Attached files
Exhibit
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CHARTER
COMMUNICATIONS, INC.
The
undersigned, Richard R. Dykhouse, certifies that he is the Vice President,
Associate General Counsel and Corporate Secretary of Charter Communications,
Inc., a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), and does hereby further certify as
follows:
(1) The name
of the Corporation is Charter Communications, Inc. The original
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on July 22, 1999.
(2) The
Corporation, Charter Investment, Inc. and certain of the Corporation’s direct
and indirect subsidiaries filed a joint plan of reorganization (the "Joint
Plan") which, pursuant to chapter 11 of title 11 of the United States Code (the
"Bankruptcy Code"), was confirmed by an order, entered November 17, 2009, of the
United States Bankruptcy Court for the Southern District of New York, a court
having jurisdiction of a proceeding under the Bankruptcy Code, and that such
order provides for the making and filing of this Amended and Restated
Certificate of Incorporation.
(3) This
Amended and Restated Certificate of Incorporation amends and, as amended,
restates in its entirety the Certificate of Incorporation and has been duly
made, executed and acknowledged by the officers of the Corporation in accordance
with Sections 242, 245 and 303 of the General Corporation Law of the State of
Delaware.
(4) The text
of the Certificate of Incorporation of the Corporation is hereby amended and
restated to read in its entirety as follows:
FIRST: NAME
The name
of the corporation is Charter Communications, Inc. (the
"Corporation").
SECOND: REGISTERED
OFFICE
The
registered office of the Corporation is located at 2711 Centerville Road, Suite
400, City of Wilmington, New Castle County, State of Delaware. The
name of its registered agent at such address is Corporation Service
Company.
THIRD: PURPOSE
The
purpose of the Corporation is to engage in any lawful act or activity for which
a corporation may be organized under the General Corporation Law of the State of
Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
FOURTH: CAPITAL
STOCK
(a) AUTHORIZED
CAPITAL STOCK.
(i) The
total number of shares of stock that the Corporation shall have authority to
issue is 1,175,000,000 shares, consisting of: (1) 900,000,000 shares of Class A
Common Stock, par value $.001 per share ("Class A Common Stock"); (2) 25,000,000
shares of Class B Common Stock, par value $.001 per share ("Class B Common
Stock"); and (3) 250,000,000 shares of Preferred Stock, par value $.001 per
share ("Preferred Stock"), issuable in one or more series as hereinafter
provided, of which 5,520,001 shares of Preferred Stock will be 15% Series A
Pay-In-Kind Preferred Stock on the terms set forth on Exhibit A attached
hereto, which is incorporated herein by reference. Except as
otherwise provided in this Certificate of Incorporation, Class A Common Stock
and Class B Common Stock shall be identical in all respects and shall have equal
rights and privileges. Class A Common Stock and Class B Common Stock
are herein sometimes collectively or individually referred to as the "Common
Stock."
(ii) The
number of authorized shares of Class A Common Stock or Preferred Stock may be
increased or decreased (but the number of authorized shares of Class A Common
Stock may not be decreased below (1) the number of shares thereof then
outstanding plus (2) the number of shares of Class A Common Stock issuable upon
the conversion of Class B Common Stock and the exercise of outstanding options,
warrants, exchange rights, conversion rights or similar rights for Class A
Common Stock plus (3) the number of shares of Class A Common Stock issuable by
the Corporation upon the exchange of Membership Units pursuant to that certain
Exchange Agreement, dated as of the effective date of the Joint Plan (as amended
from time to time, the "Exchange Agreement"), entered into by and among the
Corporation, Charter Communications Holding Company, LLC, a Delaware limited
liability company ("Holdco"), Paul G. Allen ("Mr. Allen") and one or more
entities controlled by Mr. Allen, and the number of authorized shares of
Preferred Stock may not be decreased below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of the Common Stock together with any other class of capital stock of the
Corporation entitled to vote generally in the election of directors irrespective
of the provisions of Section 242(b)(2) of the GCL or any corresponding provision
hereinafter enacted. "Membership Units" shall mean limited liability
company interests in Holdco or any successor entity thereto, issued under a
Limited Liability Company Agreement as amended from time to time.
(iii) The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Class A Common Stock, solely for the purposes of issuance
upon conversion of the outstanding shares of Class B Common Stock and upon
exchange of Membership Units pursuant to the Exchange Agreement, such number of
shares of Class A
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Common
Stock that shall be issuable (1) upon the conversion of all such outstanding
shares of Class B Common Stock and (2) upon the exchange of Membership Units
pursuant to the Exchange Agreement; provided, however, that nothing
contained herein shall be construed to preclude the Corporation from satisfying
its obligations in respect of the conversion of the outstanding shares of Class
B Common Stock and/or the exchange of Membership Units pursuant to the Exchange
Agreement by delivery of shares of Class A Common Stock which are held in the
treasury of the Corporation. All shares of Class A Common Stock
issued upon conversion of shares of Class B Common Stock and/or exchange of
Membership Units pursuant to the Exchange Agreement shall, upon issue, be
validly issued, fully paid and non-assessable.
(iv) Notwithstanding
anything to the contrary in this Certificate of Incorporation, the Corporation
shall not issue nonvoting equity securities to the extent prohibited by Section
1123(a)(6) of the Bankruptcy Code (11 U.S.C. § 1123(a)(6)). The
prohibition on the issuance of nonvoting equity securities is included in this
Certificate of Incorporation in compliance with Section 1123(a)(6) of the
Bankruptcy Code (11 U.S.C. § 1123(a)(6)).
(b) COMMON
STOCK VOTING RIGHTS AND DIRECTORS; DIVIDENDS AND DISTRIBUTIONS; SPLITS; OPTIONS;
MERGERS; LIQUIDATION; PREEMPTIVE RIGHTS; CONVERSION.
(i) Common
Stock Voting Rights and Directors.
(A) The
holders of shares of Common Stock shall have the following voting rights and
powers:
(1) Each
holder of Class A Common Stock shall be entitled, with respect to each share of
Class A Common Stock held by such holder on the applicable record date, to one
(1) vote in person or by proxy on all matters submitted to a vote of the holders
of Class A Common Stock, whether voting separately as a class or otherwise;
provided, however, that the
votes attributable to each share of Class A Common Stock held by any holder
(other than an Authorized Class B Holder, as defined in Clause (b)(viii)(B) of
this Article FOURTH) shall be automatically reduced pro rata amongst all shares
of Class A Common Stock held by such holder and (if applicable) shares of Class
A Common Stock held by any other holder (other than an Authorized Class B
Holder) included in any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) with such holder, so that no "person" or "group" (other than an
Authorized Class B Holder) is or becomes the holder or “beneficial owner” (as such term is used in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person” (as such term is used in Section
13(d) of the Exchange Act) such “person” shall be deemed to have beneficial
ownership of all securities that such “person” has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition), directly or
indirectly, of more
than 34.9% of the combined voting power of the capital stock of the Corporation;
provided, further that (i) a
majority of the Disinterested Board Members shall have the authority (x) to
determine the application of the immediately preceding proviso and make
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any
necessary adjustments to the number of votes attributable to each share of Class
A Common Stock pursuant to such proviso, which determination and/or adjustment
if made in good faith shall be conclusive and binding on the Corporation and its
stockholders, and (y) to waive such proviso with respect to any "person" or
"group" (a "Relevant
Interested Stockholder") and (ii) in no event shall such proviso continue
to be applicable from and after September 15, 2014; provided, further that for
purposes of clause (i)(y) of the immediately preceding proviso, reference to an
"Interested Stockholder" in the definition of Disinterested Board Members shall
instead be deemed to refer to the "Relevant Interested Stockholder" to whom such
waiver would apply. For the avoidance of doubt, nothing herein shall
reduce the voting rights attributable to any shares of capital stock held from
time to time by any Authorized Class B Holder.
(2) Each
holder of Class B Common Stock shall be entitled, with respect to each share of
Class B Common Stock held by such holder on the applicable record date, to a
number of votes per share in person or by proxy on all matters submitted to a
vote of the holders of Class B Common Stock, whether voting separately as a
class or otherwise, such that shares of Class B Common Stock, in the aggregate,
constitute at all times during which shares of Class B Common Stock are
outstanding 35% (determined on a fully diluted basis) of the combined voting
power of the capital stock of the Corporation. For purposes of this
clause (2), any determination “on a fully diluted basis” shall be determined in
the same manner as under the Amended and Restated Credit Agreement, dated as of
March 18, 1999, as amended and restated on March 6, 2007, among Charter
Communications Operating, LLC, CCO Holdings, LLC, the several banks and other
financial institutions or entities from time to time parties thereto, J.P.
Morgan Chase Bank, N.A., as administrative agent, J.P. Morgan Chase Bank, N.A.
and Bank of America, N.A., as syndication agents, Citicorp North America, Inc.,
Deutsche Bank Securities Inc., General Electric Capital Corporation and Credit
Suisse Securities (USA) LLC, as revolving facility co-documentation agents, and
Citicorp North America, Inc., Credit Suisse Securities (USA) LLC, General
Electric Capital Corporation and Deutsche Bank Securities Inc., as term facility
co-documentation agents, as the same may be amended, supplemented or modified
from time to time.
(B) The
number of directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws of the
Corporation.
(1) In
all elections of directors, the holders of Class B Common Stock voting together
as a separate class shall be entitled to elect thirty-five percent (35%) of the
members of the Board of Directors (rounded up to the next whole
number).
(2) The
holders of Class A Common Stock voting together as a separate class (or if any
holders of shares of Preferred Stock are entitled to vote thereon together with
the holders of Class A Common Stock, as one class with such holders of shares of
Preferred Stock), shall be entitled to elect each other member of the Board of
Directors not elected by holders of Class B Common Stock pursuant to Clause
(b)(i)(B)(1) of this Article FOURTH (and except for any member of the Board of
Directors elected separately by the holders of one or more series of Preferred
Stock);
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provided, however, that at such
time as all outstanding shares of Class B Common Stock have been converted into
shares of Class A Common Stock in accordance with Clause (b)(viii) of this
Article FOURTH, the holders of Class A Common Stock (or if any holders of shares
of Preferred Stock are entitled to vote thereon together with the holders of
Class A Common Stock, as one class with such holders of shares of Preferred
Stock) shall be entitled to elect all members of the Board of Directors (other
than any member of the Board of Directors elected separately by the holders of
one or more series of Preferred Stock).
(3) Any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause of a member of the Board of Directors
elected by the holders of Class A Common Stock voting separately as a class (or
if any holders of Preferred Stock are entitled to vote thereon together with the
holders of Class A Common Stock, as one class with such holders of Preferred
Stock) or, if prior to the Company’s first annual meeting
of stockholders after the Effective Date, appointed by a holder of
Class A Common Stock pursuant to the Joint Plan, shall be filled by majority
vote of the remaining director or directors so elected or so appointed by the
holders of Class A Common Stock, even if less than a quorum, or if there are no
such directors or such directors fail to fill such vacancies within thirty (30)
days, by the vote of the holders of Class A Common Stock, voting separately as a
class (or if any holders of Preferred Stock are entitled to vote thereon
together with the holders of Class A Common Stock, as one class with such
holders of Preferred Stock). Any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause of a member of the Board of Directors elected by the holders of Class B
Common Stock voting separately as a class or, if prior to the Company’s first
annual meeting of stockholders after the Effective Date, appointed by
the holders of Class B Common Stock pursuant to the Joint Plan, shall be filled
by majority vote of the remaining director or directors so elected or so
appointed by the holders of Class B Common Stock, even if less than a quorum, or
if there are no such directors or such directors fail to fill such vacancies
within thirty (30) days, by the vote of the holders of Class B Common Stock
voting separately as a class; provided, however, that at such
time as all outstanding shares of Class B Common Stock have been converted into
shares of Class A Common Stock in accordance with Clause (b)(viii) of this
Article FOURTH, any such vacancies shall be filled by majority vote of the
remaining directors then in office, although less than a quorum, or by a sole
remaining director, or if there are no such directors or such directors fail to
fill such vacancies within thirty (30) days, by the holders of Class A Common
Stock (or if any holders of shares of Preferred Stock are entitled to vote
thereon together with the holders of Class A Common Stock, together as one class
with such holders of Preferred Stock). The foregoing provisions of this Clause
(b)(i)(B)(3) of this Article FOURTH shall not apply to any members of the Board
of Directors elected by one or more series of Preferred Stock voting as a
separate class.
(4) If
the number of directors to be appointed to the initial Board of Directors
pursuant to Article VI.N. of the Joint Plan yields less than eleven (11)
individuals, the remaining directors on the initial Board of Directors (the “Gap
Directors”) shall be filled on or after the 31st day after the Effective Date by
majority
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vote of
the entire Board of Directors. If, prior to the Company’s first
annual meeting of stockholders after the Effective Date, there are any vacancies
on the Board of Directors resulting from death, resignation, disqualification,
removal or other cause of a Gap Director, such vacancies shall be filled by
majority vote of the remaining members of the entire Board of
Directors.
(C) Except
as otherwise required by applicable law, and Clauses (b)(i)(A) and (b)(i)(E) of
this Article FOURTH notwithstanding, the Corporation shall not, without the
prior affirmative vote of holders of at least a majority of the voting power of
the outstanding Class B Common Stock voting as a separate class, amend, modify
or repeal, or agree to amend, modify or repeal, in each case including by
merger, consolidation or otherwise, Clauses (a)(i), (a)(ii), (a)(iii),
(b)(i)(A), (b)(i)(B)(1), (b)(i)(B)(3), this (b)(i)(C), (b)(i)(D), (b)(ii),
(b)(iii), (b)(v), (b)(vi) or (b)(viii) of this Article FOURTH, Clause (a) or (b)
of Article FIFTH, Article SIXTH, Article EIGHTH, Article NINTH or Article
TENTH.
(D) Except
as otherwise required by applicable law, and Clauses (b)(i)(A) and (b)(i)(E) of
this Article FOURTH notwithstanding, the Corporation shall not, without the
prior affirmative vote of holders of at least a majority of the voting power of
the outstanding Class A Common Stock voting as a separate class, amend, modify
or repeal, or agree to amend, modify or repeal, in each case including by
merger, consolidation or otherwise, Clauses (a)(i), (a)(ii), (b)(i)(A),
(b)(i)(B), (b)(i)(C), this (b)(i)(D), (b)(ii), (b)(iii), (b)(v), (b)(vi) or
(b)(viii) of this Article FOURTH, Clause (a) or (c) of Article FIFTH, Article
SIXTH, Article EIGHTH, Article NINTH or Article TENTH.
(E) Except
as otherwise provided in this Certificate of Incorporation (including without
limitation Clauses (b)(i)(B), (b)(i)(C) and (b)(i)(D) of this Article FOURTH,
Article FIFTH and Article EIGHTH of this Certificate of Incorporation) or
required by applicable law, the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation (or if any holders of shares of any series of Preferred Stock are
entitled to vote together with the holders of Common Stock, as one class with
such holders of such series of Preferred Stock).
(ii) Dividends
and Distributions.
(A) Subject
to the preferences applicable to any series of Preferred Stock outstanding at
any time, the holders of shares of Common Stock shall be entitled to receive
such dividends and other distributions in cash, property or shares of stock of
the Corporation as may be declared thereon by the Board of Directors from time
to time out of assets or funds of the Corporation legally available therefor;
provided, however, that,
subject to the provisions of this Clause (b)(ii) of this Article FOURTH, the
Corporation shall not pay dividends or make distributions to any holders of any
class of Common Stock unless simultaneously with such dividend or distribution,
as the case may be, the Corporation makes the same dividend or distribution with
respect to each outstanding share of Common Stock regardless of
class.
(B) In
the case of dividends or other distributions on Common Stock payable in Class A
Common Stock or Class B Common Stock, including without limitation
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distributions
pursuant to stock splits or divisions of Class A Common Stock or Class B Common
Stock, only shares of Class A Common Stock shall be distributed with respect to
Class A Common Stock and only shares of Class B Common Stock shall be
distributed with respect to Class B Common Stock. In the case of any
such dividend or distribution payable in shares of Class A Common Stock or Class
B Common Stock, each class of Common Stock shall receive a dividend or
distribution in shares of its class of Common Stock and the number of shares of
each class of Common Stock payable per share of such class of Common Stock shall
be equal in number.
(iii) Stock
Splits.
The
Corporation shall not in any manner subdivide (by any stock split, stock
dividend, reclassification, recapitalization or otherwise) or combine (by
reverse stock split, reclassification, recapitalization or otherwise) the
outstanding shares of one class of Common Stock unless the outstanding shares of
all classes of Common Stock shall be proportionately subdivided or
combined.
(iv) Options,
Rights or Warrants.
The
Corporation shall have the power to create and issue, whether or not in
connection with the issue and sale of any shares of stock or other securities of
the Corporation, options, exchange rights, warrants, convertible rights, and
similar rights permitting the holders thereof to purchase from the Corporation
any shares of its capital stock of any class or classes at the time authorized,
such options, exchange rights, warrants, convertible rights and similar rights
to have such terms and conditions, and to be evidenced by or in such instrument
or instruments, consistent with the terms and provisions of this Certificate of
Incorporation and as shall be approved by the Board of Directors.
(v) Mergers,
Consolidation, Etc.
In the
event that the Corporation shall enter into any consolidation, merger,
combination or other transaction (in each case other than incident to an
exchange of Membership Units, Common Stock and/or other securities for Common
Stock pursuant to the Exchange Agreement) in which shares of Common Stock are
exchanged for or converted into other stock or securities, cash and/or any other
property, then, and in such event, the shares of each class of Common Stock
shall be exchanged for or converted into the same kind and amount of stock,
securities, cash and/or any other property, as the case may be, into which or
for which each share of any other class of Common Stock is exchanged or
converted; provided, however, that if
shares of Common Stock are exchanged for or converted into shares of capital
stock, such shares received upon such exchange or conversion may differ, but
only in a manner substantially similar to the manner in which Class A Common
Stock and Class B Common Stock differ, and, in any event, and without
limitation, the conversion rights and obligations of the holders of Class B
Common Stock and the other relative rights and treatment accorded to the Class A
Common Stock and Class B Common Stock in this Clause (b) of this Article FOURTH
shall be preserved. To the fullest extent permitted by law, any
construction, calculation or interpretation made by the Board of Directors in
determining the application of the provisions of this Clause (b)(v) of this
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Article
FOURTH in good faith shall be conclusive and binding on the Corporation and its
stockholders.
(vi) Liquidation
Rights.
In the
event of any dissolution, liquidation or winding-up of the affairs of the
Corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the Corporation and after making
provision for the holders of any series of Preferred Stock entitled thereto, the
remaining assets and funds of the Corporation, if any, shall be divided among
and paid ratably to the holders of the shares of Class A Common Stock and Class
B Common Stock treated as a single class.
(vii) No
Preemptive Rights.
The
holders of shares of Common Stock are not entitled to any preemptive right to
subscribe for, purchase or receive any part of any new or additional issue of
stock of any class, whether now or hereafter authorized, or of bonds, debentures
or other securities convertible into or exchangeable for stock.
(viii) Conversion
of Class B Common Stock.
(A) Subject
to the Lock-Up Agreement, each holder of a share of Class B Common Stock shall
have the right to convert such share into one (1) fully paid and non-assessable
share of Class A Common Stock, at any time and from time to time.
(B) Shares
of Class B Common Stock shall at all times be held only by Authorized Class B
Holders (as hereinafter defined). In that regard, each share of Class
B Common Stock Transferred (as hereinafter defined) to one or more persons or
entities other than Authorized Class B Holders shall automatically convert into
one (1) fully paid and non-assessable share of Class A Common Stock upon such
Transfer. "Authorized Class B Holders" shall mean any of (1) Mr.
Allen, (2) his estate, spouse, immediate family members and heirs and (3) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners or other owners of which consist exclusively of Mr. Allen
or such other persons or entities referred to in clause (2) above or a
combination thereof. "Transfer" shall mean any sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or other
disposition.
(C) At
any time on or after January 1, 2011 and until September 15, 2014, a majority of
the Disinterested Board Members (as hereinafter defined) shall have the right to
cause each share of Class B Common Stock held by such holder to automatically
convert into one (1) fully paid and non-assessable share of Class A Common
Stock. At any time on or after September 15, 2014, a majority of the
members of the Board of Directors (excluding members of the Board of Directors
elected by the holders of Class B Common Stock pursuant to Clause (b)(i)(B)(1)
of this Article FOURTH) shall have the right to cause each share of Class B
Common Stock held by such holder to automatically convert into one (1) fully
paid and non-assessable share of Class A Common Stock. "Disinterested
Board Members" shall mean only those members of the Board of Directors that
would qualify as "Independent directors" within
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the
meaning of NASDAQ Marketplace Rule 4200(a)(15) (or any successor provision),
whether or not applicable, including the requirements in clauses (C) through (G)
thereof (or any successor provisions), with respect to the Company and each
Interested Stockholder and each Affiliate and each Associate of each Interested
Stockholder; provided, that in no
event shall a Disinterested Board Member include any member (1) elected by the
holders of Class B Common Stock pursuant to Clause (b)(i)(B)(1) of this Article
FOURTH or (2) who is an Interested Stockholder or an Affiliate or Associate of
an Interested Stockholder (as such terms are defined in Clause (b) of Article
EIGHTH).
(D) As
promptly as practicable following the surrender by a holder of a certificate
representing shares of Class B Common Stock to be converted pursuant to Clause
(b)(viii)(A) of this Article FOURTH or a certificate formerly representing
shares of Class B Common Stock that have been converted pursuant to Clause
(b)(viii)(B) or (C) of this Article FOURTH, and the payment in cash of any
amount required by the provisions of Clause (b)(viii)(G) of this Article FOURTH,
the Corporation shall deliver or cause to be delivered at the office of the
transfer agent a certificate or certificates representing the number of shares
of Class A Common Stock issuable upon such conversion, issued in such name or
names as such holder may direct. Such conversion shall be deemed to
have been effected (1) immediately prior to the close of business of the
Corporation on the date of the surrender of the certificate or certificates
representing shares of Class B Common Stock in the case of a conversion under
Clause (b)(viii)(A) of this Article FOURTH, (2) immediately prior to the close
of business of the Corporation on the date of Transfer in the case of an
automatic conversion under Clause (b)(viii)(B) of this Article FOURTH and (3)
immediately prior to the close of business of the Corporation on the date of the
determination by the Board of Directors in the case of conversion under Clause
(b)(viii)(C) of this Article FOURTH. At the close of business of the
Corporation on the date any such conversion is made or deemed to be effected,
except as otherwise provided herein all rights of the holder of such shares of
Class B Common Stock as a holder thereof shall cease, and the person or persons
in whose name or names the certificate or certificates representing the shares
of Class A Common Stock are to be issued shall be treated for all purposes as
having become the record holder or holders of such shares of Class A Common
Stock as of such date; provided, however, that if any
such conversion is made or deemed to be effected on any date when the stock
transfer books of the Corporation shall be closed, the person or persons in
whose name or names the certificate or certificates representing shares of Class
A Common Stock are to be issued shall be deemed the record holder or holders
thereof for all purposes upon the opening of business of the Corporation on the
next succeeding day on which the stock transfer books are open.
(E) In
the event of a recapitalization, reorganization, reclassification or other event
as a result of which the shares of Class A Common Stock are exchanged for or
converted into other stock or securities, cash and/or any other property, then a
holder of Class B Common Stock shall be entitled to receive upon conversion the
same kind and amount of such stock, security, cash and/or other property that
such holder would have received if such conversion had occurred immediately
prior to the record date or effective date of such event.
(F) No
adjustments in respect of dividends (other than dividends paid in stock or
securities of the Corporation) shall be made upon the conversion of any shares
of
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Class B
Common Stock except as otherwise provided herein; provided, however, that if a
share of Class B Common Stock shall be converted subsequent to the record date
for the payment of a dividend or other distribution on shares of Class B Common
Stock but prior to such payment, then the registered holder of such share at the
close of business on such record date shall be entitled to receive the dividend
or other distribution payable on such shares on such date notwithstanding the
conversion thereof or the default in payment of the dividend or distribution due
on such date.
(G) The
issuance of certificates for shares of Class A Common Stock upon conversion of
Class B Common Stock and/or exchange of Membership Units pursuant to the
Exchange Agreement shall be made without charge to the holders of such shares
for any transfer or other similar tax in respect of such issuance; provided, however, that if any
such certificate is to be issued in a name other than that of the holder of the
share or shares of Class B Common Stock converted and/or Membership Units
exchanged, then the person or persons requesting the issuance thereof shall pay
to the Corporation the amount of any tax that may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction of the
Corporation that such tax has been paid or is not payable.
(H) Shares
of Class B Common Stock that are converted into shares of Class A Common Stock
as provided herein shall be retired and not available for reissue by the
Corporation.
(c) PREFERRED
STOCK.
The Board
of Directors is hereby expressly granted authority from time to time to issue
Preferred Stock in one or more series and with respect to any such series,
subject to the terms and conditions of this Certificate of Incorporation, to fix
by resolution or resolutions the numbers of shares, designations, powers,
preferences and relative, participating, optional or other special rights of
such series and any qualifications, limitations or restrictions thereof,
including but without limiting the generality of the foregoing, the
following:
(i) entitling
the holders thereof to cumulative, non-cumulative or partially cumulative
dividends, or to no dividends;
(ii) entitling
the holders thereof to receive dividends payable on a parity with, junior to, or
in preference to, the dividends payable on any other class or series of capital
stock of the Corporation;
(iii) entitling
the holders thereof to rights upon the voluntary or involuntary liquidation,
dissolution or winding up of, or upon any other distribution of the assets of,
the Corporation, on a parity with, junior to or in preference to, the rights of
any other class or series of capital stock of the Corporation;
(iv) providing
for the conversion or exchange, at the option of the holder or of the
Corporation or both, or upon the happening of a specified event, of the shares
of Preferred Stock into shares of any other class or classes or series of
capital stock of the Corporation or of
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any
series of the same or any other class or classes, including provision for
adjustment of the conversion or exchange rate in such events as the Board of
Directors shall determine, or providing for no conversion;
(v) providing
for the redemption, in whole or in part, of the shares of Preferred Stock at the
option of the Corporation or the holder thereof, or upon the happening of a
specified event, in cash, bonds or other property, at such price or prices
(which amount may vary under different conditions and at different redemption
dates), within such period or periods, and under such conditions as the Board of
Directors shall so provide, including provisions for the creation of a sinking
fund for the redemption thereof, or providing for no redemption;
(vi) providing
for voting rights or having limited voting rights or enjoying general, special
or multiple voting rights; and
(vii) specifying
the number of shares constituting that series and the distinctive designation of
that series.
FIFTH: REMOVAL
OF DIRECTORS
(a) REMOVAL
FOR CAUSE.
Any
director may be removed from office for cause by the affirmative vote of a
majority of the voting power of the outstanding shares of Class A Common Stock
and Class B Common Stock (and any series of Preferred Stock then entitled to
vote at an election of directors), voting together as one class.
(b) CLASS
B COMMON REMOVAL WITHOUT CAUSE.
Any
director elected by the vote of the holders of Class B Common Stock voting
separately as a class may be removed from office at any time, without cause,
solely by the affirmative vote of a majority of the voting power of the
outstanding shares of Class B Common Stock, voting as a separate
class.
(c) CLASS
A COMMON REMOVAL WITHOUT CAUSE.
Any
director elected by the vote of the holders of Class A Common Stock voting
separately as a class (or if any holders of Preferred Stock are entitled to vote
thereon together with the holders of Class A Common Stock, as one class with
such holders of Preferred Stock) may be removed from office at any time, without
cause, solely by the affirmative vote of a majority of the voting power of the
outstanding shares of Class A Common Stock, voting separately as a class (or if
any holders of Preferred Stock are entitled to vote thereon together with the
holders of Class A Common Stock, as one class with such holders of Preferred
Stock).
SIXTH: BYLAWS
11
The Board
of Directors may from time to time adopt, make, amend, supplement or repeal the
Bylaws, except as provided in this Certificate of Incorporation or in the
Bylaws. Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
SEVENTH: DIRECTOR
EXCULPATION
No
director of the Corporation shall have any personal liability to the Corporation
or its stockholders for monetary damages for any breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL as the same exists or hereafter may be
amended. No amendment, alteration or repeal of this Article SEVENTH shall
eliminate or reduce the effect thereof in respect of any matter occurring, or
any cause of action, suit or claim that, but for this Article SEVENTH would
accrue or arise, prior to such amendment, alteration or repeal.
EIGHTH: CERTAIN
BUSINESS COMBINATIONS
(a) REQUIREMENTS
TO EFFECT CERTAIN BUSINESS COMBINATIONS.
In
addition to any affirmative vote required by law or this Certificate of
Incorporation or the Bylaws, a Business Combination (as hereinafter defined)
involving as a party, or proposed by or on behalf of, an Interested Stockholder
(as hereinafter defined) or an Affiliate (as hereinafter defined) or Associate
(as hereinafter defined) of an Interested Stockholder or a person who upon
consummation of such Business Combination would become an Affiliate or Associate
of an Interested Stockholder shall, except as otherwise prohibited by applicable
law, as in effect from time to time, require both of the following conditions to
be satisfied:
(i) a
majority of the Continuing Directors (as hereinafter defined) shall have
determined (after consultation with their outside legal and financial advisors)
that such Business Combination, including without limitation, the consideration
to be received in connection therewith, is fair to the Corporation and its
stockholders (other than any stockholder that is an Interested Stockholder in
respect of such Business Combination and the Affiliates and Associates (if any)
of such Interested Stockholder); and
(ii) holders
of not less than a majority of the votes entitled to be cast by the holders of
all of the then outstanding shares of Voting Stock (as hereinafter defined),
voting together as a single class, excluding Voting Stock Beneficially Owned (as
hereinafter defined) by any Interested Stockholder or any Affiliate or Associate
of such Interested Stockholder, shall have approved such
transaction. Such affirmative vote shall be required notwithstanding
the fact that no vote may be required, or that a lesser percentage affirmative
vote, or the vote of any other class of stockholders, may otherwise be required,
by law or otherwise.
(b) CERTAIN
DEFINED TERMS.
For
purposes of this Article EIGHTH, the following definitions shall
apply:
12
(i) "Business
Combination" shall mean:
(A) any
merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (A) any Interested Stockholder or (B) any other company (whether
or not itself an Interested Stockholder) which is or after such merger or
consolidation would be an Affiliate or Associate of an Interested Stockholder;
or
(B) any
(1) sale, lease, exchange, mortgage, pledge, transfer or other disposition or
hypothecation of assets of the Corporation or of any Subsidiary (whether or not
in connection with the dissolution of the Corporation) to or for the benefit of,
or (2) purchase by the Corporation or any Subsidiary from, or (3) issuance by
the Corporation or any Subsidiary of securities to, or (4) investment, loan,
advance, guarantee, participation or other extension of credit by the
Corporation or any Subsidiary to, from, in or with or (5) establishment of a
partnership, joint venture or other joint enterprise with or for the benefit of,
in each case, any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder which transaction, alone or taken together with any
related transaction or transactions, has an aggregate fair market value and/or
involves aggregate commitments of $50,000,000 or more or any arrangement,
whether as employee, consultant or otherwise (other than service as a director),
pursuant to which any Interested Stockholder or any Affiliate or Associate
thereof shall, directly or indirectly, attain any control over or responsibility
for the management of any aspect of the business or affairs of the Corporation
or any Subsidiary which involves assets which have an aggregate fair market
value of $50,000,000 or more; or
(C) any
(1) reclassification of securities (including any reverse stock split), or (2)
recapitalization of the Corporation (including any change to or exchange of
securities of the Corporation), or (3) merger or consolidation of the
Corporation with any of its Subsidiaries or (4) other transaction (whether or
not with or otherwise involving as a party an Interested Stockholder) that, in
each case, has the effect, directly or indirectly, of increasing the
proportionate share of any class or series of capital stock, or any securities
convertible into or exchangeable for capital stock or other equity securities,
of the Corporation or any Subsidiary Beneficially Owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder;
or
(D) any
agreement, contract or other arrangement providing for any one or more of the
actions specified in the foregoing Clauses (b)(i)(A), (b)(i)(B) and (b)(i)(C) of
this Article EIGHTH.
Notwithstanding
anything to the contrary in this Certificate of Incorporation, in no event shall
a "Business Combination" include any exchange of Membership Units pursuant to
the Exchange Agreement, any other transaction expressly contemplated by the
Joint Plan (including, without limitation, the issuance of any securities
pursuant thereto, including securities issued or issuable from time to time upon
exercise, conversion or exchange thereof, and the payment of specified fees and
expenses, and the assumption and performance of any executory contracts,
thereunder) or any conversion of Class B Common Stock into Class A Common Stock
under Clause (b)(viii) of Article FOURTH of this Certificate of
Incorporation.
13
(ii) "Affiliate"
in respect of a person shall mean any person (other than an Exempt Person)
controlling, controlled by or under common control with such
person.
(iii) "Associate"
in respect of an individual shall mean (A) any corporation or other organization
of which such person is an officer or partner or otherwise participates in a
material way in the management or policy-making thereof or is the Beneficial
Owner of ten percent (10%) or more of any class of voting equity security, (B)
any trust or other estate in which such person has a substantial beneficial
interest or as to which such person serves as a trustee or in a similar
fiduciary capacity and (C) any parent or lineal descendant of such person or the
spouse of such person or any relative of such person who has the same home as
such person or who is a director, officer, partner, limited liability company
member, trustee or other fiduciary of any organization of which such person is
also a director, officer, partner, limited liability company member, trustee or
other fiduciary or substantial beneficiary. The term "Associate" in respect of
any company means (A) any director, officer or trustee of such company or in the
case of a limited liability company any manager or managing member or in the
case of a partnership any general partner, (B) any other person who participates
in a material way in the management or policy-making of such company and (C) any
person who is the Beneficial Owner of ten percent (10%) or more of any class of
equity security of such company. In no event shall an "Associate"
include an Exempt Person.
(iv) A
person shall be a "Beneficial Owner" of any capital stock or other securities of
the Corporation: (A) which such person or any of its Affiliates or Associates
owns or has the economic benefit of ownership of, directly or indirectly; (B)
which such person or any of its Affiliates or Associates has, directly or
indirectly, (1) the right to acquire (whether such right is exercisable
immediately or subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (2) the right to vote pursuant to
any agreement, arrangement or understanding; or (C) which any other person with
which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock, owns or has the economic benefit of
ownership of. For the purposes of determining whether a person is an
"Interested Stockholder", the number of shares of capital stock of the
Corporation deemed to be outstanding shall include shares deemed beneficially
owned by such person through application of this Clause (b)(iii) of this Article
EIGHTH, but shall not include any other shares of capital stock that may be
issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(v) "Continuing
Director" with respect to an Interested Stockholder shall mean any member of the
Board of Directors (while such person is a member of the Board of Directors) who
is not an Affiliate or Associate or representative of such Interested
Stockholder (including any person nominated to the Board of Directors by such
Interested Stockholder or an Affiliate or Associate of such Interested
Stockholder).
(vi) "Interested
Stockholder" shall mean any person (other than (A) the Corporation or any
Subsidiary, (B) any profit-sharing, employee stock ownership or other employee
benefit plan of the Corporation or any Subsidiary or (C) any trustee or
fiduciary with
14
respect
to any such plan or holding Voting Stock for the purpose of funding any such
plan or funding other employee benefits for employees of the Corporation or any
Subsidiary when acting in such capacity (the persons and entities described in
the foregoing clauses (A)-(C) being referred to herein as "Exempt Persons")) who
is, or has announced or publicly disclosed a plan or intention to become, the
Beneficial Owner of Voting Stock representing ten percent (10%) or more of the
votes entitled to be cast by the holders of all then outstanding shares of
Voting Stock.
(vii) "Subsidiary"
shall mean any corporation, partnership, joint venture or other legal entity of
which the Corporation (either alone or through or together with any other
Subsidiary), owns, directly or indirectly, more than 50% of the stock or other
equity interests, has the power to elect a majority of the board of directors or
similar governing body, or has the power to direct the business and
policies.
(viii) "Voting
Stock" shall mean all shares of capital stock of the Corporation entitled
generally to vote on the election of any director of the Corporation (without
reference to any terms of any Preferred Stock providing for special voting
rights or restrictions with respect to particular matters), including, without
limitation, shares of Class A Common Stock and shares of Class B Common
Stock.
(c) CERTAIN
DETERMINATIONS.
A
majority of the Continuing Directors shall have the power and duty to determine
for the purposes of this Article EIGHTH, on the basis of information known to
them after reasonable inquiry, all questions arising under this Article EIGHTH,
including without limitation, (i) whether a person is an Interested Stockholder,
(ii) the number of shares of capital stock or other securities Beneficially
Owned by any person, (iii) whether a person is an Affiliate or Associate of
another person, (iv) whether a Business Combination is proposed by or on behalf
of an Interested Stockholder or an Affiliate or Associate of an Interested
Stockholder or a person who upon consummation of such Business Combination would
become an Affiliate or Associate of such Interested Stockholder, (v) whether the
assets that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate fair
market value of $50,000,000 or more, and (vi) the application of any other term
used in this Article EIGHTH. Any such determination made in good
faith shall be binding and conclusive on the Corporation, all of its
stockholders and all other parties.
|
(d)
|
AMENDMENT
OF THIS ARTICLE.
|
Notwithstanding
anything to the contrary in this Certificate of Incorporation, and in addition
to the requirements of Clauses (b)(i)(C) and (b)(i)(D) of Article FOURTH, any
proposal to alter, amend or repeal, or to adopt any provision inconsistent with,
this Article EIGHTH, including in each case by merger, consolidation or
otherwise, shall require the affirmative vote of the holders of not less than a
majority of the votes entitled to be cast by the holders of all of the then
outstanding shares of Voting Stock, voting together as a single class, excluding
Voting Stock beneficially owned by any Interested Stockholder.
15
NINTH: TRADING
RESTRICTIONS
(a) RIGHT
TO IMPOSE TRADING RESTRICTIONS
(i) In
the event that both (1) the Equity Value (as hereinafter defined) of the
Corporation has decreased by at least 35% (such equity value, the “Trigger
Price”) from the Emergence Date Equity Value (as hereinafter defined) and (2) an “owner
shift” of at least 25 percentage points has occurred during the relevant
“testing period” with respect to the Corporation’s equity for purposes of
Section 382 of the Internal Revenue Code of 1986, as amended, and the Treasury
regulations thereunder (collectively, “Section 382”), as reasonably determined
by the Corporation (in consultation with outside counsel) in accordance with
Section 382 (Clauses (a)(i)(1) and (a)(i)(2) of this Article NINTH are
collectively referred to herein as the “Trigger Provisions”), then the Board of
Directors shall meet on an expedited basis to determine whether to impose
restrictions on the trading of the Corporation’s stock in accordance with this
Article NINTH and to determine the specific terms of such
restrictions. Unless otherwise defined herein, all terms used in this
Article NINTH (including but not limited to “5% shareholder,” “testing period,”
“ownership change,” and “owner shift”) are intended to have the meanings
ascribed to them under Section 382 and shall be construed
accordingly.
(ii) The
Board of Directors’ ability to impose trading restrictions pursuant to this
Article NINTH shall terminate on the fifth anniversary of the Emergence Date (as
hereinafter defined); provided, however, that any trading restrictions imposed
by the Board of Directors pursuant to this Article NINTH prior to such fifth
anniversary shall remain in full force and effect until the Trigger Provisions
are no longer satisfied.
(b) CERTAIN
DEFINED TERMS
(i) “Emergence
Date Equity Value” shall mean the Corporation’s equity value on the date on
which the Corporation emerges from chapter 11 bankruptcy protection (the
“Emergence Date”), which equity value the Corporation shall announce via press
release and the filing of a Current Report on Form 8-K with the Securities and
Exchange Commission promptly after it is determined, but in no event later than
thirty (30) days after the Emergence Date. Such equity
value shall be determined by the Corporation in good faith based on the
valuation of the Corporation’s total enterprise as determined and approved in
connection with the Joint Plan.
(ii) “Equity
Value” as of any date shall mean the Corporation’s then equity value (adjusted
for any extraordinary dividends, as determined in good faith by the Board of
Directors) calculated as follows: (1) for any class of stock that is
publicly traded for at least 20 trading days prior to such determination, the
value determined using the volume-weighted average trading price of such stock
for each trading day during the previous 20 trading days, plus (2) for any class
of stock that is not publicly traded for at least 20 trading days prior to such
determination, the fair market value of such stock, as reasonably determined by
the Board of Directors after consultation with an investment banking firm of
nationally recognized standing.
(c) PROCEDURE
TO IMPOSE TRADING RESTRICTIONS
16
Except as
provided in this Article NINTH, after the Emergence Date, the Corporation shall
not impose any trading restrictions on transfers of the Corporation’s
stock.
If the
Board of Directors determines to impose trading restrictions on transfers of the
Corporation’s stock pursuant to this Article NINTH, which shall require the
affirmative vote of at least two thirds (2/3) of all directors, then the
Corporation shall promptly announce the imposition and terms of such trading
restrictions by means of a press release and the filing of a Current Report on
Form 8-K with the Securities and Exchange Commission. The terms of
such restrictions, including the form of any notice or application documentation
that may be associated with such restrictions, shall also be described by the
Corporation in each quarterly and annual report filed by the Corporation with
the Securities and Exchange Commission.
(d) PRINCIPAL
TERMS OF TRADING RESTRICTIONS
If the
Board of Directors determines to impose trading restrictions on transfers of the
Corporation’s stock in accordance with this Article NINTH, the principal terms
of such trading restrictions shall be the terms set forth in this Clause (d) of
Article NINTH. The Board of Directors shall have the authority in its
sole discretion to determine and establish the definitive and ancillary terms of
such trading restrictions so long as such terms are consistent with the
following provisions of this Article NINTH:
(i) Any
acquisition of the Corporation’s stock by a person or entity that is not a 5%
shareholder of the Corporation will be null and void ab initio as to the
purchaser to the extent such acquisition causes such person or entity to become
a 5% shareholder of the Corporation unless the acquisition of such stock (1) was
previously approved in writing by the Board of Directors, (2) is a Permitted
Acquisition or (3) is covered by Clause (d)(v) of this Article
NINTH. “Permitted Acquisition” shall mean an acquisition that will
not result in an increase in an “owner shift” for purposes of Section 382 in
excess of any “owner shift” that would have occurred if the seller had sold the
same amount of stock through general public market transactions (e.g., because
the stock is purchased from another 5% shareholder whose stock acquisition had
caused an owner shift).
(ii) Any
acquisition of the Corporation’s stock by a 5% shareholder of the Corporation
will be null and void ab initio as to the purchaser unless the acquisition of
such stock (1) was previously approved in writing by the Corporation’s Board of
Directors, (2) is a Permitted Acquisition or (3) is covered by Clause (d)(v) of
this Article NINTH.
(iii) Any
person or entity seeking to use the “Permitted Acquisition” exception in the
case of Clause (d)(i) or (d)(ii) of this Article NINTH shall either (1)
contemporaneously with such transaction, notify the Corporation in writing of
such transaction, represent in writing to the Corporation that such transaction
is a Permitted Acquisition, and acknowledge in writing that if such transaction
is not a Permitted Acquisition such person or entity will be subject to the
consequences set forth in this Article NINTH or (2) prior to such transaction,
notify the Corporation of its intent to engage in a Permitted Acquisition and
provide relevant factual information sufficient to establish that the
acquisition will qualify as a Permitted Acquisition, and within 10 business days
of such notice, the Corporation shall indicate whether such proposed transaction
will qualify as a Permitted Acquisition. For the avoidance of
doubt, any transaction
17
covered by Clause (d)(v)
of this Article NINTH shall not be subject to the restrictions and procedures of
this Article NINTH.
(iv) The
Corporation shall announce by press release and the filing of a Current Report
on Form 8-K with the Securities and Exchange Commission if its Board of
Directors determines that trading restrictions are no longer required or if the
Trigger Provisions are no longer satisfied; provided, however, that if trading
restrictions shall be imposed following a decline in the Corporation’s equity
value, any increase in the value of the Corporation’s stock shall not result in
the lapse of such trading restrictions unless such increase (determined using
the same methodology set forth in the definition of Equity Value above ) is at
least 10% greater than the Trigger Price.
(v) Notwithstanding
the foregoing, the Board of Directors shall have no authority pursuant to this
Article NINTH to restrict or otherwise limit in any manner (1) the disposition
of shares of capital stock of the Corporation by any stockholder of the
Corporation, (2) any issuance by the Corporation of Common Stock pursuant to the
Exchange Agreement or the CII Settlement Claim Warrants (as defined in the Joint
Plan), (3) any conversion of Class B Common Stock into Class A Common Stock, (4)
any distributions upon, or adjustments to, any Membership Units, Class B Common
Stock, or warrants (or any shares issuable upon exchange, conversion, or
exercise thereof) to which the holder of such interest is otherwise entitled, or
(5) any acquisition of Common Stock pursuant to clause (2), (3), or (4)
above.
(e) REQUIREMENT
TO PROVIDE INFORMATION REGARDING SHARE OWNERSHIP
All
stockholders of the Corporation that have filed or would be required to file a
Schedule 13D or 13G with the Securities and Exchange Commission with respect to
the Corporation shall be required to provide information to the Corporation
regarding such stockholder’s ownership of the Corporation’s stock, including the
dates of the acquisition and disposition of such stock and the amounts of such
acquisitions and dispositions, to the extent requested by the
Corporation. Such information shall be provided within five business
days of the Corporation’s request, and, at the stockholder’s request, the
Corporation shall execute a standard confidentiality agreement with respect to
such information.
TENTH: AMENDMENT,
ETC.
Subject
in each instance to Clauses (b)(i)(C), (b)(i)(D) and (b)(i)(E) of Article FOURTH
and Article EIGHTH of this Certificate of Incorporation, the Corporation
reserves the right at any time, and from time to time, to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter authorized by the laws of the State of
Delaware. All rights, preferences and privileges herein conferred are
granted subject to this reservation.
(Remainder
of this Page Intentionally Left Blank)
18
IN
WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation, which
restates, integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation, and which was duly made, executed and
acknowledged in accordance with Sections 242, 245 and 303 of the General
Corporation Law of the State of Delaware, has been signed on November 30,
2009.
CHARTER
COMMUNICATIONS, INC.
By: ____________________________
Name: Richard R.
Dykehouse
Title: Vice President,
Associate General
Counsel and Corporate
Secretary
19
EXHIBIT A
TERMS
OF
SERIES A
15% PAY-IN-KIND PREFERRED STOCK
OF
CHARTER
COMMUNICATIONS, INC.
20
POWERS,
PREFERENCES AND RIGHTS
OF
SERIES
A 15% PAY-IN-KIND PREFERRED STOCK
OF
CHARTER
COMMUNICATIONS, INC.
Charter
Communications, Inc. (the “Corporation”), a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the “DGCL”), pursuant to
the authority expressly granted to and vested in the Board of Directors of the
Corporation (the “Board of Directors”)
by the Amended and Restated Certificate of Incorporation of the Corporation (the
“Certificate of
Incorporation”), which authorizes the issuance, by the Corporation, of up
to 250,000,000 shares of preferred stock, par value $.001 per share (the “Preferred Stock”),
designates the Series A 15% Pay-in-Kind Preferred Stock of the Corporation
pursuant to Section 303 of the DGCL with the following powers, preferences and
rights (capitalized terms used herein but not defined in Section 1 through
Section 14 below have the meanings ascribed to them in Section 13):
Section
1. Designation. 5,520,001
shares of the Preferred Stock of the Corporation are hereby constituted as a
series of Preferred Stock, par value $.001 per share and with a liquidation
preference of $25 per share (the “Liquidation
Preference”), designated as “Series A 15% Pay-in-Kind Preferred Stock”
(the “Series A PIK
Preferred Stock”), no shares of which have been issued by the Corporation
prior to November 30, 2009 (the “Issue
Date”).
Section
2. Ranking. The
Series A PIK Preferred Stock shall rank senior as to dividends over the Common
Stock and any other series or class of the Corporation’s stock created after the
date hereof that by its terms ranks junior as to dividends to the Series A PIK
Preferred Stock, when and if issued (“Junior Dividend
Stock”), and senior as to distributions of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
over the Common Stock and any other series or class of the Corporation’s stock
issued after the date hereof that by its terms ranks junior as to liquidation,
dissolution and winding up to the Series A PIK Preferred Stock, when and if
issued (“Junior
Liquidation Stock”). The Common Stock and any other series or
class of the Corporation’s stock that is both Junior Dividend Stock and Junior
Liquidation Stock is referred to herein as “Junior
Stock”. The Series A PIK Preferred Stock shall be junior as to
dividends to any series or class of the Corporation’s stock issued after the
date hereof that by its terms ranks senior as to dividends to the Series A PIK
Preferred Stock, when and if issued (“Senior Dividend
Stock”), and junior as to distributions of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
to any series or class of the Corporation’s stock issued after the date hereof
that by its terms ranks senior as to liquidation, dissolution and winding up to
the Series A PIK Preferred Stock, when and if issued (“Senior Liquidation
Stock” and collectively with the Senior Dividend Stock, “Senior
Stock”). The Series A PIK Preferred Stock shall rank pari
passu with respect to dividends with any series or class of the Corporation’s
stock issued after the date hereof that by its terms ranks pari passu as to
dividends with the Series A PIK Preferred Stock, when and if issued (“Parity Dividend
Stock”), and pari passu as to distributions of assets upon liquidation,
dissolution
or winding up of the Corporation, whether voluntary or involuntary, to any
series or class of the Corporation’s stock issued after the date hereof that by
its terms ranks pari passu as to liquidation, dissolution and winding up with
the Series A PIK Preferred Stock, when and if issued (“Parity Liquidation
Stock” and collectively with the Parity Dividend Stock, “Parity
Stock”).
Section
3. Dividends.
(a) Each
holder of Series A PIK Preferred Stock shall be entitled to receive dividends
when, as and if declared by the Board of Directors or a duly authorized
committee thereof out of funds of the Corporation legally available therefor, at
an annual rate equal to the Applicable Dividend Rate on the Liquidation
Preference of Series A PIK Preferred Stock (the “Annual Dividend
Amount”), payable at the option of the Corporation (i) through the
issuance of additional shares of Series A PIK Preferred Stock having an
aggregate Liquidation Preference equal to the amount of the dividend to be paid,
(ii) in cash, or (iii) in a combination of (i) and (ii) above. Such
dividends shall be cumulative and shall accrue (whether or not earned or
declared, whether or not there are funds legally available for the payment
thereof and whether or not restricted by the terms of any of the Corporation’s
indebtedness outstanding at any time) from the date such shares are issued and
shall be payable semi-annually in arrears on January 15 and July 15 of each year
(each, a “Dividend
Payment Date”) commencing January 15, 2010. The Series A PIK
Preferred Stock paid as dividends shall have all rights granted hereunder,
including the payment of dividends. The Corporation shall elect the
form of such payment by giving notice at least 15 days prior to the applicable
Dividend Payment Date. The first such notice may indicate the form of
payment for all future dividend payments, subject to later modifications by the
Corporation. If no notice is given, the Corporation shall be deemed
to have elected a payment through the issuance of shares of Series A Preferred
Stock.
(b) The
dividend payment period for any dividend payable on a Dividend Payment Date
shall be the period beginning on the immediately preceding Dividend Payment Date
(or on the Issue Date in the case of the first dividend payment period) and
ending on the day preceding such applicable Dividend Payment Date. If
any date on which a payment of a dividend or any other amount is due in respect
of the Series A PIK Preferred Stock is not a Business Day, such payment shall be
made on the next day that is a Business Day.
(c) The
amount of dividends payable per share of Series A PIK Preferred Stock for each
dividend payment period will be computed by dividing the Annual Dividend Amount
by two; provided, however, that the
amount of dividends payable for the first dividend payment period and for any
dividend payment period shorter than a full semi-annual dividend period will be
computed on the basis of a 360-day year of twelve 30-day months. All
dividends paid in additional shares of Series A PIK Preferred Stock shall be
deemed issued on the applicable Dividend Payment Date and will thereupon be duly
authorized, validly issued, fully paid and nonassessable and free and clear of
all liens, charges and other encumbrances created by the
Corporation.
(d) Dividends
payable on any Dividend Payment Date shall be payable to the holders of record
of the Series A PIK Preferred Stock as they appear on the stock transfer books
of the Corporation at the close of business on the first day of the calendar
month in which the related
2
Dividend
Payment Date falls, or such other date that the Board of Directors designates
that is not more than 30 nor less than 10 days prior to the Dividend Payment
Date. Dividends paid on the shares of Series A PIK Preferred Stock in
an amount less than accumulated and unpaid dividends payable thereon shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding.
(e) In order
to pay dividends on any Dividend Payment Date, or such other date as is fixed by
the Board of Directors or a duly authorized committee thereof pursuant to the
terms and conditions set forth in Section 3(f) hereof, in shares of Series A PIK
Preferred Stock, the shares of Series A PIK Preferred Stock to be paid as a
dividend shall have been duly authorized, validly issued, fully paid and
non-assessable.
(f) Accrued
but unpaid dividends for any past dividend periods not paid on the relevant
Dividend Payment Date may be declared by the Board of Directors and paid on any
date fixed by the Board of Directors, whether or not a regular Dividend Payment
Date, to Holders of record on the books of the Corporation on such record date
as may be fixed by the Board of Directors, which record date shall be no more
than 60 days prior to the payment date thereof.
Section
4. Optional and Mandatory
Redemption. The
Corporation may redeem the Series A PIK Preferred Stock in whole or in part on
at least 15 days prior written notice (of the anticipated date of redemption,
which notice shall not obligate the Corporation to redeem any Series A Preferred
Stock) to each holder of record if the Board of Directors approves such
redemption, payable at the Corporation’s option (i) in cash; (ii) through the
issuance of shares of Common Stock; or (iii) in a combination of (i) and (ii)
above (the “Redemption
Payment”) based on the provisions set forth below; provided, however, that any
Redemption Payment made during the first six months following the Issue Date
shall be payable solely in cash. All outstanding shares of the Series
A PIK Preferred Stock shall be mandatorily redeemed by the Corporation on the
fifth anniversary of the Issue Date, and the Corporation shall pay the
Redemption Payment based on the provisions set forth below.
(a) Common Stock
Redemption. If the Corporation elects to pay the optional or
mandatory Redemption Payment, in whole or in part, in shares of Common Stock,
the number of shares of Common Stock to be delivered by the Corporation with
respect to the shares of Series A PIK Preferred Stock being redeemed in shares
of Common Stock, shall be equal to (1) the Liquidation Preference of the shares
being redeemed and any other accrued and unpaid dividends whether or not
declared (the “Accreted Value”),
divided by (2) the Market Price of a share of Common
Stock. Notwithstanding the foregoing, in no event shall any
Redemption Payment made in shares of Common Stock exceed 20% of the total fully
diluted Common Stock of the Corporation at the time of such Redemption
Payment.
(b) Cash
Redemption. If the Corporation elects to pay the optional or
mandatory Redemption Payment, in whole or in part, in cash, the amount of cash
payable with respect to the Series A PIK Preferred Stock being redeemed in cash
shall be the Accreted Value of the shares of Series A PIK Preferred Stock being
redeemed in cash.
If the
Corporation elects to deliver Common Stock in payment, in whole or in part, of
the optional or mandatory Redemption Payment, the Corporation will, at its
option (i) pay cash
3
based on
the Market Price for all fractional shares of Common Stock, or (ii) pay any
fractional shares of Common Stock by delivery of a whole share of Common
Stock.
Section
5. Procedure For
Redemption.
(a) In the
event of redemption of the Series A PIK Preferred Stock pursuant to Section 4, notice of
such redemption shall be given by hand or by nationally recognized “overnight
courier” for delivery at the earliest time offered by such overnight courier
(which may not necessarily be the next day) to each holder of record of the
shares to be redeemed at such holder’s address as the same appears on the stock
transfer books of the Corporation at least 15 but not more than 60 days before
the date fixed for redemption, provided, however, that no
failure to give such notice nor any defect therein shall affect the validity of
the redemption of any share of Series A PIK Preferred Stock to be redeemed
except as to the holder to whom the Corporation has failed to give said notice
or except as to the holder whose notice was defective. Each such
notice shall state: (i) the redemption date; (ii) the number of
shares of Series A PIK Preferred Stock to be redeemed and, if less than all the
shares held by such holder are to be redeemed, the number of shares to be
redeemed from such holder; (iii) the Redemption Payment (including the method of
payment (i.e., cash, Common Stock or a combination thereof)), as applicable;
(iv) if not all of the shares of the Series A PIK Preferred Stock are held
through the Depository Trust Company (“DTC”), the place or
places where certificates for such shares are to be surrendered for payment of
the Redemption Payment, as applicable; (v) the specific provision hereof
pursuant to which such redemption is to be made; and (vi) that dividends on the
shares to be redeemed will cease to accrue on such redemption
date. Each such notice shall be effective upon delivery if given by
hand or upon deposit with a nationally recognized overnight courier if given by
such a courier.
(b) Notice
having been given as aforesaid, from and after the redemption date (unless
default shall be made by the Corporation in providing money or shares of Common
Stock for the payment of the Redemption Payment of the shares called for
redemption), dividends on the shares of Series A PIK Preferred Stock called for
redemption shall cease to accrue, and such shares shall no longer be deemed to
be outstanding and shall have the status of authorized but unissued shares of
Series A PIK Preferred Stock, unclassified as to series, and shall not be
reissued as shares of Series A PIK Preferred Stock, and all rights of the
holders thereof attendant to their ownership of Series A PIK Preferred Stock as
stockholders of the Corporation (except the right to receive from the
Corporation the Redemption Payment) shall cease. Upon surrender in
accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall require and the notice shall so state), such shares shall be
redeemed by the Corporation, and the Corporation shall make the required
Redemption Payment.
(c) If a
notice of redemption shall have been given, and if, prior to the redemption
date, the Corporation shall have irrevocably deposited the aggregate Redemption
Payment of the shares of Series A PIK Preferred Stock to be redeemed in trust
for the pro rata benefit of the holders of the shares of Series A PIK Preferred
Stock to be redeemed, so as to be and to continue to be available therefor, with
a bank or trust company that is organized under the laws of the United States of
America or any state thereof, has capital and surplus of not less than
$250,000,000 and has, or, if it has no publicly traded debt securities rated by
a nationally recognized rating agency, is the subsidiary of a bank holding
company that has, publicly traded
4
debt
securities rated at least “A” or the equivalent thereof by Standard & Poor’s
Corporation or “A-2” or the equivalent by Moody’s Investor Service Inc., then
upon making such deposit, all rights of holders of the shares so called for
redemption shall cease, except (i) as otherwise set forth herein and (ii) for
the right of holders of such shares to receive the Redemption Payment against
delivery of such shares, but without interest after the actual redemption date,
and such shares shall cease to be outstanding. Any funds so deposited
that are unclaimed by holders of shares at the end of three years from such
redemption date shall be repaid to the Corporation upon its request, after which
repayment the holders of shares of Series A PIK Preferred Stock so called for
redemption shall thereafter be entitled to look only to the Corporation for
payment of the Redemption Payment.
Section
6. No Conversion or Exchange
Rights.
The
holders of the shares of the Series A PIK Preferred Stock shall not have any
right to convert such shares into or exchange such shares for any other class or
series of stock or obligations of the Corporation.
Section
7. Liquidation
Rights.
(a) In the
case of the liquidation, bankruptcy, dissolution or winding up of the
Corporation, in each case, whether voluntary or involuntary, holders of
outstanding shares of Series A PIK Preferred Stock shall be entitled to receive,
from the net assets of the Corporation available for distribution to
stockholders, an amount in cash equal to the Liquidation Preference, plus any
accrued and unpaid dividends to the payment date, as set forth herein, before
any payment or distribution is made to the holders of Common Stock or any other
Junior Liquidation Stock, but the holders of the shares of the Series A PIK
Preferred Stock will not be entitled to receive the liquidation preference of
such shares until the liquidation preference of any Senior Liquidation Stock has
been paid in full.
(b) The
holders of Series A PIK Preferred Stock and any Parity Liquidation Stock shall
share ratably in any liquidation, distribution or winding up of the Corporation
(after payment of the liquidation preference of the Senior Liquidation Stock) in
which the net assets or the proceeds thereof are not sufficient to pay in full
the aggregate of the amounts payable thereon, in the same ratio that the
respective amounts which would be payable on such distribution if the amounts to
which the holders of all the outstanding shares of Series A PIK Preferred Stock
and Parity Liquidation Stock are entitled were paid in full, bear to each
other.
(c) A Change
of Control, as defined below, shall be considered a liquidation, dissolution or
winding up of the Corporation for the purpose of this Section 7; provided that the
Corporation shall be able to pay the Liquidation Preference, plus any accrued
and unpaid dividends to the payment date, by making a Redemption Payment, and
such Redemption Payment shall be made pursuant to the procedures set forth in
Section 4 hereof. For purposes hereof, a “Change of Control”
shall mean (i) a sale or transfer of all or substantially all of the
Corporation’s property or assets or (ii) a consolidation or merger of the
Corporation with another corporation, other than a consolidation or merger in
which the capital stock of the Corporation outstanding immediately prior to such
consolidation or merger is converted into or exchanged for capital stock of the
surviving or transferee Person constituting a majority of the outstanding voting
power of such surviving or transferee Person immediately after giving effect to
such consolidation or merger.
5
Section
8. Additional Classes or Series
of Stock.
The Board
of Directors shall have the right at any time in the future to authorize, create
and issue, by resolution or resolutions, one or more additional classes or
series of stock of the Corporation, and to determine and fix the distinguishing
characteristics and the relative rights, preferences, privileges and other terms
of the shares thereof. Any such class or series of stock may rank
prior to or on a parity with or junior to the Series A PIK Preferred Stock as to
dividends or upon liquidation or otherwise.
Section
9. Voting Rights;
Amendments.
(a) Holders
of Series A PIK Preferred Stock shall vote together with holders of shares of
Common Stock as a single class and not as a separate class on all matters on
which the holders of shares of Common Stock are entitled to vote pursuant to the
DGCL. In connection with all such matters, each share of Series A PIK
Preferred Stock shall be entitled to 25/1000 (or 0.025) votes per
share.
(b) So long
as any Series A PIK Preferred Stock is outstanding, in addition to any other
vote of stockholders of the Corporation required under applicable law or the
Certificate of Incorporation, the affirmative vote or consent of the holders of
at least 50.1% of the outstanding shares of the Series A PIK Preferred Stock
will be required for any amendment of the Certificate of Incorporation if the
amendment would specifically alter or change the powers, preferences or rights
of the shares of the Series A PIK Preferred Stock so as to affect them
adversely.
(c) Except as
set forth in this Section 9, the Series A PIK Preferred Stock shall not have any
other voting powers, either general or special.
Section
10. Registration, Transfer and
Exchanges. The
Corporation will keep with the registrar and transfer agent of the Series A PIK
Preferred Stock a register in which the Corporation will provide for the
registration and transfer of shares of Series A PIK Preferred
Stock. Any holder of shares of Series A PIK Preferred Stock may, at
its option, in person or by duly authorized attorney, surrender the certificate
representing the same for exchange at the registrar and transfer agent (duly
endorsed or accompanied, if so required by the Corporation, by a written
instrument of transfer duly executed by such holder or his or her duly
authorized attorney) and, within a reasonable time thereafter and without
expense (other than transfer taxes, if any), receive in exchange therefor one or
more duly executed certificate or certificates dated as of the date to which
dividends have been paid on the shares of Series A PIK Preferred Stock so
surrendered, or if no dividend has yet been so paid, then dated the date hereof,
and registered in such name or names, all as may be designated by such holder,
for the same aggregate number of shares of Series A PIK Preferred Stock as
represented by the certificate or certificates so surrendered. The
Corporation covenants and agrees to take and cause to be taken all action
reasonably necessary to effect such registrations, transfers and
exchanges. Each share of Series A PIK Preferred Stock issued in
exchange for any share shall carry the same rights to unpaid dividends and
redemption payments which were carried by the share so exchanged, so that
neither gain nor loss of any such right shall result from any such transfer or
exchange.
The
Corporation and any agent of the Corporation may treat the person in whose name
any share of Series A PIK Preferred Stock is registered as the owner of such
share for the
6
purpose
of receiving payment of dividends, and amounts payable on redemption and
liquidation in respect of such share and for all other
purposes.
Section
11. Form.
(a) The
Series A PIK Preferred Stock shall initially be issued in the form of one or
more permanent global shares of Preferred Stock in definitive, fully registered
form with the global legend (the “Global Shares
Legend”) as set forth on the form of Preferred Stock certificate attached
hereto as Exhibit A (each, a “Global Preferred
Share”), which is hereby incorporated in and expressly made a part of
this Certificate of Designation. The Global Preferred Share may have
notations, legends or endorsements required by law, stock exchange rules,
agreements to which the Corporation is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the
Corporation). The Global Preferred Share shall be deposited on behalf
of the holders of the Series A PIK Preferred Stock represented thereby with the
Registrar, at its New York office, as custodian for the Depositary, and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Corporation and countersigned and registered by the Registrar as
hereinafter provided. The aggregate number of shares represented by
each Global Preferred Share may from time to time be increased or decreased by
adjustments made on the records of the Registrar and the Depositary or its
nominee in a manner not inconsistent with this Certificate of
Designation. This Section 11 shall apply only to a Global Preferred
Share deposited with or on behalf of the Depositary. The Corporation
shall execute and the Registrar shall, in accordance with this Section 11,
countersign and deliver initially one or more Global Preferred Shares that (i)
shall be registered in the name of Cede & Co. or other nominee of the
Depositary and (ii) shall be delivered by the Registrar to Cede & Co., or be
delivered pursuant to instructions received from Cede & Co. or be held by
the Registrar as custodian for the Depositary pursuant to an agreement between
the Depositary and the Registrar. Members of, or participants in, the
Depositary (“Agent
Members”) shall have no rights under this Certificate of Designation with
respect to any Global Preferred Share held on their behalf by the Depositary or
by the Registrar as the custodian of the Depositary or under such Global
Preferred Share, and the Depositary may be treated by the Corporation, the
Registrar and any agent of the Corporation or the Registrar as the absolute
owner of such Global Preferred Share for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Corporation, the Registrar or any agent of the Corporation or the
Registrar from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of the Depositary
governing the exercise of the rights of a holder of a beneficial interest in any
Global Preferred Share. Unless otherwise required by applicable law,
owners of beneficial interests in Global Preferred Shares shall not be entitled
to receive physical delivery of certificated shares of Preferred Stock, unless
(x) the Depositary is unwilling or unable to continue as Depositary for the
Global Preferred Shares and the Corporation does not appoint a qualified
replacement for the Depositary within 90 days, (y) the Depositary ceases to be a
“clearing agency” registered under the Exchange Act of 1934, as amended, or (z)
the Corporation decides to discontinue the use of book-entry transfer through
the Depositary (or any successor Depositary). In any such case, the
Global Preferred Shares shall be exchanged in whole for definitive shares of
Series A PIK Preferred Stock in registered form, with the same terms and of an
equal aggregate Liquidation Preference. Definitive shares of
Preferred Stock shall be registered in the name or names of the Person or Person
specified by the Depositary. To the extent required by law, the
Corporation
7
will
issue Series A PIK Preferred Stock in certificate form to beneficial owners upon
their written request. Such certificates shall be substantially in
the form of Exhibit A hereto except for references to the Depositary and its
nominee, and may have such other modifications as deemed necessary or advisable
by the Corporation.
(b) (i) An
Officer shall sign the Global Preferred Shares for the Corporation, in
accordance with the Corporation’s bylaws and applicable law, by manual or
facsimile signature.
(ii) If an
Officer whose signature is on a Global Preferred Share no longer holds that
office at the time the Transfer Agent authenticates the Global Preferred Share,
the Global Preferred Share shall be valid nevertheless.
Section
12. Transfer Agent and
Registrar. The
duly appointed Transfer Agent and Registrar for the Series A PIK Preferred Stock
shall be BNY Mellon Shareowner Services. The Corporation may, in its
sole discretion, remove the Transfer Agent and Registrar in accordance with the
agreement between the Corporation and the Transfer Agent and Registrar; provided that the
Corporation shall appoint a successor transfer agent who shall accept such
appointment prior to the effectiveness of such removal.
Section
13. Definitions. The
following terms shall have the following meanings, terms defined in the singular
to have a correlative meaning when used in the plural and vice
versa:
“Applicable Dividend
Rate” means (i) 15% per annum from the Issue Date through the third
anniversary of the Issue Date, (ii) 17% per annum from the day immediately
following the third anniversary of the Issue Date through the fourth anniversary
of the Issue Date, and (iii) 19% per annum from the day immediately following
the fourth anniversary of the Issue Date through the fifth anniversary of the
Issue Date.
“Business Day” shall
mean any day other than a Saturday, Sunday or any day on which banking
institutions are authorized to close in New York, New York.
“Common Stock” means
shares of the Class A Common Stock, par value $.001 per share, of the
Corporation or any other shares of capital stock of the Corporation into which
the Common Stock is reclassified or changed.
“Depositary” means DTC
or its successor depositary.
“Market Price” means,
when used with respect to any security as of any date, the volume weighted
average price of such security on the twenty (20) consecutive Trading Days
immediately preceding (but not including) such date as reported for consolidated
transactions with respect to securities listed on the principal national
securities exchange on which such security is listed or admitted to trading; or,
if such security has not been listed or admitted to trading on a national
securities exchange for a minimum of twenty (20) consecutive Trading Days
immediately preceding (but not including) such date, the volume weighted average
price of such security on the twenty (20) consecutive Trading Days immediately
preceding (but not including) such date in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotations System or such other system then in use; or, if such security has not
been quoted by any such organization for a minimum of twenty (20)
8
consecutive
Trading Days immediately preceding (but not including) such date, the volume
weighted average price of such security as of the twenty (20) consecutive
Trading Days immediately preceding (but not including) such date furnished by a
New York Stock Exchange member firm selected by the Corporation; or, if no New
York Stock Exchange member firm has furnished such prices for the twenty (20)
consecutive Trading Days immediately preceding (but not including) such date,
such price as determined by the Board of Directors acting reasonably and in good
faith, evidenced by a resolution of such Board of Directors, which resolution
shall be conclusive evidence of the Board of Directors’ approval and
determination of such matters.
“Officer” means the
Chairman, any Vice Chairman, the Chief Executive Officer, the President, the
Chief Operating Officer, any Vice President, the Chief Financial Officer, the
Treasurer, or the Secretary of the Corporation.
“Person” shall mean
any individual, corporation, general partnership, limited partnership, limited
liability partnership, joint venture, association, joint-stock company, trust,
limited liability company, unincorporated organization or government or any
agency or political subdivision thereof.
“Registrar” shall mean
the party described in Section 12 hereof.
“Trading Day” shall
mean a day on which the Common Stock was traded on the Corporation’s principal
national securities exchange or quotation system or in the over-the-counter
market and was not suspended from trading on any national or regional securities
exchange or association of over-the-counter market at the close of business on
such day.
“Transfer Agent” shall
mean the party described in Section 12 hereof.
Section
14. Miscellaneous.
(a) The
Series A PIK Preferred Stock is not entitled to any preemptive or subscription
rights in respect of any securities of the Corporation.
(b) If any
shares of Common Stock are listed on a national securities exchange, the Company
shall use its commercially reasonable efforts to list the Series A PIK Preferred
Stock on such exchange.
(c) Whenever
possible, each provision hereof shall be interpreted in a manner as to be
effective and valid under applicable law, but if any provision hereof is held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating or otherwise adversely affecting the remaining provisions
hereof. If a court of competent jurisdiction should determine that a
provision hereof would be valid or enforceable if a period of time were extended
or shortened or a particular percentage were increased or decreased, then such
court may make such change as shall be necessary to render the provision in
question effective and valid under applicable law.
(d) The
headings of the various subdivisions hereof are for convenience of reference
only and shall not affect the interpretation of any of the provisions
hereof.
9
(e) If any of
the voting powers, preferences and relative, participating, optional and other
special rights of the Series A PIK Preferred Stock and qualifications,
limitations and restrictions thereof set forth herein is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public policy, all
other voting powers, preferences and relative, participating, optional and other
special rights of Series A PIK Preferred Stock and qualifications, limitations
and restrictions thereof set forth herein which can be given effect without the
invalid, unlawful or unenforceable voting powers, preferences and relative,
participating, optional and other special rights of Series A PIK Preferred Stock
and qualifications, limitations and restrictions thereof shall, nevertheless,
remain in full force and effect, and no voting powers, preferences and relative,
participating, optional or other special rights of Series A PIK Preferred Stock
and qualifications, limitations and restrictions thereof herein set forth shall
be deemed dependent upon any other such voting powers, preferences and relative,
participating, optional or other special rights of Series A PIK Preferred Stock
and qualifications, limitations and restrictions thereof unless so expressed
herein.
(f) If any of
the Series A PIK Preferred Stock certificates shall be mutilated, lost, stolen
or destroyed, the Corporation shall issue, in exchange and in substitution for
and upon cancellation of the mutilated Series A PIK Preferred Stock certificate,
or in lieu of and substitution for the Series A PIK Preferred Stock certificate
lost, stolen or destroyed, a new Series A PIK Preferred Stock certificate of
like tenor and representing an equivalent amount of shares of Series A PIK
Preferred Stock, but only upon receipt of evidence of such loss, theft or
destruction of such Series A PIK Preferred Stock certificate and indemnity, if
requested, satisfactory to the Corporation and the Transfer Agent.
(g) RECEIPT
AND ACCEPTANCE OF A SHARE OR SHARES OF THE SERIES A PIK PREFERRED STOCK BY OR ON
BEHALF OF A HOLDER SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER
(AND ALL OTHERS HAVING BENEFICIAL OWNERSHIP OF SUCH SHARE OR SHARES) OF ALL OF
THE TERMS AND PROVISIONS OF THIS CERTIFICATE. NO SIGNATURE OR OTHER
FURTHER MANIFESTATION OF ASSENT TO THE TERMS AND PROVISIONS OF THIS CERTIFICATE
SHALL BE NECESSARY FOR ITS OPERATION OR EFFECT AS BETWEEN THE CORPORATION AND
THE HOLDER (AND ALL SUCH OTHERS).
10
EXHIBIT
A
FORM
OF SERIES A 15% PAY-IN-KIND PREFERRED STOCK
Number: ____________
Shares ____________
CUSIP
NO.:
SERIES
A 15% PAY-IN-KIND PREFERRED STOCK
(PAR
VALUE $.001 PER SHARE)
(LIQUIDATION
PREFERENCE $25.00 PER SHARE)
OF
CHARTER
COMMUNICATIONS, INC.
FACE OF
SECURITY
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.
HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE CERTIFICATE OF DESIGNATION (AS DEFINED
BELOW).
Charter
Communications, Inc., a Delaware corporation (the “Corporation”), hereby
certifies that Cede & Co. or registered assigns (the “Holder”) is the
registered owner of ____________ fully paid and non-assessable shares of
preferred stock of the Corporation designated the Series A 15% Pay-in-Kind
Preferred Stock, par value $.001 per share and liquidation preference $25.00 per
share (the “Series A
PIK Preferred Stock”). The shares of Series A PIK Preferred
Stock are transferable on the books and records of the Registrar, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Series A
Preferred Stock represented hereby are issued and shall in all respects be
subject to the provisions of Exhibit A to the
Amended and Restated Certificate of
31
Incorporation
of the Corporation dated [ ], 2009, as the same may
be amended from time to time in accordance with its terms (the “Certificate Of
Designation”). Capitalized terms used but not defined herein
shall have the respective meanings given to them in the Certificate of
Designation. The Corporation will provide a copy of the Certificate
of Designation to a Holder without charge upon written request to the
Corporation at its principal place of business.
Upon
receipt of this certificate, the Holder is bound by the Certificate of
Designation and is entitled to the benefits thereunder.
Unless
the Transfer Agent’s Certificate of Authentication hereon has been properly
executed, the shares of Preferred Stock evidenced hereby shall not be entitled
to any benefit under the Certificate of Designation or be valid or obligatory
for any purpose.
IN
WITNESS WHEREOF, Charter Communications, Inc. has executed this certificate as
of the date set forth below.
CHARTER
COMMUNICATIONS, INC.
|
By:
|
_____________________________ |
|
|
Name:
|
|
|
Title:
|
Dated:
ASSIGNMENT
FOR VALUE
RECEIVED, the undersigned assigns and transfers the shares of Series A PIK
Preferred Stock evidenced hereby to:
____________________________________________________________________________________________
(Insert
assignee’s social security or tax identification number)
____________________________________________________________________________________________
____________________________________________________________________________________________
(Insert
address and zip code of assignee)
and
irrevocably appoints:
____________________________________________________________________________________________
as agent
to transfer the shares of Preferred Stock evidenced hereby on the books of the
Transfer Agent and Registrar. The agent may substitute another to act
for him or her.
Date: _________________________
Signature:
(Sign
exactly as your name appears on the other side of this Preferred Stock
Certificate)
Signature
Guarantee: ____________________________ 1
|
1
|
Signature
must be guaranteed by an “eligible guarantor institution” (i.e., a bank,
stockbroker, savings and loan association or credit union) meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or such other “signature guarantee program” as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as
amended.
|
SCHEDULE
OF EXCHANGES FOR GLOBAL SECURITY
The
initial number of shares of Series A PIK Preferred Stock represented by this
Global Preferred Share shall be _________. The following exchanges of
a part of this Global Preferred Share have been made:
|
Date
Of Exchange
|
Amount
Of Increase
In
The
Number
Of Shares
Represented
By This
Global
Preferred Share
|
Number
Of Shares
Represented
By Global
Preferred
Share
Following
Such Increase
Or
Decrease
|
||
Signature
Of Authorized
Officer
Of
Registrar: __________________________