EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GSC HOLDINGS CORP.
GSC Holdings Corp., a corporation organized and existing under the laws of
the State of Delaware, pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented (the "GCL"), hereby certifies as follows:
1. The name of this corporation is GSC Holdings Corp. The original
Certificate of Incorporation was filed on April 13, 2005.
2. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the original Certificate of Incorporation to read
in its entirety as follows:
"FIRST: The name of the corporation is GSC Holdings Corp.(the
"Corporation").
SECOND: The registered office of the Corporation is to be located at 615
S. Dupont Highway, City of Dover, County of Kent, State of Delaware. The name of
its registered agent at that address is Capitol Services, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the GCL.
FOURTH: (a) Authorized Capital Stock. The total number of shares of stock
that the Corporation shall have authority to issue is 405,000,000 of which (i)
300,000,000 shares shall be shares of Class A Common Stock, par value $.00l per
share (the "Class A Common Stock"), (ii) 100,000,000 shares shall be shares of
Class B Common Stock, par value $.00l per share (the "Class B Common Stock")
(the Class A Common Stock and the Class B Common Stock being collectively
referred to herein as the "Common Stock"), and (iii) 5,000,000 shares shall be
shares of Preferred Stock, par value $.001 per share (the "Preferred Stock"),
issuable in one or more series as hereinafter provided. The number of authorized
shares of any class or classes of capital stock of the Corporation may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of the stock of the Corporation entitled to vote generally in the election
of directors ("Voting Stock") irrespective of the provisions of Section
242(b)(2) of the GCL or any corresponding provision hereinafter enacted.
(b) Common Stock.
(i) Voting Rights.
(A) All shares of Common Stock will be identical in all
respects and will entitle the holders thereof to the same rights and privileges,
except as otherwise provided in this Amended and Restated Certificate of
Incorporation (this "Certificate of Incorporation").
(B) The holders of shares of Common Stock shall have the
following voting rights:
(1) At every meeting of the stockholders of the
Corporation every holder of Class A Common Stock shall be entitled to one vote
in person or by proxy for each share of Class A Common Stock standing in such
holder's name on the transfer books of the Corporation in connection with the
election of directors and all other matters submitted to a vote of stockholders.
(2) At every meeting of the stockholders of the
Corporation every holder of Class B Common Stock shall be entitled to ten votes
in person or by proxy for each share of Class B Common Stock standing in his or
her name on the transfer books of the Corporation in connection with the
election of directors and all other matters submitted to a vote of stockholders.
(3) Except as may be otherwise required by law or
by this Certificate of Incorporation, the holders of Class A Common Stock and
Class B Common Stock shall vote together as a single class and their votes shall
be counted and totaled together, subject to any voting rights which may be
granted to holders of Preferred Stock, on all matters submitted to a vote of
stockholders of the Corporation. Notwithstanding any other provision of this
Certificate of Incorporation to the contrary, holders of Class A Common Stock
shall not be eligible to vote on any alteration or change in the powers,
preferences, or special rights of the Class B Common Stock that would not
adversely affect the rights of the Class A Common Stock; provided that, for the
foregoing purposes, any provision for the voluntary, mandatory or other
conversion or exchange of the Class B Common Stock into or for Class A Common
Stock on a one for one basis shall be deemed not to adversely affect the rights
of the Class A Common Stock.
(C) All rights to vote and all power (including, without
limitation, thereto, the right to elect directors) shall be vested exclusively
in the holders of Common Stock, voting together as a single class, except as
expressly provided in this Amended and Restated Certificate of Incorporation, in
a Certificate of Designation with respect to any Preferred Stock or as otherwise
expressly required by applicable law.
(D) No stockholder shall be entitled to exercise any
right of cumulative voting.
2
(ii) Dividends and Distributions. Subject to the rights of the
holders of Preferred Stock, and subject to any other provisions of this
Certificate of Incorporation, holders of Class A Common Stock and Class B Common
Stock shall be entitled to receive such dividends and other distributions in
cash, stock of any corporation (other than Common Stock of the Corporation) or
property 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 and shall share equally on a per share basis in all such dividends and
other distributions. In the case of dividends or other distributions payable in
Common Stock, including distributions pursuant to stock splits or divisions of
Common Stock of the Corporation, only shares of Class A Common Stock shall be
paid or distributed with respect to Class A Common Stock and only shares of
Class B Common Stock shall be paid or distributed with respect to Class B Common
Stock. The number of shares of Class A Common Stock and Class B Common Stock so
distributed on each share shall be equal in number.
(iii) Stock Splits. Neither the shares of Class A Common Stock
nor the shares of Class B Common Stock may be reclassified, subdivided or
combined unless such reclassification, subdivision or combination occurs
simultaneously and in the same proportion for each class.
(iv) Mergers, Consolidation, Etc. In case of any
consolidation, merger, combination or other transaction in which shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, each holder of a share of Class A Common Stock shall
be entitled to receive with respect to such share the same kind and amount of
shares of stock and other securities and property (including cash) receivable
upon such consolidation, merger, combination or other transaction by a holder of
a share of Class B Common Stock and each holder of a share of Class B Common
Stock shall be entitled to receive with respect to such share the same kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such consolidation, merger, combination or other transaction by
a holder of a share of Class A Common Stock. In the event that the holders of
Class A Common Stock (or of Class B Common Stock) are granted rights to elect to
receive one of two or more alternative forms of consideration, the foregoing
provision shall be deemed satisfied if holders of Class A Common Stock and
holders of Class B Common Stock are granted substantially identical election
rights. Notwithstanding the foregoing, in the event of any of the foregoing
transactions, the holders of Class B Common Stock may receive securities that
differ as to voting rights and powers on a per share basis from the securities
received by the holders of Class A Common Stock, provided, however, that such
difference shall not exceed ten to one, respectively. The provisions set forth
above shall not apply in the event of any internal restructuring of the
Corporation that does not change the economic terms, voting rights or other
provisions of such Class A Common Stock and Class B Common Stock in effect
immediately prior to such internal restructuring by the Corporation.
(v) Liquidation Rights. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, whether voluntary
or involuntary, after payment in full of the amounts required to be paid to the
holders of Preferred Stock, the remaining assets and
3
funds of the Corporation shall be distributed pro rata to the holders of Common
Stock, and the holders of Class A Common Stock and the holders of Class B Common
Stock will be entitled to receive the same amount per share in respect thereof.
For purposes of this paragraph (b)(v), the voluntary sale, conveyance, lease,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the assets of the Corporation or a
consolidation or merger of the Corporation with one or more other corporations
(whether or not the Corporation is the corporation surviving such consolidation
or merger) shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary.
(vi) No Preemptive Rights. No stockholder of the Corporation
shall have any preemptive or preferential right, nor be entitled as such as a
matter of right, to subscribe for or purchase any part of any new or additional
issue of stock of the Corporation of any class or series, whether now or
hereafter authorized, and whether issued for money or for consideration other
than money, or of any issue of securities convertible into stock of the
Corporation.
(vii) No Redemption Rights. No stockholder of the Corporation
shall have any right to have the shares of Common Stock held by such holder
redeemed by the Corporation.
(c) Series A Preferred Stock. A series of Preferred
Stock of the Corporation hereby is created, and the designation and amount
thereof, and the voting powers, preferences and relative, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof, are as follows:
(i) Designation, Par Value and Amount. The shares of such
series shall be designated as "Series A Junior Participating Preferred Stock"
(the "Series A Preferred"), the shares of such series shall be with par value of
$.001 per share, and the number of shares constituting such series shall be
500,000; provided, however, that, if more than a total of 500,000 shares of
Series A Preferred shall be issuable upon the exercise of Rights (the "Rights")
issued pursuant to the Rights Agreement, dated as of June 27, 2005, between the
Corporation and The Bank of New York, as Rights Agent (as amended from time to
time) (the "Rights Agreement"), the Board of Directors, pursuant to the General
Corporation Law of the State of Delaware, shall direct by resolution or
resolutions that a certificate be properly executed, acknowledged and filed
providing for the total number of shares of Series A Preferred authorized to be
issued to be increased (to the extent that the Certificate of Incorporation then
permits) to the largest number of whole shares (rounded up to the nearest whole
number) issuable upon exercise of the Rights.
(ii) 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 A Preferred with respect to dividends, the
holders of shares of Series A Preferred, in preference to the holders of Class A
Common Stock, Class B Common Stock, and any other junior stock, 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 30th day of each of April,
4
July, October and January in each year (or, in each case, if not a date on which
the Corporation is open for business, the next succeeding business day) or such
earlier date in any such month on which dividends on the Common Stock are
payable (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 A Preferred, 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, and 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 shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, 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 A Preferred. In the event the Corporation shall at any time
after June 27, 2005 (the "Rights Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount to which holders of shares
of Series A Preferred 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 shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
Series A Preferred shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Series A Preferred,
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 shares of Series A Preferred 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 shares of Series A Preferred 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 shares of Series A Preferred
entitled to receive payment of a dividend or distribution declared
5
thereon, which record date shall be no more than 30 days prior to the date fixed
for the payment thereof.
(iii) Voting Rights. The holders of shares of Series A
Preferred shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred shall entitle the holder thereof to
10,000 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 Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of shares of Series A Preferred
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 votes entitled
to be cast by the holders of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of votes entitled to
be cast by the holders of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series A Preferred and 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.
(C) (1) If at any time dividends on any Series A
Preferred 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 shares of Series A Preferred then
outstanding shall have been declared and paid or set apart for payment. During
each default period, all holders of Preferred Stock (including holders of the
Series A Preferred) 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.
(2) During any default period, such voting right
of the holders of Series A Preferred may be exercised initially at a special
meeting called pursuant to subparagraph (3) of this paragraph (iii)(C) or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in certain
cases, the authorized number of Directors shall 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
Stock shall not affect the exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders 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
6
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 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 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 Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A Preferred.
(3) Unless the holders 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 Preferred Stock,
which meeting shall thereupon be called by the Chairman of the Board, any Vice
Chairman, the Chief Executive Officer, the President, the Chief Operating
Officer, any Vice-President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this subparagraph (C)(3) shall be given to each
holder of record of Preferred Stock by mailing a copy of such notice to him at
his 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 subparagraph (C)(3), 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.
(4) In any default period, the holders of Common
Stock, and other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of Directors until the holders
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 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 subparagraph (C)(2) of this paragraph (iii)) 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 subparagraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(5) Immediately upon the expiration of a default
period, (x) the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders 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
7
Incorporation or By-laws of the Corporation (the "By-laws") irrespective of any
increase made pursuant to the provisions of subparagraph (C)(2) of this
paragraph (iii) (such number being subject, however to change thereafter in any
manner provided by law or in the Certificate of Incorporation or By-laws). 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 A
Preferred 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
Stock as set forth herein) for taking any corporate action.
(iv) Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred as provided in paragraph (i) are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
outstanding shall have been paid in full, the Corporation shall not:
(1) 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 A Preferred;
(2) 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 A Preferred, except dividends paid ratably on the Series
A Preferred and all such parity stock 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;
(3) 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 A Preferred, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity
stock 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 A Preferred; or
(4) purchase or otherwise acquire for
consideration any shares of Series A Preferred, or any shares of
stock ranking on a parity with the Series A Preferred, 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
8
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 subparagraph (A) of
this paragraph (iv), purchase or otherwise acquire such shares at such time and
in such manner.
(v) Reacquired Shares. Any shares of Series A Preferred
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.
(vi) 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 shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred unless, prior thereto, the holders of
shares of Series A Preferred shall have received $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 A Liquidation
Preference"). Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series A Preferred unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A 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 Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
A Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series A Preferred and Common Stock, respectively, holders of Series A
Preferred and holders of shares of Common Stock 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 Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Preferred, 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 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
Stock.
9
(C) In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock 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 shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(vii) Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Preferred shall at the same time be similarly exchanged or changed
in 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, into which or
for which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock 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 shares of Series A
Preferred shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that are outstanding immediately prior to such event.
(viii) No Redemption. The shares of Series A Preferred shall
not be redeemable.
(ix) Ranking. The Series A Preferred shall rank junior to all
other series of the Corporation's Preferred Stock as to the payment of dividends
and the distribution of assets, unless the terms of any such series shall
provide otherwise.
(x) Amendment. The Amended and Restated Certificate of
Incorporation of the Corporation shall not be further amended in any manner
which would materially alter or change the powers, preferences or special rights
of the Series A Preferred so as to affect them adversely without the affirmative
vote of the holders of a majority or more of the outstanding shares of Series A
Preferred, voting separately as a class.
(xi) Fractional Shares. Series A Preferred 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 A Preferred.
(d) Preferred Stock.
10
(i) Authorization. Subject to the voting and approval
procedures set forth in the By-laws, the Board of Directors is hereby expressly
granted authority to authorize from time to time in accordance with law the
issuance of the remaining 4,500,000 shares of Preferred Stock, one or more
series of Preferred Stock and with respect to any such series to fix by
resolution or resolutions the numbers, powers, designations, preferences and
relative, participating, optional or other special rights of such series and the
qualifications, limitations or restrictions thereof, including but without
limiting the generality of the foregoing, the following:
(A) entitling the holders thereof to cumulative,
non-cumulative or partially cumulative dividends, or to no dividends;
(B) 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;
(C) 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;
(D) providing for the conversion, at the option of the
holder or of the Corporation or both, of the shares of Preferred Stock into
shares of any other class or classes of capital stock of the Corporation or of
any series of the same or any other class or classes or into property of the
Corporation or into the securities or properties of any other corporation or
person, including provision for adjustment of the conversion rate in such events
as the Board of Directors shall determine, or providing for no conversion;
(E) 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, 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;
(F) lacking voting rights or having limited voting
rights or enjoying general, special or multiple voting rights;
(G) specifying the number of shares constituting that
series and the distinctive designation and stated value of that series;
(H) specifying the limitations and restrictions, if any,
to be effective while any shares of such series are outstanding upon the payment
of dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of any other class or classes
of stock of the Corporation ranking junior to the shares of such series either
as to dividends or upon liquidation, dissolution or winding-up;
11
(I) specifying the conditions or restrictions, if any,
upon the creation of indebtedness of the Corporation or upon the issuance of any
additional stock (including additional shares of such series or of any other
series or of any other class) ranking on a parity with or prior to the shares of
such series as to dividends or distributions of assets upon liquidation,
dissolution or winding-up; and
(J) providing for any other power, preference and
relative, participating, optional or other rights or terms, and the
qualifications, limitations or restrictions thereof, as shall not be
inconsistent with applicable law, this paragraph (d)(J) or any resolution of the
Board of Directors pursuant hereto.
All shares of any one series of Preferred Stock shall be identical
in all respects with the other shares of such series, except that shares of any
one series of Preferred Stock issued at different times may differ as to the
dates from which dividends thereon shall be cumulative. The Board of Directors
may change the powers, designation, preferences, rights, qualifications,
limitations and restrictions of, and number of shares in, any series of
Preferred Stock as to which no shares are issued and outstanding.
(ii) Dividends. 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 the Common Stock with
respect to the same dividend period.
(iii) Liquidation Rights. 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 in accordance with the
respective priorities and preferential amounts (including unpaid cumulative
dividends, if any, and interest thereon, if any) payable with respect thereto,
and among shares of any series of Preferred Stock, ratably among the shares of
such series.
FIFTH: (a) Classification of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors
initially consisting of three directors, the exact number of directors to be not
less than three nor more than fifteen as determined from time to time by
resolution adopted by affirmative vote of a majority of the entire Board of
Directors. The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. Class I directors shall be elected initially for a one-year
term, Class II directors initially for a two-year term and Class III directors
initially for a three-year term. At each succeeding annual meeting of
stockholders beginning in 2006, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class, but in no case
will a decrease in the number of directors shorten the
12
term of any incumbent director. A director shall hold office until the annual
meeting of the year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation or
removal from office. Any vacancy on the Board of Directors may be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director or by stockholders if such vacancy was caused by the
action of stockholders (in which event such vacancy may not be filled by the
directors or a majority thereof).
Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same remaining term as that
of his predecessor.
(b) Vacancies in the Board. Except as expressly provided in a
Certificate of Designation with respect to any Preferred Stock, newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the directors then in office, even if less than a quorum, or by
a sole remaining director, or by stockholders if such vacancy was caused by the
removal of a director by the action of stockholders (in which event such vacancy
may not be filled by the directors or a majority thereof). Any director elected
in accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been duly elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(c) Removal of Directors. Subject to the rights of the holders of
any class or series of Preferred Stock to elect additional directors under
specified circumstances, any director may be removed from office only for cause
upon the affirmative vote of holders of at least 80% of the voting power of the
then outstanding Voting Stock, voting as a single class. A director may not be
removed by the stockholders at a meeting unless the notice of the meeting states
that the purpose, or one of the purposes, of the meeting is removal of the
director.
(d) Amendment to this Article FIFTH. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the voting power of the then outstanding
Voting Stock, voting together as a single class, shall be required to amend,
repeal or adopt any provision inconsistent with this Article FIFTH.
SIXTH: (a) (1) Except as otherwise provided by law or this Certificate of
Incorporation, and subject to any rights of holders of Preferred Stock, the
provisions of this Certificate of Incorporation shall not be modified, revised,
altered or amended, repealed or rescinded in whole or in part, without the
approval of the holders of at least a majority of the voting power of the then
outstanding Voting Stock, voting together as a single class; provided, however,
that with respect to any proposed amendment of this Certificate of Incorporation
which would alter or change the powers, preferences or special rights of the
shares of Class A Common Stock or Class B Common Stock so as to affect them
adversely, the approval of a majority of the
13
votes entitled to be cast by the holders of the shares affected by the proposed
amendment, voting separately as a class, shall be obtained in addition to the
approval of the holders of at least a majority (or such higher percentage as
required by law or this Certificate of Incorporation) of the voting power of the
then outstanding Voting Stock, voting together as a single class as hereinbefore
provided.
(2) Every reference in this Certificate of Incorporation to a
majority or other proportion of shares, or a majority or other proportion of the
votes of shares, of Voting Stock, Common Stock, Class A Common Stock, or Class B
Common Stock shall refer to such majority or other proportion of the votes to
which such shares of Voting Stock, Common Stock, Class A Common Stock or Class B
Common Stock are entitled.
(b) The Board of Directors is expressly empowered to adopt, amend or
repeal the By-laws of the Corporation. Any adoption, amendment or repeal of the
By-laws of the Corporation by the Board of Directors shall require the approval
of a majority of the entire Board of Directors. The stockholders shall also have
power to adopt, amend or repeal the By-laws of the Corporation; provided,
however, that, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least 80% of the voting
power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the By-laws of the Corporation.
(c) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of the then outstanding Voting Stock, voting together as
a single class, shall be required to amend, repeal or adopt any provision
inconsistent with this Article SIXTH.
SEVENTH: (a) Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
(b) Except as otherwise required by law, a special meeting of the
stockholders of the Corporation may be called at any time by the Chairman of the
Board or the Chief Executive Officer or by the Board pursuant to a resolution
adopted by a majority of the then authorized number of directors. Except as
expressly provided in the immediately preceding sentence, any power of
stockholders to call a special meeting is specifically denied. Any special
meeting of the stockholders shall be held on such date, at such time and at such
place within or without the State of Delaware as the Board of Directors or the
officer calling the meeting may designate. At a special meeting of the
stockholders, no business shall be transacted and no corporate action shall be
taken other than that stated in the notice of the meeting.
(c) No business other than that stated in the notice shall be
transacted at any special meeting of stockholders.
14
(d) Advance notice of the proposal of business by stockholders shall
be given in the manner provided in the By-laws of the Corporation, as amended
and in effect from time to time.
(e) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of at least 80% of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to amend, repeal or adopt any provision inconsistent
with this Article Seventh.
EIGHTH: The Corporation elects not to be governed by Section 203 of the
Delaware General Corporation Law.
NINTH: Unless and except to the extent that the By-laws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, provided that such action is
approved in the manner, and otherwise complies with the requirements, set forth
in this Certificate of Incorporation, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ELEVENTH: 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 GCL; or (iv) for any
transaction from which the director derived an improper personal benefit. If the
GCL is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the GCL, as so amended. Any repeal or modification of this provision shall be
prospective only and shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
TWELFTH: The Corporation, to the fullest extent permitted by Section 145
of the GCL, as the same may be amended and supplemented, may indemnify any and
all persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person."
15
3. This Amended and Restated Certificate of Incorporation has been duly
adopted by the Board of Directors of the Corporation and consented to in writing
and authorized by the holders of all of the issued and outstanding stock
entitled to vote thereon.
4. This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with the applicable provisions of Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, GSC Holding Corp. has caused this Amended and Restated
Certificate of Incorporation to be executed by an authorized officer of GSC
Holdings Corp. as of the 27th day of June, 2005
GSC HOLDINGS CORP.
By: /s/ David W. Carlson
----------------------------------
Name: David W. Carlson
Title: Chief Financial Officer
16