption price; (iii)
the place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and (iv) that dividends on the shares to be
redeemed will cease to accrue on such redemption date unless the applicable
redemption price is not paid in full on such date. Failure to give such notice,
or any defect in such notice, to any holder of shares of Series A Preferred
Stock shall not affect the validity of the proceedings for the redemption of any
shares of Series A Preferred Stock, except as to the holders to whom the Company
has failed to give said notice as set forth above.
(v) If the notice of redemption with respect to shares of Series A
Preferred Stock to be redeemed pursuant to this subparagraph (e) shall have been
timely given as provided above in subparagraph (e)(ii) or (e)(iv), and if on or
before the applicable date of redemption the Company shall have deposited with a
redemption agent for the Series A Preferred Stock (or, if there is no redemption
agent, shall have set apart so as to be available for such purpose and only such
purpose) cash sufficient to pay in full the aggregate redemption price for such
shares of Series A Preferred Stock on such date of redemption, then effective as
of the close of business on such redemption, such shares of Series A Preferred
Stock shall no longer be deemed outstanding notwithstanding that any certificate
therefor shall not have been surrendered for cancellation,
13
dividends with respect to the shares so called for redemption shall cease to
accrue on such date of redemption and all rights with respect to the shares so
called for redemption shall forthwith after such date cease and terminate,
except the right of such holders, upon the surrender of certificates evidencing
the shares of Series A Preferred Stock so redeemed, to receive the cash in
payment of the redemption price therefor.
(f) Ranking. The Series A Preferred Stock will rank senior as to
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dividend rights, rights of redemption and rights on Liquidation to all other
classes and series of capital stock of the Company authorized on the date of
issuance of the Series A Preferred Stock. So long as any shares of Series A
Preferred Stock are outstanding, the Company will not issue any shares of any
class or series of capital stock ranking senior to or pari passu with the Series
A Preferred Stock as to dividend rights, rights of redemption or rights on
Liquidation.
(g) Certain Covenants.
-----------------
(i) Prior to the tenth anniversary of the date of original
issuance of the Series A Preferred Stock, the Company will not, without the
prior written approval of Liberty Media Corporation, a Delaware corporation (or
any successor thereto by merger or by acquisition of all or substantially all of
its assets) ("Liberty"), consummate any transaction (including, but not limited
to, a merger), transfer any stock, securities or other assets or consummate any
other action which, as determined under Federal income tax rules, results in (x)
the transaction by which Liberty obtained the Series A Preferred Stock becoming
taxable, in whole or in part, or (y) a taxable exchange, conversion or
disposition (except any voluntary disposition by Liberty or a Liberty Affiliate
(as defined below)) of any shares of Series A Preferred Stock by Liberty or a
Liberty Affiliate that owns of record Series A Preferred Stock (a "Taxable
Transaction"). As used herein, a "Liberty Affiliate" shall mean any entity
which, directly or indirectly, controls, is under common control with, or is
controlled by Liberty. From and after such tenth anniversary, the Company may
effect a Taxable Transaction without the prior written approval of Liberty,
provided that prior to such Taxable Transaction being effected the Company shall
have redeemed all of the shares of Series A Preferred Stock then owned of record
by Liberty or any Liberty Affiliate at the Liquidation Price per share (as
adjusted pursuant to subparagraph (h), if applicable) as of the date of
redemption, payable in cash. This subparagraph (g)(i) shall not apply to, and is
not intended to benefit, any person other than Liberty and any Liberty
Affiliates that own of record Series A Preferred Stock, and shall not extend to
any transferee of Liberty or any Liberty Affiliate (except for a transferee
which is Liberty or a Liberty Affiliate).
(ii) For so long as any shares of Series A Preferred Stock remain
outstanding, the Funding Agreement, dated as of June 11, 1997 (the "Funding
Agreement"), among the Company, The News Corporation Limited, a corporation
organized and existing under the laws of South Australia, Australia ("TNCL"),
and News Publishing Australia Limited, a Delaware corporation ("NPAL"), shall
continue in full force and effect and the Company shall not (i) fail to enforce
all of its rights under the Funding Agreement, (ii) waive, amend or modify or
agree to waive, amend or modify any provisions of the Funding Agreement, (iii)
assign or delegate, or permit TNCL or NPAL to assign or delegate, any of its
obligations or duties under the Funding Agreement to any other person or entity
or (iv) assign or agree to assign, or permit NPAL to assign or agree to assign,
14
any of its rights under the Funding Agreement to any other person or entity, in
each case without the prior approval of the holders of not less 66 2/3% of the
issued and outstanding shares of Series A Preferred Stock.
(iii) For so long as any shares of Series A Preferred Stock are
outstanding, no dividend, whether in cash or property (other than a stock
dividend paid in shares of the same class or series of Junior Stock), shall be
paid or declared, nor shall any other distribution be made, on any Junior Stock,
nor shall any shares of Junior Stock be purchased, redeemed, or otherwise
acquired for value by the Company or any person or entity which, directly or
indirectly, is controlled by the Company (an "FKW Affiliate"), unless (i) the
holders of the Series A Preferred Stock shall have been paid all accrued
dividends for all quarterly dividend periods ending on or before the date on
which any such dividend on Junior Stock, or such purchase, redemption or other
acquisition of such Junior Stock, is to occur, (ii) no dividends shall have been
cumulatively added to the Liquidation Price or, if so added, such dividends,
together with all dividends accrued thereon, shall have been declared and paid
and (iii) no Events of Default shall have occurred and be continuing.
(iv) For so long as Liberty or a Liberty Affiliate is an owner of
record of shares of Series A Preferred Stock, the Company shall furnish to
Liberty, on each December 31, a certificate of a responsible officer of the
Company stating that during the preceding 12-month period ending on the
immediately preceding June 30 (or if no such certificate has previously been
delivered, during the period from the original issuance of the Series A
Preferred Stock to June 30, 1998), the Company has observed all of the covenants
in this subparagraph (g), and that such officer has obtained no knowledge of any
Event of Default except as specified in such certificate. The Company shall,
upon becoming aware of the occurrence of any Event of Default, promptly notify
the holders of the Series A Preferred Stock of such Event of Default and of
their rights under subparagraph (h). The Company shall also provide to Liberty
any and all compliance certificates that the Company receives from TNCL and NPAL
under the terms of the Funding Agreement, promptly after the Company receives
such certificates.
(h) Events of Default and Remedies. In addition to any other remedies
------------------------------
the holders of Series A Preferred Stock may have, if any of the following events
shall occur:
(i) the Company shall fail to redeem any shares of Series A
Preferred Stock required to be so redeemed under subparagraph (e)(i), (ii) or
(iii) at the applicable redemption price (whether or not there are funds legally
available therefor) and on the date fixed, or by the last day of the period
within which the Company is to required to fix a date, for redemption (a "Missed
Redemption Date"); or
(ii) the Company shall be in breach of any of the covenants set
forth under subparagraph (g)(i), (ii), (iii) or (iv) hereof and such breach
shall not have been cured within thirty (30) days of the Company's first having
actual knowledge of such breach (including by notice from a holder of Series A
Preferred Stock); or
15
(iii) if any shares of Preferred Stock, par value $.001 per
share, of NPAL ("NPAL Preferred Stock") are issued and outstanding, an Event of
Default (as such term is defined in Article FOURTH of the Certificate of
Incorporation of NPAL) under the terms of the NPAL Preferred Stock shall have
occurred and be continuing;
then, upon the occurrence of any of the events set forth in clauses
(i), (ii) or (iii) above (each, an "Event of Default") and at all times
thereafter until such time as such Event of Default has been cured in full and
no other Event of Default remains uncured, (i) the dividend rate applicable to
the Series A Preferred Stock shall increase to a rate per annum equal to 11.5%
of the Liquidation Price (if not already at such dividend rate pursuant to
subparagraph (c) hereof) effective upon (A) the Missed Redemption Date, (B) the
expiration of the 30-day period described in clause (ii) above if the breached
covenant(s) specified in clause (ii) have not then been cured within such period
or (C) the occurrence of an Event of Default under the terms of the NPAL
Preferred Stock, as the case may be, (ii) in the case of an Event of Default
referred to in clauses (ii) or (iii) above, each holder of Series A Preferred
Stock shall have the right, at such holder's option, to require the redemption
by the Company, in whole or in part, of such holder's shares of Series A
Preferred Stock (in accordance with the procedures set forth in subparagraph
(e)(ii) hereof), (iii) if a holder exercises its right of redemption pursuant to
the immediately preceding clause (ii) or in the case of an Event of Default
under clause (i) above where the Company shall have failed to cure such Event of
Default within ten (10) days after the original date fixed for redemption (or
the last day, if any, of the period within which the Company is required to fix
a date for redemption), the redemption price for the shares of Series A
Preferred Stock to be redeemed shall be (or shall be increased to) the amount
determined by dividing the Liquidation Price as of the date of such redemption
by the Discounted ADS Price and multiplying the resulting quotient by the Actual
ADS Price and (iv) the holders of a majority of the outstanding shares of Series
A Preferred Stock shall have the right to cause the Company to enforce the
Company's rights under the Funding Agreement and to direct the time, method and
place of conducting any remedy available to the Company thereunder. In the event
the Company breaches any of the provisions of subparagraph (g)(iii), or if any
of the provisions of Section 7(c) of Article FOURTH of the Certificate of
Incorporation of NPAL or Section 4 of the Funding Agreement shall be breached,
such breach shall be deemed cured at such time as all accrued and unpaid
dividends, if any, on the Series A Preferred Stock that has been cumulatively
added to the Liquidation Price, together with all other dividends accrued and
unpaid on the Series A Preferred Stock, shall have been declared and paid in
full to the holders of the Series A Preferred Stock. For greater certainty, if
a holder of Series A Preferred Stock exercises its rights of redemption pursuant
to clause (ii) above, then the redemption price, as adjusted pursuant to this
subparagraph (h), shall be payable by the Company irrespective of any subsequent
cure of the Event of Default(s) that resulted in such right of redemption under
clause (ii) above.
As used above, "Actual ADS Price" means the average for the ten (10)
trading days preceding the date of redemption of shares of Series A Preferred
Stock of (i) the closing sale price, regular way, of the American Depositary
Receipts representing Preferred Limited Voting Ordinary Shares, par value A$.50
per share (the "TNCL Preferred Stock"), of TNCL ("ADSs") on the New York Stock
Exchange, Inc. (the "NYSE") or on the principal exchange on which such ADSs are
traded, (ii) if the primary trading market for the ADSs is not the NYSE or
another exchange, the last sale price of the ADSs on the Nasdaq National Market
or (iii) if the ADSs are not traded on the
16
NYSE, another exchange or the Nasdaq National Market, then the average of the
bid and asked prices for the ADSs as furnished by any NYSE member firm selected
from time to time by the Board of Directors for such purpose. "Discounted ADS
Price" means the product of the Applicable Discount times the lower of (x) the
Actual ADS Price and (y) US$14.537 (the average of the closing prices on the
NYSE of the ADS's for the ten (10) trading days preceding June 11, 1997), in
each case appropriately adjusted to take into account any stock dividend on the
ADSs, or any subdivision, split, combination or reclassification of the ADSs or
the TNCL Preferred Stock or any change to the number of shares of TNCL Preferred
Stock underlying each ADS since June 11, 1997. If the TNCL Preferred Stock is
not outstanding during the period required for determining the "Actual ADS
Price," then "ADS" shall refer to the ordinary or preferred shares of TNCL with
the greatest liquidity in the public market.
"Applicable Discount" means the following percentages for the 365-366 day
period preceding August 1 of each year indicated below:
[Download Table]
Percentage Year
---------- ----
60% 1998
63% 1999
66% 2000
69% 2001
72% 2002
75% 2003
81.25% 2004
87.50% 2005
93.75% 2006
100% 2007 and any year thereafter
(i) Voting Rights. Other than as set forth in subparagraph (j) below,
-------------
the holders of Series A Preferred Stock shall not have any voting rights, except
as otherwise required by law.
(j) Amendment. For so long as any shares of Series A Preferred Stock
---------
remain outstanding, the affirmative vote of the holders of at least 66 2/3% of
the outstanding shares of Series A Preferred Stock (excluding for these purposes
any shares held by the Company or any FKW Affiliate), voting separately as a
class, shall be necessary before the Company may (i) amend,
17
alter or repeal any of the provisions of this subparagraph C.(1) of Article
FOURTH or (ii) amend, modify or eliminate the Certificate of Incorporation of
the Company (including any amendment, modification or elimination by means of a
merger) in a manner that would adversely affect the powers, preferences or
rights of the holders of the shares of Series A Preferred Stock then
outstanding; provided, however, that the Company may amend or modify the
Certificate of Incorporation of the Company without the vote of any holders of
Series A Preferred Stock in order to satisfy its obligations under Section
2.1(c) of the Contribution and Exchange Agreement, dated June 11, 1997, among
Liberty Media Corporation, a Delaware corporation, Liberty IFE, Inc., a Colorado
corporation, and FKW, as such agreement may be amended from time to time. In the
event of a proposed merger or share exchange involving the Company (in which the
Company is not the surviving corporation) at a time when there are any shares of
Series A Preferred Stock outstanding, the Company, prior to any such merger or
share exchange, shall make appropriate provisions so that the surviving
corporation shall issue to the holders of the Series A Preferred Stock a series
of preferred stock of such surviving corporation with substantially identical
designations, voting powers, preferences and relative participating, optional
and special rights as those contained herein.
(k) Preemptive Rights. The holders of the Series A Preferred Stock
-----------------
will not have any preemptive right to subscribe for or purchase any shares of
stock or any other securities which may be issued by this Company.
(l) Conversion. The Series A Preferred Stock shall not be convertible
----------
into any other capital stock or instrument of the Company.
(m) Exclusion of Other Rights. Except as may otherwise be required by
-------------------------
law, the shares of Series A Preferred Stock shall not have any designations,
preferences, limitations or relative rights, other than those specifically set
forth in this Restated Certificate of Incorporation.
(n) Status of Acquired Shares. Shares of Series A Preferred Stock
-------------------------
redeemed by the Company pursuant to subparagraph (e) or otherwise acquired by
the Company will be restored to the status of authorized but unissued shares of
preferred stock, without designation as to class, and may thereafter be issued,
but not as shares of Series A Preferred Stock.
(o) Legending of Series A Preferred Stock. Each certificate
-------------------------------------
representing shares of Series A Preferred Stock shall bear a legend in
substantially the form set forth below:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER THE SECURITIES ACT OR UNLESS THE TRANSACTION IS EXEMPT FROM OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT."
18
FIFTH: The following provisions are inserted for the management of the
-----
business and the conduct of the affairs of the Company, and for further
definition, limitation and regulation of the powers of the Company and of its
directors and stockholders:
A. The business and affairs of the Company shall be managed by or under
the direction of the Board of Directors.
B. All actions of the Board of Directors (including, but not limited to,
interested party transactions, financing transactions, mergers and acquisitions,
changes in executive officers, director nominations and committee appointments)
will require the vote of at least 75% of the then duly elected and acting
members of the Board of Directors. Interested directors will be counted, and
may cast votes.
C. An amendment of the Bylaws or this Restated Certificate of
Incorporation shall require the unanimous approval of the stockholders.
D. The number of directors of the Company shall be as from time to time
fixed by, or in the manner provided in, the Bylaws of the Company. Election of
directors need not be by written ballot unless the Bylaws so provide.
E. The Board of Directors may by resolution designate one or more
committees and delegate certain responsibilities, powers and the authority to
act to such committees, except to the extent such delegation is prohibited by
Section 141 of the DGCL, and only as provided for more specifically in the
Bylaws of the Company.
F. No director shall be personally liable to the Company or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct of a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification of
this Article FIFTH by the stockholders of the Company shall not adversely affect
any right or protection of a director of the Company existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
G. In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Company, subject, nevertheless, to the provisions of the DGCL, this Restated
Certificate of Incorporation and any Bylaws adopted by the stockholders;
provided, however, that no Bylaws hereafter adopted by the stockholders shall
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invalidate any prior act of the directors which would have been valid if such
Bylaws had not been adopted.
SIXTH: The Company shall, to the fullest extent permitted by the DGCL, as
-----
the same may be amended and supplemented, indemnify any and all directors whom
it shall have power to indemnify under said law from and against any and all of
the expenses, liabilities, or other matters
19
referred to in or covered by said law, and the indemnification provided for
herein shall not be deemed exclusive of any other rights of which those
indemnified may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director and shall inure to the
benefit of the heirs, executors, and administrators of such person. The Company
shall, in its sole discretion, have the power to indemnify any and all officers
of the Company and its subsidiaries to the fullest extent permitted by the DGCL,
as the same may be amended and supplemented.
Any repeal or modification of the foregoing paragraph shall not adversely
affect any right or protection of a director or officer of the Company existing
hereunder with respect to any act or omission occurring prior to such repeal or
modification.
SEVENTH: Meetings of stockholders may be held within or without the State
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of Delaware, as the Bylaws may provide. The books of the Company may be kept
(subject to any provision contained in the DGCL) 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 Bylaws of the Company.
EIGHTH: The Company reserves the right to amend, alter, change or repeal
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any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed in this Restated Certificate of
Incorporation, the Bylaws of the Company or the laws of the State of Delaware,
and all rights herein conferred upon stockholders are granted subject to such
reservation.
20
IN WITNESS WHEREOF, the Company has caused this Restated Certificate of
Incorporation to be duly executed this 15th day of October, 1997.
FOX KIDS WORLDWIDE, INC.
By /s/ William Josey
------------------
William Josey
Secretary
Dates Referenced Herein and Documents Incorporated by Reference
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