Attached files
file | filename |
---|---|
10-Q - EASYLINK SERVICES INTERNATIONAL CORP | v214507_10q.htm |
EX-3.5 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-5.htm |
EX-3.7 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-7.htm |
EX-3.4 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-4.htm |
EX-3.1 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-1.htm |
EX-3.6 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-6.htm |
EX-3.3 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-3.htm |
EX-3.2 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-2.htm |
EX-3.9 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-9.htm |
EX-32.1 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex32-1.htm |
EX-31.2 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex31-2.htm |
EX-32.2 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex32-2.htm |
EX-31.1 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex31-1.htm |
EXHIBIT
3(i).8
State of Delaware
Secretary of State
Division of Corporations
Delivered 01:23 PM 08/31/2009
Filed 01:05 PM 08/31/2009
SRV 090821046 2279234 FILE
Secretary of State
Division of Corporations
Delivered 01:23 PM 08/31/2009
Filed 01:05 PM 08/31/2009
SRV 090821046 2279234 FILE
Certificate of the Powers, Designations, Preferences and Relative, Participating, Optional and
Other Special Rights of the
Other Special Rights of the
Series F Junior Participating Preferred Stock
of
EasyLink Services International Corporation
and the Qualifications, Limitations or Restrictions Thereof, Which Have Not Been Set Forth in the
Certificate of Incorporation or in Any Amendment Thereto.
Certificate of Incorporation or in Any Amendment Thereto.
(Pursuant to Section 151 of the General Corporation Law of the State of Delaware)
The undersigned, Thomas J. Stallings, Chief Executive Officer of EasyLink Services
International Corporation, a corporation organized and existing under the laws of the State of
Delaware (hereinafter, the Corporation), does hereby certify:
That pursuant to authority conferred upon the Board of Directors of the Corporation by its
Certificate of Incorporation, as amended (the Certificate of Incorporation), and pursuant to the
provisions of Section 151 of the General Corporation Law of the State of Delaware, the Board of
Directors of the Corporation, by a meeting of the Board of Directors on August 25, 2009, duly
adopted the following resolution:
RESOLVED, that, pursuant to the authority expressly granted to and vested in the Board of
Directors of the Corporation by the provisions of the Certificate of Incorporation, the Board of
Directors of the Corporation hereby creates a series of Preferred Stock of the Corporation to
consist of 100,000 of the 5,000,000 shares of Preferred Stock, $.01 par value per share, which the
Corporation now has authority to issue, and the Board of Directors of the Corporation hereby fixes
the designations, powers, preferences and relative, participating, optional and other special
rights, and the qualifications, limitations or restrictions thereof, of the shares of such series
of Preferred Stock (in addition to the designations, powers, preferences and relative,
participating, optional and other special rights, and the qualifications, limitations or
restrictions thereof, set forth in the Certificate of Incorporation of the Corporation which are
applicable to Preferred Stock of all series) as follows:
Section 1. Designation and Amount. The shares of such series shall be designated as
Series F Junior Participating Preferred Stock and the number of shares constituting such series
shall be 100,000 (hereinafter referred to as the Series F Preferred Shares).
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the shares of Series F Preferred Shares with respect
to dividends, the holders of Series F Preferred Shares shall be entitled to receive, when, as and
if
declared by the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first business day of January, April, July and October in each
year (each such date being referred to herein as a Quarterly Dividend Payment Date), commencing
on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a
share of Series F Preferred Shares, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set forth,
1,000 times the aggregate per share amount of all cash dividends, plus 1,000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Class A Common Stock, par value $.01 per share, of
the Corporation (the Common Shares) since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series F Preferred Shares. In the event the Corporation shall
at any time after September 8, 2009 (the Rights Declaration Date) (i) declare any dividend on
Common Shares payable in Common Shares, (ii) subdivide the outstanding Common Shares, or (iii)
combine the outstanding Common Shares into a smaller number of shares, then in each case the amount
to which holders of Series F Preferred Shares were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on the outstanding Series F
Preferred Shares as provided in paragraph (A) above immediately after it declares a dividend or
distribution on the Common Shares (other than a dividend payable in Common Shares);
provided, however, that, in the event no dividend or distribution shall have been
declared on the Common Shares during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking prior to and superior to the Series
F Preferred Shares with respect to dividends, a dividend of $1.00 per share on the Series F
Preferred Shares shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding Series F Preferred Shares
from the Quarterly Dividend Payment Date next preceding the date of issue of such Series F
Preferred Shares, unless the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of Series F Preferred Shares
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the Series F
Preferred Shares in an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares
at the time outstanding. The Board of Directors may fix a record date for the determination of
holders of Series F Preferred Shares entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 60 days prior to the date fixed for the
payment thereof.
2
Section 3. Voting Rights.
The holders of Series F Preferred Shares shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Series F
Preferred Shares shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares, or (iii) combine the outstanding Common Shares into a
smaller number of shares, then in each such case the number of votes per share to which holders of
Series F Preferred Shares were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of Series F Preferred Shares
and the holders of Common Shares shall vote collectively as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series F Preferred Shares shall be in arrears in an
amount equal to six (6) quarterly dividends thereon, the occurrence of such contingency shall mark
the beginning of a period (herein called a default period) which shall extend until such time
when all accrued and unpaid dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all Series F Preferred Shares then outstanding shall have been
declared and paid or set apart for payment. During each default period, all holders of shares of
Preferred Stock (including, without limitation, holders of the Series F Preferred Shares) with
dividends in arrears in an amount equal to six (6) quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of Series F Preferred Shares
may be exercised initially at a special meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that such voting right shall not be exercised unless the holders of ten
percent (10%) in number of shares of Preferred Stock outstanding shall be present in person or by
proxy. The absence of a quorum of the holders of Common Shares shall not affect the exercise by
the holders of shares of Preferred Stock of such voting rights. At any meeting at which the
holders of shares of Preferred Stock shall exercise such voting right initially during an existing
default period, they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2) Directors or, if such
right is exercised at an annual meeting, to elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the required number, the holders of the shares of
Preferred Stock shall have the right to make such increase in the number of Directors as shall be
necessary to permit the election by them of the required number. After the holders of the shares
of Preferred Stock shall have exercised their right to elect Directors in any default period and
during the continuance of such period, the number of Directors shall not be increased or decreased
except by vote of the holders of shares of Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or pari passu with the Series F
Preferred Shares.
3
(iii) Unless the holders of shares of Preferred Stock shall, during an existing default
period, have previously exercised their right to elect Directors, the Board of Directors may order,
or any stockholder or stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding, irrespective of series, may request, the
calling of a special meeting of the holders of shares of Preferred Stock, which meeting shall
thereupon be called by the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, any Vice President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of shares of Preferred Stock are entitled to
vote pursuant to this paragraph (C)(iii) shall be given to each holder of record of shares of
Preferred Stock by mailing a copy of such notice to him or her at his or her last address as the
same appears on the books of the Corporation. Such meeting shall be called for a time not earlier
than 20 days and not later than 60 days after such order or request, or in default of the calling
of such meeting within 60 days after such order or request, such meeting may be called on similar
notice by any stockholder or stockholders owning in the aggregate not less than ten percent (10%)
of the total number of shares of Preferred Stock outstanding. Notwithstanding the provisions of
this paragraph (C)(iii), no such special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Shares, and, if applicable, other classes of
capital shares of the Corporation, shall continue to be entitled to elect the whole number of
Directors until the holders of shares of Preferred Stock shall have exercised their right to elect
two (2) Directors voting as a class, after the exercise of which right (x) the Directors so elected
by the holders of shares of Preferred Stock shall continue in office until their successors shall
have been elected by such holders or until the expiration of the default period, and (y) any
vacancy in the Board of Directors may (except as provided in paragraph (C)(ii) of this Section 3)
be filled by vote of a majority of the remaining Directors theretofore elected by the holders of
the class of stock which elected the Director whose office shall have become vacant. References in
this paragraph (C) to Directors elected by the holders of a particular class of stock shall include
Directors appointed by such Directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period, (x) the right of the holders of
shares of Preferred Stock as a class to elect Directors shall cease, (y) the term of any Directors
elected by the holders of shares of Preferred Stock as a class shall terminate, and (z) the number
of Directors shall be such number as may be provided for in the Certificate of Incorporation or
by-laws of the Corporation irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject, however, to change thereafter in
any manner provided by law or in the Certificate of Incorporation or by-laws of the Corporation).
Any vacancies in the Board of Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series F Preferred Shares shall have no special
voting rights and their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Shares as set forth herein) for taking any corporate action.
4
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Series F
Preferred Shares as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on Series F Preferred Shares
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series F Preferred Shares;
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series F Preferred Shares, except dividends paid ratably on the Series F Preferred Shares and
all such parity shares on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series F
Preferred Shares, provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity shares in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the
Series F Preferred Shares; or
(iv) purchase or otherwise acquire for consideration any Series F Preferred Shares, or any
shares of stock ranking on a parity with the Series F Preferred Shares, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares.
Any Series F Preferred Shares purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
5
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series F Preferred Shares unless,
prior thereto, the holders of Series F Preferred Shares shall have received an amount equal to
$1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the Series F Liquidation Preference).
Following the payment of the full amount of the Series F Liquidation Preference, no additional
distributions shall be made to the holders of Series F Preferred Shares unless, prior thereto, the
holders of Common Shares shall have received an amount per share (the Common Adjustment) equal to
the quotient obtained by dividing (i) the Series F Liquidation Preference by (ii) 1,000 (as
appropriately adjusted as set forth in subparagraph (C) below to reflect such events as stock
splits, stock dividends and recapitalizations with respect to the Common Shares) (such number in
clause (ii), the Adjustment Number). Following the payment of the full amount of the Series F
Liquidation Preference and the Common Adjustment in respect of all outstanding Series F Preferred
Shares and Common Shares, respectively, and the payment of liquidation preferences of all other
shares of stock which rank prior to or on a parity with Series F Preferred Shares, holders of
Series F Preferred Shares and holders of Common Shares shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number
to 1 with respect to such shares of Preferred Stock and Common Shares, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient assets available to permit payment in
full of the Series F Liquidation Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series F Preferred Shares, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not sufficient assets available to
permit payment in full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Shares.
(C) In the event the Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Shares payable in Common Shares, (ii) subdivide the outstanding
Common Shares, or (iii) combine the outstanding Common Shares into a smaller number of shares, then
in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted
by multiplying such Adjustment Number by a fraction the numerator of which is the number of Common
Shares outstanding immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
6
Section 7. Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, merger, combination or other
transaction in which the Common Shares are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case the Series F Preferred Shares shall at the
same time be similarly exchanged or changed into an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case may be, for which
or into which each Common Share is exchanged or changed. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common Shares payable in Common
Shares, (ii) subdivide the outstanding Common Shares, or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of Series F Preferred Shares shall be
adjusted by multiplying such amount by a fraction the numerator of which is the number of Common
Shares outstanding immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
Section 8. No Redemption.
The Series F Preferred Shares shall not be redeemable.
Section 9. Ranking.
The Series F Preferred Shares shall rank junior to all other series of the Corporations
Preferred Stock as to the payment of dividends and the distribution of assets, whether or not upon
the dissolution, liquidation or winding up of the Corporation, unless the terms of any such series
shall provide otherwise.
Section 10. Amendment.
The Certificate of Incorporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series F Preferred Shares so as to
affect them adversely without the affirmative vote of the holders of a majority of the outstanding
Series F Preferred Shares, voting separately as a class.
Section 11. Fractional Shares.
Series F Preferred Shares may be issued in fractions of a share which shall entitle the
holder, in proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other rights of holders of
Series F Preferred Shares.
7
THE UNDERSIGNED Chief Executive Officer of EasyLink Services International Corporation hereby
makes this certificate, declaring and certifying that this is the duly authorized act and deed of
the Corporation and the facts herein stated are true, and accordingly have hereunto set his hand
this 31st day of August, 2009.
EASYLINK SERVICES INTERNATIONAL CORPORATION |
||||
By: | /s/ Thomas J. Stallings | |||
Name: | Thomas J. Stallings | |||
Title: | Chief Executive Officer |
(Corporate Seal) |
||
Attest: |
||
/s/ Glen E. Shipley
|
8