Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - CROWN MEDIA HOLDINGS INC | mainbody.htm |
| EX-3.3 - FORM OF THIRD CERT OF INC - CROWN MEDIA HOLDINGS INC | thirdcert.htm |
| EX-2.2 - FORM OF MERGER HEH - CROWN MEDIA HOLDINGS INC | mergerheh.htm |
| EX-2.1 - FORM OF MERGER HEIC - CROWN MEDIA HOLDINGS INC | mergerheic.htm |
| EX-10.3 - FORM OF AMENDMENT NO. 2 TO TAX SHARING - CROWN MEDIA HOLDINGS INC | taxsharing.htm |
| EX-10.1 - MASTER RECAPITALIZATION AGREEMENT - CROWN MEDIA HOLDINGS INC | masterrecap.htm |
| EX-99.1 - PRESS RELEASE - CROWN MEDIA HOLDINGS INC | pressrelease.htm |
| EX-3.2 - FORM OF CERTIFICATE OF DESIGNATION - CROWN MEDIA HOLDINGS INC | certpreferred.htm |
| EX-10.2 - FORM OF CREDIT AGREEMENT - CROWN MEDIA HOLDINGS INC | creditagreement.htm |
| EX-4.2 - FORM OF REGISTRATION RIGHTS AGREEMENT - CROWN MEDIA HOLDINGS INC | registrationrights.htm |
| EX-4.1 - FORM OF STOCKHOLDERS AGREEMENT - CROWN MEDIA HOLDINGS INC | stockholdersagreement.htm |
Exhibit
3.1
SECOND
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CROWN
MEDIA HOLDINGS, INC.
Crown
Media Holdings, Inc. (the “Corporation”), a
corporation organized and existing under and by virtue of the provisions of the
General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY
CERTIFY that:
1. The name
of the Corporation is Crown Media Holdings Inc.
2. The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware under the name of Crown Media
Holdings, Inc. on December 15, 1999.
3. This
Second Amended and Restated Certificate of Incorporation of the Corporation,
which restates and integrates and further amends the provisions of the Amended
and Restated Certificate of Incorporation of the Corporation, as heretofore
amended, was duly adopted in accordance with Sections 242 and 245 of the DGCL
and was approved by written consent of the stockholders of the Corporation in
accordance with the provisions of Section 228 of the DGCL.
4. The text
of the Amended and Restated Certificate of Incorporation, as heretofore amended,
is hereby amended and restated to read in its entirety as follows:
[Remainder
of page intentionally left blank]
ARTICLE
I.
NAME
The name
of the corporation (which is hereinafter referred to as the “Corporation”)
is:
CROWN
MEDIA HOLDINGS, INC.
ARTICLE
II.
REGISTERED
AGENT
The
address of the Corporation’s registered office in the State of Delaware is The
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of the Corporation’s registered agent at such
address is The Corporation Trust Company.
ARTICLE
III.
PURPOSE
The
purpose of the Corporation shall be to engage in any lawful act or activity for
which corporations may be organized and incorporated under the General
Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE
IV.
CAPITAL
STOCK
Section
4.1. Authorized
Capital.
The
Corporation shall have authority to issue 500,000,000 shares of Class A Common
Stock, par value $0.01 per share (the “Common Stock”), and
1,000,000 shares of preferred stock, par value $0.01 per share (the “Preferred
Stock”). The number of authorized shares of any class or
classes of stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of the
majority of the voting power of the capital stock of the Corporation entitled to
vote, irrespective of Section 242(b)(2) of the DGCL.
Upon the
filing of this Second Amended and Restated Certificate of Incorporation (the
“Effective
Time”), each share of Class B Common Stock, par value $0.01 per share
(“Class B Common
Stock”), issued and outstanding immediately prior to the Effective Time
is automatically and without any action on the part of the holder thereof
reclassified, changed and converted into a share of Common Stock on a one for
one basis, and each certificate representing shares of Class B Common Stock
outstanding immediately prior to such Effective Time shall thereafter represent
shares of Common Stock.
A
statement of the designations of each class of capital stock of the Corporation
and the powers, preferences and rights, and qualifications, limitations or
restrictions thereof is as follows:
Section
4.2. Common
Stock.
(a) Dividends. Subject
to the preferences and other rights of the Preferred Stock, if any, the holders
of Common Stock shall be entitled to receive dividends when declared from time
to time by the Board of Directors.
(b) Liquidation. In
the event of the voluntary or involuntary liquidation, dissolution, or
winding-up of the Corporation, the holders of the Common Stock shall be entitled
to receive share for share, all the assets of the Corporation of whatever kind
available for distribution to stockholders, after the rights of the holders of
the Preferred Stock have been satisfied.
(c) Voting. Each
holder of Common Stock shall be entitled to one vote for each share of Common
Stock held as of the applicable date on any matter that is submitted to a vote
or for the consent of the stockholders of the Corporation.
Section
4.3. Preferred
Stock.
The Board
of Directors is authorized, subject to the limitations prescribed by law and the
provisions of this Article IV, to provide for the issuance of the shares of
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The
authority of the Board with respect to each series shall include, but not be
limited to, determination of the following:
(a) The
number of shares constituting that series and the distinctive designation of
that series;
(b) The
dividend rate on the shares of that series, whether dividends shall be
cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that series;
(c) Whether
that series shall have voting rights, in addition to the voting rights provided
by law, and, if so, the terms of such voting rights;
(d) Whether
that series shall have conversion privileges, and, if so, the terms and
conditions of such conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(e) Whether
or not the shares of that series shall be redeemable, and, if so, the terms and
conditions of such redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and at different
redemption dates;
(f) Whether
that series shall have a sinking fund for the redemption or purchase of shares
of that series, and, if so, the terms and amount of such sinking fund;
(g) The
rights of the shares of that series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the corporation, and the relative
rights of priority, if any, of payment of shares of that series;
and
(h) Any other
relative rights, preferences and limitations of that series.
Dividends
on outstanding shares of Preferred Stock shall be paid or declared and set apart
for payment before any dividends shall be paid or declared and set apart for
payment on shares of Common Stock with respect to the same dividend
period.
If upon
any voluntary or involuntary liquidation, dissolution or winding up of the
corporation, the assets available for distribution to holders of shares of
Preferred Stock of all series shall be insufficient to pay such holders the full
preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
ARTICLE
V.
CONDUCT
OF CERTAIN AFFAIRS OF THE CORPORATION
Section
5.1. Scope
of Article V.
In
anticipation of the possibility that the Corporation and Hallmark (as defined
below) may engage in the same or similar activities or lines of business and
have an interest in the same areas of corporate opportunities, and in
recognition of the benefits to be derived by the Corporation through its
continued contractual, corporate and business relations with Hallmark (including
possible service of officers and directors of Hallmark as officers and directors
of the Corporation), the provisions of this Article V are set forth to regulate
and define the conduct of certain affairs of the Corporation as they may involve
Hallmark and its officers and directors, and the powers, rights, duties and
liabilities of the Corporation and its officers, directors and stockholders in
connection therewith.
Section
5.2. General
Rule.
Hallmark
shall have no duty to refrain from engaging in the same or similar activities or
lines of business as the Corporation and, to the fullest extent permitted by
law, neither Hallmark nor any officer or director thereof (except as provided in
Section 5.3 below) shall be liable to the Corporation or its stockholders for
breach of any fiduciary duty by reason of any such activities of
Hallmark. In the event that Hallmark acquires knowledge of a
potential transaction or matter which may be a corporate opportunity for both
Hallmark and the Corporation, Hallmark shall have no duty to communicate or
offer such corporate opportunity to the Corporation and shall not be liable to
the Corporation or its stockholders for breach of any fiduciary duty as a
stockholder of the Corporation by reason of the fact that Hallmark pursues or
acquires such corporate opportunity for itself, directs such corporate
opportunity to another person, or does not communicate information regarding
such corporate opportunity to the Corporation.
Section
5.3. Safe
Harbor.
In the
event that a director or officer of the Corporation who is also a director or
officer of Hallmark acquires knowledge of a potential transaction or matter
which may be a Business Opportunity or a Corporate Transaction Opportunity for
both the Corporation and Hallmark, such director or officer of the Corporation
shall have fully satisfied and fulfilled the fiduciary duty of such director or
officer to the Corporation and its stockholders with respect to such Business
Opportunity or Corporate Transaction Opportunity, if such director or officer
acts in a manner consistent with the following policies, and the Corporation
hereby renounces any interest or expectancy of the Corporation in, or in being
offered an opportunity to participate in, any Business Opportunity or Corporate
Transaction Opportunity that does not belong to the Corporation under the
following policies:
(a) With
respect to a Business Opportunity:
(i) A
Business Opportunity offered to any person who is an officer of the Corporation,
and who is also a director but not an officer of Hallmark, shall belong to the
Corporation;
(ii) A
Business Opportunity offered to any person who is a director but not an officer
of the Corporation, and who is also a director or officer of Hallmark shall
belong to the Corporation if such Business Opportunity is expressly offered to
such person in his or her capacity as a director of the Corporation, and
otherwise shall belong to Hallmark; and
(iii) A
Business Opportunity offered to any person who is an officer of both the
Corporation and Hallmark shall belong to the Corporation if such Business
Opportunity is expressly offered to such person in his or her capacity as an
officer of the Corporation, and otherwise shall belong to Hallmark.
(b) With
respect to a Corporate Transaction Opportunity, such Corporate Transaction
Opportunity shall belong to Hallmark, and any person who is an officer or
director of the Corporation and an officer or director of Hallmark shall have no
duty to communicate such Corporate Transaction Opportunity to the
Company.
Section
5.4. Acceptance
by Stockholders.
Any
person purchasing or otherwise acquiring any interest in shares of the capital
stock of the Corporation shall be deemed to have notice of and to have consented
to the provisions of this Article V.
Section
5.5. Definitions.
For
purposes of this Article V only:
(a) A
director of the Corporation who is Chairman of the Board of Directors of the
Corporation or of a committee thereof shall not be deemed to be an officer of
the Corporation by reason of holding such position (without regard to whether
such position is deemed an office of the Corporation under the By-Laws of the
Corporation), unless such person is a full-time employee of the Corporation;
provided that such person shall be entitled to rely on the provisions of Section
5.3 as if he or she were an officer of the Corporation.
(b) “Business
Opportunity” shall mean any corporate opportunity relating to
the operation of a multichannel video programming provider, but shall not
include any Corporate Transaction Opportunity.
(c) “Corporate Transaction
Opportunity” shall mean any corporate opportunity relating to
the acquisition by a third party unaffiliated with Hallmark of the Corporation
or of all or a material portion of its equity, debt, assets, or voting
power.
(d) “Corporation” shall
mean the Corporation and all corporations, partnerships, joint ventures,
associations and other entities in which the Corporation beneficially owns
(directly or indirectly) 50% or more of the outstanding voting stock, voting
power, partnership interests or similar voting interests.
(e) “Hallmark” shall mean
Hallmark Cards, Incorporated, a Missouri corporation, and all corporations,
partnerships, joint ventures, associations and other entities (other than the
Corporation, as defined in accordance with this paragraph) in which Hallmark
beneficially owns (directly or indirectly) 50% or more of the outstanding voting
stock, voting power, partnership interests or similar voting
interests.
Section
5.6. Termination.
Anything
in this Second Amended and Restated Certificate of Incorporation to the contrary
notwithstanding, the foregoing provisions of this Article V shall expire and
have no further force and effect on the date that Hallmark ceases to
beneficially own shares of capital stock representing at least 20% of the total
voting power of all classes of outstanding capital stock of the Corporation
entitled to vote in the election of directors and no person who is a director or
officer of the Corporation is also a director or officer of Hallmark
. Neither the alteration, amendment, expiration or repeal of this
Article V nor the adoption of any provision of this Second Amended and Restated
Certificate of Incorporation inconsistent with this Article V shall eliminate or
reduce the effect of this Article V in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Article V, would accrue or
arise, prior to such alteration, amendment, expiration, repeal or adoption.
ARTICLE
VI.
BY-LAWS
The Board
of Directors of the Corporation is expressly authorized to make, alter or repeal
the By-Laws of the Corporation, but the stockholders may make additional By-Laws
and may alter or repeal any By-Law whether adopted by them or
otherwise. No By-Law of the Corporation may be inconsistent with,
limit in any way, or conflict with any of the provisions of this Second Amended
and Restated Certificate of Incorporation.
ARTICLE
VII.
ELECTION
OF DIRECTORS
Elections
of directors need not be by written ballot except and to the extent provided in
the By-Laws of the Corporation.
ARTICLE
VIII.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Each
person who is or was a director or officer of the Corporation, or each such
person who is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the By-Laws of the Corporation, to the full extent permitted from time to
time by the General Corporation Law of the State of Delaware as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) or any other applicable laws as presently or hereinafter in
effect. Without limiting the generality or the effect of the
foregoing, the Corporation may enter into one or more agreements with any person
that provide for indemnification greater or different than that provided in this
Article VIII. Any amendment or repeal of this Article VIII shall not adversely
affect any right or protection existing hereunder immediately prior to such
amendment or repeal.
ARTICLE
IX.
LIABILITY
OF DIRECTORS
A
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which
the director derived an improper personal benefit. Any repeal or
amendment of this Article IX shall not adversely affect any right or protection
of a director of the Corporation existing at the time of such repeal or
amendment with respect to an act or omission of such director occurring prior to
such repeal or amendment. The
liability of a director shall be further eliminated or limited to the full
extent permitted by Delaware law, as it may hereafter be amended.
ARTICLE
X.
STOCKHOLDER
ACTION BY WRITTEN CONSENT
Any
action required or permitted to be taken at any annual or special meeting of
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding capital stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares of capital stock entitled to vote
thereon were present and voted; provided, however, that on and after the date on
which Hallmark and its affiliates cease to beneficially own 50% or more of the
total voting power of all classes of capital stock entitled to vote in the
election of directors, any action required or permitted to be taken by
stockholders may be effected only at a duly called annual or special meeting of
stockholders and may not be effected by a written consent or consents by
stockholders in lieu of such a meeting.
ARTICLE
XI.
AMENDMENTS
The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Second Amended and Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by the DGCL, and all rights conferred
upon stockholders herein are granted subject to this reservation.
ARTICLE
XII.
REORGANIZATION
Whenever
a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for the Corporation under Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
ARTICLE
XIII.
OPT
OUT OF SECTION 203
The
Corporation shall not be governed by Section 203 of the DGCL (“Section 203”),
and the restrictions contained in Section 203 shall not apply to the
Corporation, until the moment in time immediately following the time at which
both of the following conditions exist (if ever): (a) Section 203 by its terms
would, but for the provisions of this Article XIII, apply to the Corporation;
and (b) there occurs a transaction in which Hallmark's beneficial ownership
interest in the Corporation is reduced to less than fifty percent (50%) of the
outstanding shares of Common Stock, and the Corporation shall thereafter be
governed by Section 203 if and for so long as Section 203 by its terms shall
apply to the Corporation.
IN WITNESS WHEREOF, the undersigned
hereby certifies that the facts hereinabove stated are truly set forth, and
accordingly executes this Second Amended and Restated Certificate of
Incorporation this [ ] day of
[ ],
2010.
CROWN MEDIA HOLDINGS,
INC.
________________________________
Name:
Title: