Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 @Entertainment, Inc. 185 1.02M
2: EX-2.1 Form of Contribution Agreement 20 57K
3: EX-2.2 Form of Purchase Agreement 10 33K
4: EX-3.1 Amended & Restated Certificate of Incorporation 18 73K
5: EX-3.2 Bylaws of @Entertainment, Inc. 40 174K
6: EX-3.3 Form of Shareholders Agreement 80 230K
7: EX-3.4 Termination Agreement 3 14K
8: EX-3.5 Form of Registration Rights Agreement 23 74K
9: EX-5 Opinion of Baker & McKenzie 2 13K
10: EX-8 Form of Opinion of Baker & McKenzie 1 10K
11: EX-9.1 Form of Voting Agreement 7 26K
12: EX-9.2 Side Letter 5 16K
15: EX-10.11 Employment Agreement 6 37K
16: EX-10.12 Stock Option Agreement 11 54K
17: EX-10.13 Form of Employment Agreement 5 37K
18: EX-10.14 Form of Employment Agreement 6 33K
19: EX-10.15 Stock Option Agreement 11 53K
20: EX-10.16 Form of Stock Option Plan 29 74K
21: EX-10.19 Agreement for Digital Transmission 96 233K
13: EX-10.2 Form of Management Agreement 3 12K
22: EX-10.20 Agreement for Digital Transmission 95 231K
23: EX-10.21 Agreement for Digital Transmission 95 235K
14: EX-10.3 Form of Service Agreement 12 38K
24: EX-11.1 Statement Re: Calculation of Per Share Earnings 1 10K
25: EX-15 Letter From Kpmg Peat Marwick LLP 1 10K
26: EX-21 List of Subsidiaries 1 11K
27: EX-23.1 Consent of Kpmg Peat Marwick LLP 1 11K
28: EX-23.2 Consent of Kpmg Peat Marwick LLP 1 11K
29: EX-27 ƒ Financial Data Schedule 1 11K
EX-3.1 — Amended & Restated Certificate of Incorporation
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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
POLSTAR HOLDINGS, INC.
It is hereby certified that:
FIRST: The present name of the corporation (hereinafter called the
"Corporation") is: Polstar Holdings, Inc., which is the name under
which the Corporation was originally incorporated; and the date of
filing of the original certificate of incorporation of the
corporation with the Secretary of State of the State of Delaware is
May 27, 1997.
SECOND: The Corporation has not received any payment for any of its stock.
THIRD: The certificate of incorporation of the Corporation is hereby
amended by striking out Article First through Article Tenth thereof
and by substituting in lieu of said Articles the following new
Articles:
FOURTH: The provisions of the certificate of incorporation of the
Corporation, as herein amended, are hereby restated and integrated
into the single instrument which is hereinafter set forth:
ARTICLE I
The name of the corporation is "@ ENTERTAINMENT, INC." (hereinafter
referred to as the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, State
of Delaware. The name of its registered agent at such address is Corporation
Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
the State of Delaware.
ARTICLE IV
Section 1. Authorized. The Corporation is authorized to issue two classes
of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares which the Corporation is authorized to issue is
ninety million two thousand five hundred (90,002,500), of which seventy million
(70,000,000) shares are authorized for common stock, par value one cent (U.S.
$0.01) per share ("Common Stock") and twenty million two thousand five hundred
(20,002,500) shares are authorized for preferred stock, par value of one cent
(U.S. $0.01) per share ("Preferred Stock"). The Common Stock and Preferred
Stock shall have the voting rights, designations, preferences, qualifications,
privileges, limitations, options and other rights as follows:
Section 2. Common Stock.
A. Voting Rights. The holders of Common Stock shall be entitled to one
(1) vote per share on all matters submitted to the shareholders of the
Corporation.
B. Dividend Provisions. The holders of shares of Common Stock shall be
entitled to receive dividends when, as and if declared by the Board of
Directors.
Section 3. Preferred Stock. The Preferred Stock of the Corporation may be
issued as a class, without series or, if so determined from time to time by the
Board of Directors of the Corporation, in one or more series, each series to be
expressly designated by a distinguishing number, letter or title. Except for
the Series B Preferred Stock described below, the Preferred Stock, and each
series thereof, shall have such voting powers and other rights, privileges,
preferences and restrictions as shall be set forth in the resolutions of the
Board of Directors providing for the issuance of such preferred stock. There is
hereby expressly granted to the Board of Directors of the Corporation the
authority to determine, fix, alter or revoke any and all of the rights,
preferences, privileges and restrictions and other terms of the Preferred Stock
and any series thereof, and the number of shares constituting any series and the
designation thereof, and to increase or decrease the number of shares of any
series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding, or to eliminate entirely any
series if there no longer are any outstanding shares of such series (and,
thereupon, the shares previously designated for such series shall become
authorized but undesignated shares). In case the number of shares of any series
shall be so decreased, the shares constituting such shall resume the status they
had prior to the adoption of the resolution originally setting forth the number
of shares of such series.
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Two thousand five hundred (2,500) of the authorized shares of Preferred
Stock are hereby designated the "Series B Preferred Stock."
A. Voting Rights. Except as otherwise required by law, the shares of
Series B Preferred Stock shall be entitled to vote on an equal basis together
with the shares of Common Stock and not as a separate class or series or
sub-series at any annual or special meeting of the stockholders of the
Corporation, or may act by written consent in the same manner as the Common
Stock, in either case upon the following basis: each holder of shares of Series
B Preferred Stock shall be entitled to such number of votes for the Series B
Preferred Stock held by such holder on the record date fixed for such meeting,
or on the effective date of such written consent, as shall be equal to the
number of shares (rounded to the nearest whole share) of Common Stock into
which all shares of Series B Preferred Stock held by such holder are
convertible on such date.
B. Dividend Provisions. The holders of shares of Series B Preferred Stock
shall not be entitled to receive dividends.
C. Redemption.
(1) Mandatory Redemption. On March 31, 2004, the Corporation shall be
required to redeem the Series B Preferred Stock (the "Series B Redemption
Date").
(2) Optional Redemption. At the option of the Corporation, the Series B
Preferred Stock may be redeemed at any time, in whole or in part. Prior to the
date set for redemption of the Series B Preferred Stock pursuant to this
Section 3(C)(2), the holders of any shares thereof shall have the option to
convert their shares into Common Stock in accordance with Section 3(D). The
Corporation shall exercise said option by providing notice of redemption in
accordance with Article IV, Section 3(C)(4).
(3) Redemption Price. The redemption price per share of Series B
Preferred Stock to be paid upon a redemption under this Section 3(C) shall be
equal to ten thousand dollars (U.S. $10,000) (the "Series B Redemption Price").
The Series B Redemption Price shall be adjusted proportionately in the event
the Series B Preferred Stock is adjusted into a lesser number of shares or
subdivided into a greater number of shares. The Series B Redemption Price
shall be paid in cash.
(4) Redemption Notice. Notice of any redemption pursuant to this Section
3(C), shall be given by the Corporation by mailing notice (the "Series B
Redemption Notice"), via registered or certified mail, postage prepaid, or by
hand delivery to the holders of record of the Series B Preferred Stock (as the
close of business on the business day next preceding the day on which the
Series B Redemption Notice is given) at their respective addresses as the same
shall appear on the stock books of the Corporation, not less than 3 days nor
more than 60 days prior
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to the date of such redemption and the Series B Redemption Notice shall state
the time and place fixed for such redemption.
(5) Surrender of Certificates. Upon surrender of a certificate or
certificates representing shares to be redeemed pursuant to this Section 3(C),
the Corporation shall remit an amount equal to the product of, (i) the Series B
Redemption Price, times (ii) the number of shares of the Series B Preferred
Stock to be redeemed. If fewer than all of the shares represented by any such
certificate or certificates presented for redemption are to be redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder. If so required by the Corporation, any certificate for Series B
Preferred Stock surrendered for redemption shall be accompanied by instruments
of transfer, duly executed by the holder of such Series B Preferred Stock or
his duly authorized representative.
(6) Rights After the Series B Redemption Date. From and after the close
of business on the Series B Redemption Date, unless there shall have been a
default in the payment of the redemption price, all rights of holders of shares
of Series B Preferred Stock redeemed pursuant to Section 3(C) shall cease with
respect to such shares, and thereafter such shares shall not be deemed to be
outstanding for any purposes whatsoever.
(7) Cancellation of Redeemed Shares. Any shares of Series B preferred
Stock that shall at any time have been redeemed or repurchased by the
Corporation shall, after such redemption or repurchase, be cancelled by the
Corporation and shall not be available for reissuance.
D. Conversion Rights.
(1) Conversion Ratio. Subject to and in compliance with the provisions
of this Section 3(D), each holder of outstanding shares of Series B Preferred
Stock shall have the right at any time, or from time to time, prior to March
31, 2004, at such holder's option, without charge by the Corporation to such
holder, to convert such shares of Series B Preferred Stock into that number of
fully paid and nonassessable shares of Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) equal to the then applicable
Conversion Ratio (as defined below) multiplied by the number of shares of
Series B Preferred Stock to be converted pursuant to this Section 3(D). The
Conversion Ratio per share of Series B Preferred Stock shall be 1,944.80 shares
of Common Stock for each share of Series B Preferred Stock, subject to
adjustment from time to time as provided in Sections 3(D)(4) and 3(D)(5).
(2) Automatic Conversion. Notwithstanding any other provision of this
Section 3(D), each share of Series B Preferred Stock shall automatically be
converted into shares of Common Stock at the then applicable Conversation Ratio
for such shares of Series B Preferred Stock (i) simultaneously with the closing
(the "IPO Closing") of an underwritten public offering of shares to be listed
on the New York Stock Exchange or the American Stock Exchange, or to be quoted
on the National Association of Securities Dealers Automated Quotation System or
the
4
National Market System of the National Association of Securities Dealers
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale to the public of at least twenty
percent (20%) of the Common Stock of the Corporation outstanding immediately
after the IPO Closing or (ii) immediately prior to the closing of a merger or
consolidation of the Corporation with or into another corporation or entity
which is not an affiliate of the Corporation. For purposes of this Section
3(D)(2), "affiliate of the Corporation" shall mean any person or entity that
controls, is controlled by or is under common control with the Corporation.
(3) De Minimis Conversion. At no time shall any holder of outstanding
shares of Series B Preferred Stock convert less than twenty-five percent (25%)
of the total number of authorized shares of Series B Preferred Stock into
shares of Common Stock pursuant to this Section 3(D), provided, however, if at
any time a holder of Series B Preferred Stock holds less than twenty-five
percent (25%) of the total number of authorized shares of Series B Preferred
Stock, such holder shall have the right to convert all such holder's shares of
Series B Preferred Stock into Common Stock.
(4) Anti-Dilution. If at any time, or from time to time, the Corporation
shall declare and pay on or in respect of, Common Stock any dividend payable in
Common Stock or subdivide the outstanding number of shares of Common Stock into
a greater number of shares, or contract the number of outstanding shares of
Series B Preferred Stock by combining such shares into a smaller number of
shares of Series B Preferred Stock, the Conversion Ratio in effect at the time
of the taking of a record for such dividend or the taking of such other action
shall be proportionately increased as of such time;
(5) Anti-Dilution. If at any time, or from time to time, the Corporation
shall reduce the number of outstanding shares of Common Stock by combining such
shares into a smaller number of shares, or subdivide the outstanding shares of
Series B Preferred Stock into a greater number of shares of Series B Preferred
Stock, the Conversion Ratio in effect at the time of the taking of any such
action shall be proportionately decreased as of such time;
(6) Merger, Consolidation or Reclassification. If the Corporation shall
consolidate with or merge into any corporation (other than a merger or
consolidation referred to in clause (ii) of Section 3(D)(2)) or reclassify its
outstanding Common Stock, each share of Series B Preferred Stock shall
thereafter be convertible into the number of shares of stock or other
securities or property of the Corporation, or of the entity resulting from such
consolidation or merger, to which a holder of the number of shares of Common
Stock deliverable upon conversion of such share of Series B Preferred Stock
would have been entitled upon such consolidation or merger or reclassification,
had the holder of such share of Series B Preferred Stock exercised his right of
conversion and had such shares been issued and outstanding and had such holder
been the holder of record of such shares of Common Stock at the time of such
consolidation, merger or reclassification; and the Corporation shall make
lawful provision therefor as part of such consolidation, merger or
reclassification;
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(7) Conversion Notice. In order to exercise his conversion privilege, the
holder of any Series B Preferred Stock to be converted into Common Stock shall
present and surrender the certificate representing such Series B Preferred
Stock during usual business hours at any office or agency of the Corporation
and shall deliver a written notice of the election of such holder to convert
the shares represented by such certificate or any portion thereof specified in
such notice, and shall fix a date for conversion which is not less than five
nor more than ten days ("conversion date") from the date of the notice. Such
notice shall also specify the name or names (with addresses) in which the
certificate or certificates representing the Common Stock which shall be
issuable on such conversion shall be issued. If so required by the
Corporation, any certificate for Series B Preferred Stock surrendered for
conversion into Common Stock shall be accompanied by instruments of transfer,
duly executed by the holder of such Series B Preferred Stock or his duly
authorized representative. Each conversion of Series B Preferred Stock into
Common Stock shall be deemed to have been effected on the conversion date
provided for in such notice, provided that the certificates representing the
Series B Preferred Stock, and any required instruments of transfer, shall have
been received by the Corporation as aforesaid, and thereafter the person or
persons in whose name or names any certificate or certificates representing
Common Stock which shall be issuable on such conversion shall be deemed to have
become, immediately prior to the close of business on the conversion date, the
holder or holders of record of the Common Stock represented thereby;
(8) Lapse of Rights on Redemption. In case any of the Series B Preferred
Stock shall have been redeemed by the Corporation, such rights of conversion
shall cease and terminate with respect to such shares so redeemed unless
default shall have been made in the payment of the redemption price on the date
fixed for the redemption of such shares;
(9) Corporation's Obligation. As promptly as practicable after the
presentation and surrender for conversion into Common Stock, as herein
provided, of any certificate representing any Series B Preferred Stock, after
the conversion date, the Corporation shall issue and deliver to or upon the
written order of the holder thereof, certificates representing the number of
shares of Common Stock issuable upon such conversion. In case any certificates
representing Series B Preferred Stock shall be surrendered for conversion of
only a part of the shares represented thereby into Common Stock, the
Corporation shall also deliver to or upon the written order of the holder
thereof, a certificate or certificates representing the number of shares of
Series B Preferred Stock represented by such surrendered certificate which are
not being converted. The issuance of certificates representing Common Stock
issuable upon conversion of Series B Preferred Shares shall be made without
charge by the Corporation to the converting holder including, without
limitation, charges for any tax imposed on the Corporation with respect to the
issuance thereof. The Corporation shall not, however, be required to pay any
tax which may be payable with respect to any transfer involved in the issue and
delivery of any certificate in a name other than that of the holder of the
shares being converted, and the Corporation shall not be required to issue or
deliver any such certificate unless and until the person requesting the issue
thereof shall
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have paid to the Corporation the amount of such tax or shall have established
to the satisfaction of the Corporation that such tax has been paid;
(10) Rights of Converted Shares. All Series B Preferred Stock which shall
have been surrendered for conversion into Common Stock as herein provided upon
the conversion date shall no longer be deemed to be outstanding, and all rights
of the holders of such surrendered shares including the rights, if any, to
receive dividends, proceeds from redemption or liquidation and notices and to
vote, shall thereupon cease and terminate, except only the right of the holders
thereof to receive Common Stock in exchange therefor;
(11) Conversion Adjustment. If applicable, whenever the Conversion Ratio
is adjusted, as herein provided or as provided in the appropriate amendment to
this Certificate of Incorporation, the Corporation shall promptly file with the
transfer agent, if any, for the Common Stock of the Corporation a statement
signed by the Chief Executive Officer or a Vice President or the Secretary or
the Treasurer setting forth the adjusted Conversion Ratio determined as so
provided. Such statement shall set forth in reasonable detail such facts as
may be necessary to show the reason for and the manner of computing such
adjustment; and
(12) No Reissuance. Upon conversion of any shares of Series B Preferred
Stock into Common Stock, such shares of Series B Preferred Stock so converted
shall be cancelled and shall not be reissued.
(13) No Fractional Shares. No fractional shares or securities
representing fractional shares of Common Stock shall be issued upon conversion
of the Series B Preferred Stock. Any fractional interest in a share of Common
Stock resulting from conversion of Series B Preferred Stock shall be paid in
cash (computed to the nearest cent). Consideration paid for each fractional
share shall be an amount equal to (i) the amount resulting from dividing (x)
the fraction for such fractional share by (y) the Conversion Ratio, multiplied
by (ii) the Series B Redemption Price.
Section 4. Liquidation Preferences of Preferred Stock.
A. Order of Distribution. Subject to Section 4(B), upon the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, after payment or provisions for the payment of the debts
and other liabilities of the Corporation, the assets then available for
distribution to the shareholders shall be distributed as follows:
(1) First to the holders of the Series B Preferred Stock, to the extent
available, in an amount equal to $10,000.00 per share (the "Series B
Liquidation Preference"), but if the funds available therefor are insufficient,
then to the holders of Series B Preferred Stock on a pro-rata basis in
accordance with the number of shares held by each holder.
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(2) After distribution in accordance with clause (1) above, all remaining
assets available for distribution to the shareholders shall be distributed to
the holders of shares of the outstanding Common Stock on a pro rata basis in
accordance with the number of shares held by each holder.
B. Distributions after IPO Closing. Upon the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation that occurs after the IPO Closing, after payment or provisions for
the payment of the debts and other liabilities of the Corporation, the assets
then available for distribution to the shareholders shall be distributed as
follows: first, an amount equal to the aggregate Series B Liquidation
Preference for all outstanding shares of Series B Preferred Stock shall be
distributed pro rata among all holders of the Series B Preferred Stock based on
the number of shares held by each holder; and second, all remaining assets
available for distribution to the shareholders shall be distributed to the
holders of the outstanding Common Stock on a pro rata basis in accordance with
the number of shares held by each holder.
C. Adjustments to Liquidation Preference. Notwithstanding the foregoing,
the Series B Liquidation Preference, as the case may be, shall be adjusted
proportionately in the event that the number of shares of such series of
preferred stock is adjusted into a lesser number of shares or adjusted into a
greater number of shares.
ARTICLE V
The Board of Directors shall have the power to adopt, amend and repeal the
Bylaws of the Corporation (except so far as the Bylaws of the Corporation
adopted by the stockholders shall otherwise provide). Any Bylaws adopted by
the directors under the powers conferred hereby may be amended or repealed by
the directors or by the stockholders. Notwithstanding the foregoing and
anything contained in this Certificate of Incorporation to the contrary,
Sections 1(c), 5 and 7 of Article II, Section 2 of Article III and Article VII
of the Bylaws of the Corporation, as originally adopted by the directors, shall
not be amended or repealed and no provision inconsistent therewith shall be
adopted without the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class unless such amendment, repeal or newly adopted
provision is approved by not less than a two-thirds (2/3) vote of the
Continuing Directors (as defined in Article VIII).
ARTICLE VI
A. The Corporation shall indemnify to the fullest extent permitted by the
General Corporation Law of Delaware any person who has been made, or is
threatened to be made, a party to an action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise (including an action, suit
or proceeding by or in the right of the Corporation), by reason of the fact
that the person is or was a director or officer of the Corporation, or a
fiduciary within the meaning of the Employee Retirement Income Security Act of
1974 with respect to an employee benefit plan of the Corporation, or serves or
served at the request of the Corporation as a director
8
or officer, or as a fiduciary of an employee benefit plan, of another
corporation, partnership, joint venture, trust or other enterprise. In
addition, the Corporation shall pay for or reimburse any expenses incurred by
such persons who are parties to such proceedings, in advance of the final
disposition of such proceedings, to the fullest extent permitted by the General
Corporation Law of Delaware.
B. Neither any amendment nor repeal of this Article VI, nor the adoption
of any provisions of this Certificate of Incorporation inconsistent with this
Article VI, shall eliminate or reduce the effect of this Article VI in respect
of any matter occurring or arising or that, but for this Article VI, would
accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
ARTICLE VII
A. The business and affairs of the Corporation shall be managed by the
Board of Directors of the Corporation.
B. Except as otherwise provided for or fixed by or pursuant to the
provisions of Article IV hereof relating to the rights of the holders of
Preferred Stock to elect directors under specified circumstances, the number of
the directors of Corporation shall be fixed from time to time by or pursuant to
the Bylaws of the Corporation. From and after the effective date of the
Corporation's initial public offering (the "Effective Date") pursuant to the
Securities Act of 1933, as amended, the directors shall be classified, with
respect to the time for which they severally hold office, into three classes,
as nearly equal in number as possible, as shall be provided in the manner
specified in the Bylaws of the Corporation, the first class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
the first year following the Effective Date, the second class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
the second year following the Effective Date, and the third class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in the third year following the Effective Date, with each class to hold
office until its respective successors are duly elected and qualified. At each
annual meeting of the stockholders, the successors of the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their elections.
C. Advance notice of stockholder nominations for the election of directors
shall be given in the manner provided in the Bylaws of the Corporation.
Election of directors need not be by written ballot unless the Bylaws of the
Corporation shall so provide.
D. Except as otherwise provided for or fixed by or pursuant to the
provisions of Article IV hereof in relation to the rights of the holders of
Preferred Stock to elect directors under specified circumstances, newly-created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative
vote of a majority of the
9
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred and until
such director's successor shall have been elected and qualified. No decrease
in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
E. Subject to the rights of any Preferred Stock to elect directors under
specified circumstances, any director may be removed from office only with
cause and only by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class; provided, however, that if the Continuing Directors
(as defined in Article VIII) shall have adopted, by not less than a two-thirds
(2/3) vote of such Continuing Directors, a resolution approving the removal of
any director and have determined to recommend such removal for approval by the
holders of stock entitled to vote thereon, then such director may be removed
from office with or without cause upon the affirmative vote of the holders of
at least a majority of the outstanding shares entitled to vote thereon, voting
together as a single class. For purposes of paragraph (E) of this Article VII,
"cause" shall mean (1) dishonesty or fraud resulting in damage to the business
of the Corporation or any of its subsidiaries; (2) embezzlement or theft of
assets of the Corporation or any of its subsidiaries; (3) competing with the
Corporation or aiding a competitor of the Corporation or any of its
subsidiaries to the detriment of the Corporation or any of its subsidiaries;
(4) conduct of an illegal or criminal nature under the laws of the United
States, Poland, the United Kingdom, or any political subdivision thereof; (5)
conduct or activities that, as determined by the Corporation in the reasonable
exercise of its discretion, is injurious to the reputation or affairs of the
Corporation or any subsidiary; (6) violation, as determined by the Corporation
in the reasonable exercise of its discretion, of any applicable polices and
procedures set forth in the Corporation's policy manual as established from
time to time; or (7) any other willful misconduct by the Director which, as
determined by the Corporation in the reasonable exercise of its discretion, is
materially injurious to the Corporation, monetarily or otherwise.
F. To the fullest extent permitted by the General Corporation Law of the
State of Delaware, a director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this paragraph
shall be prospective only and shall not adversely affect any limitation on the
personal liability of a director of the Corporation with respect to any act or
omission occurring prior to the time of such repeal or modification.
G. Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all outstanding shares of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to alter, amend, adopt any
provision inconsistent with or repeal this Article VII; provided, however, that
if the Continuing Directors (as defined in Article VIII) shall have adopted, by
not less than a two-thirds (2/3) vote of such Continuing Directors, a
resolution approving the amendment or repeal proposal and have determined to
recommend it for approval by the holders of stock entitled to vote thereon,
then the vote required shall be the affirmative vote of the holders of at least
a majority of the outstanding shares entitled to vote thereon.
ARTICLE VIII
A. In addition to any affirmative vote required by law, this Certificate
of Incorporation, any resolution or resolutions adopted by the Board of
Directors pursuant to its authority under Article IV of this Certificate of
Incorporation, any agreement with any national securities exchange or
otherwise, any Business Combination involving the Corporation or any Subsidiary
and any Related Person or any Affiliate or Associate of a Related Person shall
be
10
subject to approval or authorization in the manner provided by this Article
VIII. Certain capitalized terms used herein are defined in paragraph (D) of
this Article VIII.
B. Except as otherwise expressly provided in paragraph (C) of this Article
VIII, no Business Combination shall be consummated or effected, either directly
or indirectly, unless such Business Combination shall have been approved or
authorized by the affirmative vote of the holders of not less than sixty-six
and two-thirds percent (66 2/3%) of the shares of Voting Stock which are not
Beneficially Owned by any Related Person or an Affiliate or Associate of such
Related Person, voting together as a single class (it being understood for
purposes of this Article VIII, each share of Voting Stock shall have one vote,
notwithstanding any provision contained in Article IV to the contrary),
notwithstanding the fact that no vote for such transaction or approval by some
lesser percentage of stockholders may be required or specified by law, this
Certificate of Incorporation, any resolution or resolutions adopted by the
Board of Directors of the Corporation pursuant to its authority under Article
IV of this Certificate of Incorporation, any agreement with any national
securities exchange or otherwise.
C. The approval or authorization of any Business Combination in the manner
provided for by paragraph (B) of this Article VIII shall not be required if all
the conditions specified in either paragraph (C)(1) or paragraph (C)(2) of this
Article VIII are satisfied:
(1) such Business Combination shall have been expressly approved by not
less than two-thirds (2/3) of the Continuing Directors, either in advance of or
subsequent to a Related Person having become a Related Person; or
(2) all of the conditions specified in the following clauses shall have
been met:
(a) the Fair Market Value as of the Consummation Date of the
consideration to be received per share of each class or series of Capital Stock
by Disinterested Stockholders in the Business Combination is not less than the
Highest Per Share Price (it being understood that the provisions of this
subparagraph (C)(2)(a) shall be required to be met with respect to every class
or series of the outstanding Capital Stock, whether or not the Related Person
has previously acquired any shares of a particular series or class of Capital
Stock); and
(b) the form of consideration to be received by Disinterested
Stockholders in the Business Combination shall be United States currency or the
form of consideration used by the Related Person in acquiring the largest
aggregate number of shares of the Capital Stock that such Related Person has
previously acquired; and
(c) after such Related Person has become a Related Person and
prior to the Consummation Date: (1) except as approved by not less than
two-thirds (2/3) of the Continuing Directors, there shall have been no failure
to declare and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) due on the outstanding Capital Stock; and (2) such
Related Person shall have not become the Beneficial Owner of any additional
11
shares of Voting Stock except as part of the transaction which results in such
Related Person becoming a Related Person; and
(d) after such Related Person has become a Related Person, such
Related Person shall not have received the benefit, directly or indirectly
(except proportionately as a stockholder of the Corporation), of any loans,
advances, guarantees, pledges or other financial assistance or tax advantages
provided by the Corporation or any Subsidiary, whether in anticipation of or in
connection with such Business Combination or otherwise; and
(e) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Act as then in
effect shall have been mailed to all Disinterested Stockholders at least thirty
(30) days prior to the date of the stockholders' meeting at which such Business
Combination is to be considered (whether or not a proxy or information statement
is required to be mailed pursuant to the Act) and such proxy or information
statement shall have contained at the front thereof, in a prominent place, such
recommendations and other relevant information concerning the Business
Combination as a majority of the Continuing Directors may determine so to
include.
D. For the purposes of this Article VIII:
(1) The term "Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, or any similar
United States statute enacted to supersede or supplement the Act.
(2) The term "Affiliate" shall have the meaning ascribed to it in Rule
12b-2 under the Act, as in effect on June 1, 1997, and shall include any Person
that, after giving effect to a Business Combination, would become an Affiliate.
(3) The term "Announcement Date" shall mean the date of the first public
announcement of a proposed Business Combination.
(4) The term "Associate" shall have the meaning ascribed to it in Rule
12b-2, under the Act as in effect on June 1, 1997 (the term "registrant," as
used in such Rule 12b-2, meaning in this case the Corporation), and shall
include any Person that, after giving effect to a Business Combination, would
become an Associate.
(5) The terms "Beneficial Owner" or "Beneficially Owned" shall mean, or
refer to stock ownership by, any person who beneficially owns any Voting Stock
within the meaning ascribed in Rule 13d-3 under the Act as in effect on June 1,
1997 or who has the right to acquire any such beneficial ownership (whether or
not such right is exercisable immediately, with the passage of time or subject
to any condition) pursuant to any agreement, contract, arrangement or
understanding or upon the exercise of any conversion, exchange or other right,
warrant or option,
12
or otherwise. A Person shall be deemed the Beneficial Owner of all Capital
Stock of which any Affiliate or Associate of such Person is the Beneficial
Owner.
(6) The term "Business Combination" shall mean any: (a) merger or
consolidation of the Corporation or a Subsidiary with or into a Related Person
or any other corporation which is, or after such merger or consolidation would
be, an Affiliate or Associate of a Related Person; (b) sale, lease, exchange,
mortgage, pledge, transfer or other disposition (in one transaction or a series
of transactions) to or with any Related Person or any Affiliate or Associate of
any Related Person, of all or any Substantial Amount of the assets of the
Corporation, one or more Subsidiaries, or the Corporation and one or more
Subsidiaries, other than in the ordinary course of business; (c) adoption of
any plan or proposal for the liquidation or dissolution of the Corporation
proposed by or on behalf of a Related Person or any Affiliate or Associate of
any Related Person; (d) sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to the
Corporation, one or more Subsidiaries, or the Corporation and one or more
Subsidiaries (in one transaction or a series of transactions) of all or any
Substantial Amount of the assets of a Related Person or any Affiliate or
Associate of any Related Person, other than in the ordinary course of business;
(e) issuance, pledge or transfer of securities of the Corporation, one or more
Subsidiaries, or the Corporation and one or more Subsidiaries (in one
transaction or a series of transactions) to or with a Related Person or any
Affiliate or Associate of any Related Person in exchange for a Substantial
Amount of cash, securities or other property (or a combination thereof), except
any issuance, pledge or transfer of such securities to any such Person if such
Person is acting as an underwriter with respect to such securities; (f)
reclassification of securities (including any reverse stock split) or
recapitalization of the Corporation, any merger or consolidation of the
Corporation with or into one or more Subsidiaries, or any other transaction
that would have the effect, either directly or indirectly, of increasing the
voting power or the proportionate share of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or indirectly
Beneficially Owned by any Related Person or any Affiliate or Associate of any
Related Person; (g) agreement, contract or other arrangement providing for any
of the transactions described in this definition of Business Combination; and
(h) any series of transactions that not less than two-thirds (2/3) of the
Continuing Directors determine are related and, if taken together, would
constitute a Business Combination under this definition of Business Combination
(7) The term "Capital Stock" shall mean all capital stock of any class of
the Corporation authorized to be issued from time to time under this
Certificate of Incorporation whether now or hereafter outstanding.
(8) The term "Consummation Date" shall mean the date of the consummation
of a Business Combination.
(9) The term "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is not the Related Person, and not an
Affiliate, Associate, representative or nominee of the Related Person or of
such an Affiliate or Associate, that is
13
involved in the relevant Business Combination, and (a) was a member of the
Board of Directors prior to the Determination Date with respect to such Related
Person or (b) whose initial election as a director of the Corporation succeeds
a Continuing Director and was recommended by a majority vote of the Continuing
Directors then in office; provided, that in either case, such Continuing
Director shall have continued in office after becoming a Continuing Director.
(10) The term "Determination Date" shall mean the date and time at which a
Person became a related Person.
(11) The term "Disinterested Stockholder" shall mean a holder of shares of
a particular class or series of Capital Stock who is not (a) a Related Person
with or for the benefit of whom a Business Combination is proposed to be
consummated or (b) an Affiliate or Associate of such Related Person.
(12) The term "Fair Market Value" shall mean: (a) in the case of United
States currency, the amount thereof; (b) in the case of stock and other
securities, the highest closing sales price during the 30-day period
immediately preceding the date in question of a share or trading unit of such
stock or security on the Composite Tape for New York Stock Exchange-- Listed
Stocks, or, if such stock or security is not listed on the New York Stock
Exchange, on the principal United States securities exchange registered under
the Act on which such stock or security is listed, or, if such stock or
security is not listed on any such securities exchange, the highest closing
sale price or bid quotation with respect to a share or trading unit of such
stock or security during the 30-day period on the National Association of
Securities Dealers, Inc. Automated Quotations System or any successor system
or, if no such quotations are available, the fair market value on the date in
question of a share or trading unit of such stock or security as determined in
good faith by a majority vote of the Continuing Directors; or (c) in the case
of property other than cash, stock or other securities, the fair market value
of such property on the date in question as determined in good faith by a
majority vote of the Continuing Directors.
(13) The term "Highest Per Share Price" shall mean, with respect to the
consideration to be received per share of each class or series of Capital Stock
by Disinterested Stockholders in any particular Business Combination, the
higher of the following:
(a) the highest per share price (including brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on behalf of the Related Person
in acquiring Beneficial Ownership of any of its holdings of such class or
series of Capital Stock of the Corporation (1) within the two-year period
immediately prior to the Announcement Date or (2) in the transaction or series
of transactions in which the Related Person became a Related Person, whichever
is higher; or
(b) the Fair Market Value per share of the shares of Capital Stock being
acquired in the Business Combination as of (1) the Announcement Date or (2) the
date on which the Related Person became a Related Person, whichever is higher.
14
For the purposes of this paragraph (D)(13), (i) the price deemed to have been
paid by a Related Person for any shares of Capital Stock of which an Affiliate
or Associate is the Beneficial Owner shall be the price which is the highest of
the following: (1) the price paid upon the acquisition thereof by the relevant
Affiliate or Associate (if any, and whether or not such Affiliate or Associate
was an Affiliate or Associate at the time of such acquisition) or (2) the Fair
Market Value of such Capital Stock as of the day when the Related Person became
a Beneficial Owner thereof; (ii) in determining the Highest Per Share Price, all
purchases by the Related Person shall be taken into account, regardless of
whether the shares were purchased before or after the Related Person became a
Related Person; (iii) a Person shall be deemed to have acquired a share of
Capital Stock at the time when such Person became the Beneficial Owner thereof;
and (iv) appropriate adjustments shall be made to reflect the relevant effect of
any stock dividends, splits and distributions and any combination or
reclassification of Capital Stock.
(14) The phrase "consideration to be received" as used in subparagraph
(C)(2)(a) of this Article VIII shall include, without limitation, the shares of
Common Stock or any other class or series of Capital Stock retained by the
Disinterested Stockholders in the event of a Business Combination that is a
merger or consolidation in which the Corporation is the surviving entity.
(15) The term "Person" shall mean any individual, corporation, partnership
or other entity, including any group comprised of any Person and any other
Person or any Affiliate or Associate thereof with whom such Person or any
Affiliate or Associate thereof has any agreement, arrangement or understanding,
directly or indirectly, for the purpose of acquiring, holding, voting, or
disposing of Voting Stock and each Person, and any Affiliate or Associate
thereof, that is a member of such group.
(16) The term "Related Person" shall mean any person who alone or together
with any Affiliates or Associates is:
(a) the Beneficial Owner, directly or indirectly, of an aggregate
percentage of the Voting Stock equal to or exceeding ten percent (10%), or
(b) an assignee of or otherwise has succeeded to the Beneficial Ownership
of any shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question Beneficially Owned by any Related
Person, if such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering within
the meaning of the Securities Act of 1933, as amended; provided, however, that
the term "Related Person" shall not include: (x) the Corporation or any
Subsidiary, all of the Capital Stock of or other ownership interest in which is
directly or indirectly owned by the Corporation; (y) any Person whose
acquisition of such aggregate percentage of Voting Stock was approved by not
less than a two-thirds (2/3) vote of the Continuing Directors prior to such
acquisition; or (z) any pension, profit sharing, employee stock ownership or
other
15
employee benefit plan of the Corporation or any Subsidiary or any trustee or
fiduciary when acting in such capacity with respect to any such Plan.
(17) The term "Subsidiary" shall mean any Person, a majority of any class
of equity securities in which is owned, directly or indirectly, by the
Corporation, one or more Subsidiaries, or the Corporation and one or more
Subsidiaries.
(18) The term "Substantial Amount" shall mean an amount of stock,
securities or other assets or property having a Fair Market Value equal to ten
percent (10%) or more of the Fair Market Value of the total consolidated assets
of the Corporation and its Subsidiaries taken as a whole as of the end of the
most recent fiscal year of the Corporation ended prior to the time as of which
the determination is being made.
(19) The term "Voting Stock" shall mean all outstanding shares of Common
Stock of the Corporation and all other outstanding shares of Capital Stock, if
any, entitled to vote on each matter on which the holders of record of Common
Stock shall be entitled to vote, and each reference to a proportion of shares
of Voting Stock shall refer to such proportion of the votes entitled to be cast
by the holders of such shares of Common Stock and other Capital Stock voting as
one class (it being understood that for purposes of this Article VIII, each
share of Voting Stock shall have the number of votes granted to it in
accordance with Article IV of this Certificate of Incorporation).
E. The fact that any Business Combination complies with the provisions of
paragraph (C)(2) of this Article VIII shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or any
member thereof, to approve such Business Combination or recommend its adoption
or approval to the stockholders of the Corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
F. A two-thirds (2/3) majority of the Continuing Directors of the
Corporation shall have the power and duty to determine for the purposes of this
Article VIII, on the basis of information known to them after reasonable
inquiry, (i) whether a person is a Related Party, (ii) the number of shares of
Voting Stock Beneficially Owned by any person, and (iii) whether a person is an
Affiliate or Associate of another. A two-thirds (2/3) majority of the
Continuing Directors of the Corporation shall have the further power to
interpret all of the terms and provisions of this Article VIII.
G. The affirmative vote of not less than sixty-six and two-thirds percent
(66 2/3%) of the shares of Voting Stock which are not Beneficially Owned by any
Related Person or any Affiliate or Associate of a Related Person shall be
required to alter, amend or repeal, or adopt any provisions inconsistent with,
the provisions set forth in this Article VIII; provided, however, that if the
Continuing Directors shall have adopted, by not less than a two-thirds (2/3)
vote of such
16
Continuing Directors, a resolution approving the amendment or repeal proposal
and have determined to recommend it for approval by the holders of stock
entitled to vote thereon, then the vote required shall be the affirmative vote
of the holders of at least a majority of the outstanding shares entitled to
vote thereon.
ARTICLE IX
Any action required or permitted to be taken by the stockholders of the
Corporation shall be effected at a duly called annual or special meeting of such
holders and shall not be effected by a consent in writing of such holders;
provided, however, that any action required to be taken by the stockholders of
the Corporation may be effected by a consent to such action signed by the
holders of the class of stock entitled to vote thereon if approved by not less
than a two-thirds (2/3) vote of the Continuing Directors (as defined in Article
VIII). All such consents shall be filed with the corporate records of the
Corporation. Except as otherwise required by law and subject to the rights of
the holders of the Preferred Stock, special meetings of stockholders of the
Corporation may be called only by the Chairman of the Board, the Chief Executive
Officer or any two directors or the Board of Directors pursuant to a resolution
approved by a majority of the entire Board of Directors. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend, or adopt any provision inconsistent with or repeal
this Article IX; provided, however, that if the Continuing Directors shall have
adopted, by not less than a two-thirds (2/3) vote of such Continuing Directors,
a resolution approving the amendment or repeal proposal and have determined to
recommend it for approval by the holders of stock entitled to vote thereon, then
the vote required shall be the affirmative vote of the holders of at least a
majority of the outstanding shares entitled to vote thereon.
ARTICLE X
The business and affairs of the Corporation shall be managed by the Board
of Directors.
ARTICLE XI
The Corporation is to have perpetual existence.
ARTICLE XII
Subject to the other terms of this Certificate of Incorporation, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter
prescribed by statute and this Certificate of Incorporation, and all rights
conferred on stockholders herein are granted subject to this reservation.
FIFTH: The amendments and the restatement herein certified have been duly
adopted by at least a majority of the directors who have been
elected and qualified in the manner and by the vote prescribed by
Section 241 and Section 245 of the General Corporation Law of the
State of Delaware.
17
Signed on June ___, 1997
____________________________
____________________________
____________________________
at least a majority of the
directors, there being no officers
of the Corporation
____________________________
____________________________
____________________________
at least a majority of the
directors, there being no officers
of the Corporation
____________________________
____________________________
____________________________
at least a majority of the
directors, there being no officers
of the Corporation
18
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 3/31/04 | | 3 | | 4 | | | 10-Q |
| Filed on: | | 6/24/97 |
| | 6/1/97 | | 12 |
| | 5/27/97 | | 1 |
| List all Filings |
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