Attached files
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| 8-K - EASYLINK SERVICES INTERNATIONAL CORP | v209013_8k.htm |
EXHIBIT
3.2
STATE
OF DELAWARE
SECRETARY
OF STATE
DIVISION
OF CORPORATIONS
DELIVERED
04:15 PM 01/20/2011
FILED
04:12 PM 01/20/2011
SRV
110063168 – 2279234 FILE
Certificate
of Amendment to the
Certificate
of Incorporation of
EasyLink
Services International Corporation
EasyLink
Services International Corporation, a corporation organized and existing under
the laws of the State of Delaware (hereinafter "the Corporation"), does hereby
certify:
FIRST: That
pursuant to the authority vested in the Board of Directors of the Corporation
pursuant to the Restated Certificate of Incorporation of the Corporation, as
amended (the “Certificate of Incorporation”), and in accordance with the
provisions of Sections 151 and 242 of the General Corporation Law of the
State of Delaware (the “DGCL”), the Board of Directors of the Corporation duly
adopted resolutions setting forth an amendment to the Certificate of Powers,
Designations, Preferences and Relative, Participating, Optional and Other
Special Rights of the Series C Convertible Redeemable Preferred Stock (the
“Certificate of Designation”), as such Certificate of Designation is
incorporated into the Certificate of Incorporation (this
“Amendment”).
SECOND: That
in accordance with the provisions of Section 242 of the DGCL, the sole holder of
the Series C Convertible Redeemable Preferred Stock (the “Series C Stock”) duly
adopted resolutions approving this Amendment.
THIRD: That
the Certificate of Designation is hereby amended by replacing Section 7 thereof
with the following:
“7. Conversion.
(a) Notwithstanding
the provisions of Section 6 hereof regarding redemption and subject to the terms
and conditions of this Section 7, all of the outstanding shares of Series C
Preferred shall be converted, effective upon the effective date of the Amendment
setting forth this amended Section 7, into the number of whole shares
(calculated to the nearest whole share with 5/10ths of a share being considered
as nearer to the next higher whole share) of fully paid and nonassessable Common
Stock at the conversion price set forth in Section 7(d) hereof, each share of
Series C Preferred being taken at $1,000.00 for the purpose of such
conversion. All rights of the holder of each share of Series C Preferred
as a holder of such shares shall cease at such time and the person or persons in
whose name or names the certificate(s) for the shares of Common Stock issuable
upon conversion are to be issued shall be treated for all purposes as having
become the record holder or holders thereof at such time.
(b) As
promptly as practicable after surrender of a certificate or certificates for
shares of Series C Preferred so converted at the principal place of business of
the Corporation to the attention of the Secretary (or at such other place or
places, or to such other person's attention, as may be designated by the
Corporation) at any time during usual business hours, the Corporation shall
deliver or cause to be delivered to or upon the written order of such holder one
or more certificates representing the number of shares of Common Stock issuable
upon such conversion, issued in such name or names as such holder may
direct.
(c) [Reserved].
(d) The
conversion price for shares of Series C Preferred shall be $7.14286 per
share.
(e) [Reserved].
(f) [Reserved].
(g) As
used in this Section 7, the term "Common Stock" shall mean and include the
Corporation's Class A Common Stock, par value $.01 per share.
(h) No
fractional shares of stock shall be issued upon the conversion of any Series C
Preferred. If the number of shares of Common Stock issuable upon any such
conversion would include a fraction of a share, such number shall be rounded up
to the next whole number of shares of Common Stock.
(i) Upon
any conversion, no adjustment shall be made for dividends on the Series C
Preferred surrendered for conversion or on the Common Stock
delivered.
(j) The
Corporation will at all times reserve and keep available out of its authorized
but unissued stock, solely for the purpose of issue upon conversion of the
Series C Preferred, as provided in this Section 7, such number of shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of Series C Preferred, and, upon the issuance thereof
upon conversion, all in accordance with the provisions hereof, such shares of
Common Stock shall be duly and validly issued, fully paid and
nonassessable.
(k) [Reserved].
(l) The
issuance of certificates for shares of Common Stock shall be made without charge
for any tax in respect of such issuance. However, if any such certificate
is to be issued in a name other than that of the holder of the converted Series
C Preferred, the Corporation shall not be required to issue or deliver any stock
certificate or certificates unless and until the holder has paid to the
Corporation the amount of any tax which 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 due.
(m) In
the event of (i) any taking by the Corporation of a record of the holders of any
class of securities for the purpose of determining the holders of such
securities who are entitled to receive any dividend (other than a cash dividend)
or other distribution on the Common Stock or any right, warrant or option to
subscribe for or purchase any shares of Common Stock of any class or Convertible
Securities, or (ii) any reclassification or recapitalization of the capital
stock of the Corporation, any consolidation or merger of the Corporation with or
into another corporation, any transfer of all or substantially all of the assets
of the Corporation to any other corporation, entity or person, or any voluntary
or involuntary dissolution, liquidation or winding up of the Corporation, the
Corporation shall mail to each holder of Series C Preferred at least ten (10)
days prior to the date specified in such notice, a notice specifying (A) the
date on which any such record is to be taken for the purpose of such dividend,
distribution or rights, (B) the date on which any such reclassification,
recapitalization, consolidation, merger, transfer, dissolution, liquidation, or
winding up is expected to come effective, and (C) the time, if any is to be
fixed, as to when the holders of record of Common Stock (or other securities)
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, dissolution, liquidation or
winding up.”
IN
WITNESS WHEREOF, the Corporation has caused this Amendment to be executed by its
duly authorized officer on this 20th day of January, 2011.
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EASYLINK
SERVICES INTERNATIONAL CORPORATION
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By:
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/s/ Glen E. Shipley
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Glen
E. Shipley
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Chief
Financial Officer and
Secretary
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