Attached files
file | filename |
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10-Q - FORM 10-Q - EASYLINK SERVICES INTERNATIONAL CORP | c93331e10vq.htm |
EX-3.8 - EXHIBIT 3(I).8 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv3w8.htm |
EX-3.1 - EXHIBIT 3(I).1 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv3w1.htm |
EX-3.5 - EXHIBIT 3(I).5 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv3w5.htm |
EX-3.3 - EXHIBIT 3(I).3 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv3w3.htm |
EX-3.2 - EXHIBIT 3(I).2 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv3w2.htm |
EX-3.6 - EXHIBIT 3(I).6 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv3w6.htm |
EX-3.4 - EXHIBIT 3(I).4 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv3w4.htm |
EX-32.1 - EXHIBIT 32.1 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv32w1.htm |
EX-32.2 - EXHIBIT 32.2 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv32w2.htm |
EX-31.1 - EXHIBIT 31.1 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv31w1.htm |
EX-31.2 - EXHIBIT 31.2 - EASYLINK SERVICES INTERNATIONAL CORP | c93331exv31w2.htm |
EXHIBIT
3(i).7
State of Delaware
Secretary of State
Division of Corporations
Delivered 09:36 AM 05/18/2009
Filed 09:10 AM 05/18/2009
SRV 090484212 2279234 FILE
Secretary of State
Division of Corporations
Delivered 09:36 AM 05/18/2009
Filed 09:10 AM 05/18/2009
SRV 090484212 2279234 FILE
Certificate of the Powers, Designations, Preferences and Relative, Participating, Optional
and Other Special Rights of the
and Other Special Rights of the
Series E Redeemable 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.
the 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 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 unanimous
written consent dated May 18, 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 its Certificate of Incorporation, the Board of
Directors of the Corporation hereby creates a series of Preferred Stock of the Corporation to
consist of 10,000 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:
1. Designation and Number. The distinctive designation of the series shall be Series
E Redeemable Preferred Stock (the Series E Preferred); the number of shares of Series E
Preferred which the Corporation is authorized to issue shall be 10,000, which number may be
increased (but not above the total number of authorized shares of Preferred stock of the
Corporation) or decreased (but not below the number of shares then outstanding) from time to time
by the Board of Directors of the Corporation.
2. Definitions. For purposes of this Certificate of Designation, the following terms
shall have the meanings indicated:
(a) The term Applicable Dividend Rate shall mean the following rate per annum during the
periods specified below or any fraction thereof:
Period Beginning May 19, | and Ending May 18, | Rate | ||
2009 | 2010 | 10% | ||
2010 | 2011 | 12% | ||
2011 | 2012 | 14% |
Commencing May 19, 2012, the Applicable Dividend Rate shall be 16% per annum. However, if on any
Dividend Payment Date (as such term is defined below) the Corporation shall fail to make the
complete dividend payment due on such date either in cash (pursuant to Section 3(a) below) or in
kind (pursuant to Section 3(b) below), the Applicable Dividend Rate that is then applicable shall
be increased by 3% until the delinquent dividend payment has been paid in full, either in cash or
in kind. For purposes of clarity, the additional 3% dividend non-payment penalty shall continue to
apply to the Applicable Dividend Rate, as it increases each year as set forth above, from the date
on which the non-payment occurred until the delinquent dividend has been paid in full, either in
cash or in kind.
(b) The term Junior Stock means the Class A Common Stock, par value $.01 per share (the
Common Stock), the Class B Common Stock, par value $.01 per share, and all other classes and
series of preferred or special stock other than the Series C Preferred, which shall be subordinate
to the Series E Preferred with respect to the right of the holders thereof to receive dividends or
to participate in the assets of the Corporation distributable to stockholders upon any liquidation,
dissolution or winding-up of the Corporation.
(c) The term Senior Facility means a senior indebtedness facility deemed suitable by the
Company in its sole discretion, in a minimum amount of $30 million.
(d) The term Series C Preferred means the Series C Convertible Redeemable Preferred Stock,
par value $.01 per share, of the Corporation.
(e) The term Stated Value for each share of Series E Preferred shall initially equal
$1,000.
-2-
3. Dividends.
(a) The holders of the Series E Preferred shall be entitled to receive cumulative dividends
at, but not exceeding, a rate equal to the Applicable Dividend Rate per share per annum, payable
annually on the 19th day of May in each year (the Dividend Payment Date), such
payments commencing with the 19th day of May, 2010, in cash (the Cash
Dividends). All dividends on the Series E Preferred shall be calculated on the basis of a
365-day year, shall accrue daily commencing on the date on which the Series E Preferred are first
issued, and shall be deemed to accrue from such date whether or not earned or declared and whether
or not there are profits, surplus or other funds of the Corporation legally available for the
payment of dividends.
(b) To the extent any amount of a Cash Dividend due on any Dividend Payment Date would be
payable under clause (a) above but (i) is not payable because funds are not legally available
therefor or because payment is not permitted by the Senior Facility, or (ii) is not paid by the
Corporation for any reason other than pursuant to clause (i) above (in either case, such amount,
the Non-Payable Portion), the Non-Payable Portion, divided by the number of shares Series
E Preferred then outstanding, shall accrue and be cumulative, and shall automatically be added to
the Stated Value per share of each share of Series E Preferred held by such holder as of such
Dividend Payment Date. For purposes of clarity, payment in kind of any Non-Payable Portion
pursuant to this Section 3(b) shall constitute a dividend payment in complete satisfaction of the
Corporations obligation to make dividend payments in cash or in kind on Series E Preferred.
(c) So long as any Series E Preferred is outstanding, no dividends whatever shall be paid or
declared, nor shall any distribution be made, on any Junior Stock, other than a dividend or
distribution payable in Junior Stock or warrants or other rights to purchase Junior Stock, unless
all dividends on Series E Preferred for all past quarterly dividend periods shall have been paid or
declared.
4. Liquidation Preference. The Series E Preferred shall be preferred as to assets
over the Junior Stock so that, in the event of any liquidation, dissolution or winding up of the
Corporation, the holders of Series E Preferred shall be entitled to have set apart for them or to
be paid out of the assets of the Corporation before any distribution is made to or set apart for
the holders of the Junior Stock, upon liquidation, dissolution or winding up, an amount in cash
equal to, and in no event more than, the Stated Value per share of Series E Preferred plus a sum of
money equal to all dividends accrued and unpaid thereon to the date that payment is made available
to the holders of Series E Preferred. The Series E Preferred Stock shall be junior to the Series C
Convertible Redeemable Preferred Stock, the holders of which shall be entitled to have set apart
for them or to be paid out of the assets of the Corporation, upon any such liquidation, dissolution
or winding up, before any distribution is made to or set apart for the holders of the Series E
Preferred, an amount in cash equal to, and in no event more than, the amount specified in the
Certificate of the Powers, Designations, Preferences and Relative, Participating, Optional and
Other Special Rights of the Series C Convertible Redeemable Preferred Stock. If, upon such
liquidation, dissolution or winding-up of the Corporation, the assets of the Corporation available
for distribution to the holders of its stock shall be insufficient to permit the distribution in
full of the amounts receivable as aforesaid by the holders of Series E Preferred, then all such
assets of the Corporation shall be distributed ratably among the holders of Series E Preferred in
proportion to the amounts which each would have been entitled to receive if such assets were
sufficient to permit distribution in full as aforesaid. Neither the consolidation nor merger of
the Corporation nor the sale, lease or transfer by the Corporation of all or any part of its assets
shall be deemed to be a liquidation, dissolution or winding-up of the Corporation for the purposes
of this Section 4.
-3-
5. Voting Rights. Except as otherwise required by law and except as set forth in
Section 7 hereof, a holder of Series E Preferred shall not be entitled to vote on any matter upon
which stockholders of Corporation are entitled to vote or consent, or to notice of any stockholders
meeting or any other notice accorded stockholders of the Corporation.
6. Redemption of the Series E Preferred.
(a) Subject to the provisions of Section 6(b) hereof, the Corporation, at its option, may
redeem all or, from time to time any part, of the Series E Preferred at the redemption price of the
Stated Value per share, plus an amount in cash equal to all dividends accrued but unpaid thereon to
the date of redemption.
(b) Not less than five days nor more than 45 days prior to the date fixed for any redemption
of Series E Preferred, a notice specifying the time and place thereof and the redemption price
shall be given by mail to the holders of record of the shares to be redeemed at their respective
addresses as shown on the stock records of the Corporation. If less than all of the shares of
Series E Preferred then outstanding are being redeemed, the notice of redemption mailed to each
holder of shares of Series E Preferred to be redeemed shall identify the shares of Series E
Preferred held by such holder to be redeemed. No failure to mail such notice nor any defect
therein or in the mailing thereof shall affect the validity of the proceedings for such redemption
except as to a holder (i) to whom the Corporation has failed to mail such notice or (ii) whose
notice was defective.
(c) From and after the date fixed in such notice as the date of redemption (unless default be
made by the Corporation in providing moneys for the payment of the redemption price), all dividends
on shares of Series E Preferred thereby called for redemption shall cease to accrue, and all rights
of the holders thereof as stockholders of the Corporation (except the right to receive payment of
the redemption price) shall cease.
(d) From and after the date specified for redemption, the Corporation shall, at the place
specified in the notice of redemption, upon presentation and surrender to the Corporation by the
holder thereof of one or more certificates representing shares of Series E Preferred to be
redeemed, deliver or cause to be delivered to or upon the written order of such holder a sum in
cash equal to the redemption price of the shares of such holder to be redeemed, together with, if
the certificate(s) presented and surrendered by such holder represent a greater number of shares
than the number of shares to be redeemed from such holder, one or more new certificates registered
in the name of such holder and representing the shares of Series E Preferred not redeemed.
(e) Shares of Series E Preferred redeemed pursuant to this Section 6 hereof shall thereupon
be deemed retired and shall resume the status of authorized but unissued shares of
Preferred Stock (without serial designation) and may, subject to the provisions hereof, be
reissued as shares of Series E Preferred or shares of any other series of Preferred Stock as
determined by the Board of Directors of the Corporation.
-4-
7. Special Consent Rights. For as long as any shares of Series E Preferred are
outstanding, the Corporation shall not take any of the following actions without the prior
affirmative approval of the majority of the shares of Series E Preferred then outstanding:
(a) Amend, alter or repeal this Certificate of Designations in any manner that is adverse to
the Series E Preferred, whether by amendment, merger, amalgamation, consolidation or otherwise; and
(b) Issue or authorize the issuance of any additional shares of the Series C Preferred.
8. General.
(a) If any other class or series of preferred or special stock or series of Preferred Stock,
whether ranking prior to or on a parity with or junior to Series E Preferred as to dividends, shall
be created, either by or pursuant to authority granted in the Certificate of Incorporation (as the
same may hereafter be amended), nothing in this Certificate of Designations (except as provided in
Section 7 above) shall prevent the holders of any such other class or series of preferred or
special stock or series of Preferred Stock from being given any powers, preferences and relative,
participating, optional and other special rights authorized by law and the Certificate of
Incorporation (as the same may hereafter be amended); provided, however, that Series E Preferred
shall have priority and preference in liquidation and the receipt of dividends over the Junior
Stock.
(b) The section headings contained in this Certificate of Designations are for reference
purposes only and shall not affect in any way the meaning of this Certificate of Designations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
-5-
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 18th day of May, 2009.
EASYLINK SERVICES INTERNATIONAL CORPORATION |
||||
By: | /s/ Thomas J. Stallings | |||
Thomas J. Stallings | ||||
Chief Executive Officer |
ATTEST: |
||||
By: | /s/ Glen E. Shipley | |||
Glen E. Shipley | ||||