<PAGE>
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TCI SATELLITE ENTERTAINMENT, INC.
TCI Satellite Entertainment, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
(1) The name of the Corporation is TCI Satellite Entertainment, Inc.
The original Certificate of Incorporation of the Corporation was filed on
November 1, 1996. The name under which the Corporation was originally
incorporated is TCI Satellite Entertainment, Inc.
(2) This Restated Certificate of Incorporation restates and amends
the Certificate of Incorporation of the Corporation.
(3) Pursuant to Sections 242 and 245 of the General Corporation Law
of the State of Delaware, the text of the Certificate of Incorporation is
hereby restated to read in its entirety as follows:
ARTICLE I
NAME
The name of the corporation is Liberty Satellite & Technology, Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE
The location of the Corporation's registered office in the State of
Delaware is the office of The Prentice-Hall Corporation System, Inc., 1013
Centre Road, Wilmington, New Castle, Delaware 19805, and the name of its
registered agent at such address is The Prentice-Hall Corporation System, Inc.
ARTICLE III
PURPOSE
<PAGE>
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
AUTHORIZED STOCK
The total number of shares of capital stock which the Corporation shall
have authority to issue is two hundred twenty million (220,000,000) shares,
which shall be divided into the following classes:
(a) two hundred fifteen million (215,000,000) shares shall be of a
class designated Common Stock, par value $1.00 per share ("Common Stock"), such
class to be divided into series as provided in Section A of this Article IV; and
(b) five million (5,000,000) shares shall be of a class designated
Preferred Stock, par value $.01 per share ("Preferred Stock"), such class to be
issuable in series as provided in Section B of this Article IV.
The description of the Common Stock and the Preferred Stock of the
Corporation, and the relative rights, preferences and limitations thereof, or
the method of fixing and establishing the same, are as hereinafter in this
Article IV set forth:
Section A
Series A Common Stock And Series B Common Stock
One hundred eighty-five million (185,000,000) shares of Common Stock shall
be of a series designated as Series A Common Stock (the "Series A Common Stock")
and thirty million (30,000,000) shares of Common Stock shall be of a series
designated as Series B Common Stock (the "Series B Common Stock").
Each share of Series A Common Stock and each share of Series B Common
Stock shall, except as otherwise provided in this Section A, be identical in all
respects and shall have equal rights, powers and privileges.
1. Voting Rights.
Holders of Series A Common Stock shall be entitled to one vote for each
share of such stock held, and holders of Series B Common Stock shall be entitled
to ten votes for each share of such stock held, on all matters presented to such
stockholders. Except as may otherwise be required by the laws of the State of
Delaware or, with
<PAGE>
respect to any series of Preferred Stock, in any resolution or resolutions
providing for the establishment of such series pursuant to authority vested in
the Board of Directors by Article IV, Section B, of this Restated Certificate of
Incorporation (as it may from time to time hereafter be amended or restated, the
"Certificate"), the holders of outstanding shares of Series A Common Stock, the
holders of outstanding shares of Series B Common Stock and the holders of
outstanding shares of each series of Preferred Stock entitled to vote thereon,
if any, shall vote as one class with respect to the election of directors and
with respect to all other matters to be voted on by stockholders of the
Corporation (including, without limitation, any proposed amendment to this
Certificate that would increase the number of authorized shares of Common Stock
or of Series A Common Stock or Series B Common Stock or of any other class or
series of stock or decrease the number of authorized shares of any class or
series of stock (but not below the number of shares thereof then outstanding)),
and no separate vote or consent of the holders of shares of Series A Common
Stock, the holders of shares of Series B Common Stock or the holders of shares
of any such series of Preferred Stock shall be required for the approval of any
such matter.
2. Conversion Rights.
Each share of Series B Common Stock shall be convertible, at the option of
the holder thereof, into one share of Series A Common Stock. Any such conversion
may be effected by any holder of Series B Common Stock by surrendering such
holder's certificate or certificates for the Series B Common Stock to be
converted, duly endorsed, at the office of the Corporation or any transfer agent
for the Series B Common Stock, together with a written notice to the Corporation
at such office that such holder elects to convert all or a specified number of
shares of Series B Common Stock represented by such certificate and stating the
name or names in which such holder desires the certificate or certificates for
Series A Common Stock to be issued. If so required by the Corporation, any
certificate for shares surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the holder of such shares or the duly authorized representative of such
holder. Promptly thereafter, the Corporation shall issue and deliver to such
holder or such holder's nominee or nominees, a certificate or certificates for
the number of shares of Series A Common Stock to which such holder shall be
entitled as herein provided. Such conversion shall be deemed to have been made
at the close of business on the date of receipt by the Corporation or any such
transfer agent of the certificate or certificates, notice and, if required,
instruments of transfer referred to above, and the person or persons entitled to
receive the Series A Common Stock issuable on such conversion shall be treated
for all purposes as the record holder or holders of such Series A Common Stock
on that date. A number of shares of Series A Common Stock equal to the number of
shares of Series B Common Stock outstanding from time to time shall be set aside
and reserved for issuance upon conversion of shares of Series B Common Stock.
Shares of Series B Common Stock that have been converted hereunder shall become
treasury shares that may be issued or retired by
<PAGE>
resolution of the Board of Directors. Shares of Series A Common Stock shall not
be convertible into shares of Series B Common Stock.
3. Dividends.
Subject to paragraph 4 of this Section A, whenever a dividend is paid to
the holders of Series A Common Stock, the Corporation also shall pay to the
holders of Series B Common Stock a dividend per share equal to the dividend per
share paid to the holders of the Series A Common Stock, and whenever a dividend
is paid to the holders of Series B Common Stock, the Corporation also shall pay
to the holders of the Series A Common Stock a dividend per share equal to the
dividend per share paid to the holders of the Series B Common Stock. Dividends
shall be payable only as and when declared by the Board of Directors of the
Corporation out of assets of the Corporation legally available therefor.
4. Share Distributions.
If at any time a distribution paid in Series A Common Stock or Series B
Common Stock or any other securities of the Corporation or of any other
corporation, partnership, limited liability company, trust or other legal entity
("Person") (hereinafter sometimes called a "share distribution") is to be made
with respect to the Series A Common Stock or Series B Common Stock, such share
distribution may be declared and paid only as follows:
(a) a share distribution consisting of shares of Series A Common
Stock (or Convertible Securities that are convertible into, exchangeable for or
evidence the right to purchase shares of Series A Common Stock) to holders of
Series A Common Stock and Series B Common Stock, on an equal per share basis; or
consisting of shares of Series B Common Stock (or Convertible Securities that
are convertible into, exchangeable for or evidence the right to purchase shares
of Series B Common Stock) to holders of Series A Common Stock and Series B
Common Stock, on an equal per share basis; or consisting of shares of Series A
Common Stock (or Convertible Securities that are convertible into, exchangeable
for or evidence the right to purchase shares of Series A Common Stock) to
holders of Series A Common Stock and, on an equal per share basis, shares of
Series B Common Stock (or Convertible Securities that are convertible into,
exchangeable for or evidence the right to purchase shares of Series B Common
Stock) to holders of Series B Common Stock; and
(b) a share distribution consisting of shares of any class or series
of securities of the Corporation or any other Person other than Series A Common
Stock or Series B Common Stock (or Convertible Securities that are convertible
into, exchangeable for or evidence the right to purchase shares of Series A
Common Stock or Series B Common Stock), either on the basis of a distribution of
identical securities, on an equal per share basis, to holders of Series A Common
Stock and Series B Common Stock or on the basis of a distribution of one class
or series of securities to holders of Series A Common Stock and another class or
series of securities to
<PAGE>
holders of Series B Common Stock, provided that the securities so distributed
(and, if applicable, the securities into which the distributed securities are
convertible, or for which they are exchangeable, or which the distributed
securities evidence the right to purchase) do not differ in any respect other
than their relative voting rights and related differences in designation,
conversion and share distribution provisions, with holders of shares of Series B
Common Stock receiving the class or series having the higher relative voting
rights (without regard to whether such rights differ to a greater or lesser
extent than the corresponding differences in voting rights and related
differences in designation, conversion and share distribution provisions between
the Series A Common Stock and the Series B Common Stock), provided that if the
securities so distributed constitute capital stock of a Subsidiary of the
Corporation, such rights shall not differ to a greater extent than the
corresponding differences in voting rights, designation, conversion and share
distribution provisions between the Series A Common Stock and the Series B
Common Stock, and provided in each case that such distribution is otherwise made
on an equal per share basis.
As used herein, the term "Convertible Securities" means any securities of
the Corporation (other than any series of Common Stock) that are convertible
into, exchangeable for or evidence to right to purchase any shares of any series
of Common Stock, whether upon conversion, exercise, exchange, pursuant to
anti-dilution provisions of such securities or otherwise. As used herein, the
term "Subsidiary" means, when used with respect to any Person, (i) a corporation
in which such Person and/or one or more Subsidiaries of such Person, directly or
indirectly, owns capital stock having a majority of the voting power of such
corporation's capital stock to elect directors under ordinary circumstances, and
(ii) any other Person (other than a corporation) in which such Person and/or one
or more Subsidiaries of such Person, directly or indirectly, has (x) a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the members of the governing body of such first-named Person.
The Corporation shall not reclassify, subdivide or combine the Series A
Common Stock without reclassifying, subdividing or combining the Series B Common
Stock, on an equal per share basis, and the Corporation shall not reclassify,
subdivide or combine the Series B Common Stock without reclassifying,
subdividing or combining the Series A Common Stock, on an equal per share basis.
5. Liquidation and Dissolution.
In the event of a liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and liabilities of the Corporation and subject to the prior
payment in full of the preferential amounts to which any series of Preferred
Stock is entitled, the holders of shares of Series A Common Stock and the
holders of shares of Series B Common
<PAGE>
Stock shall share equally, on a share for share basis, in the assets of the
Corporation remaining for distribution to its common stockholders. Neither the
consolidation or merger of the Corporation with or into any other Person or
Persons nor the sale, transfer or lease of all or substantially all of the
assets of the Corporation shall itself be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 5.
Section B
Preferred Stock
The Preferred Stock may be divided and issued in one or more series from
time to time, with such powers, designations, preferences and relative,
participating, optional or other rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in a resolution or
resolutions providing for the issue of each such series adopted by the Board of
Directors (a "Preferred Stock Designation"). The Board of Directors, in the
Preferred Stock Designation with respect to a series of Preferred Stock (a copy
of which shall be filed and recorded as required by law), shall fix the rights,
powers and preferences of such series, including, but not limited to, the
following:
(i) the distinctive serial designations and the division of such
shares into series and the number of shares of a particular series, which
may be increased or decreased, but not below the number of shares thereof
then outstanding, by a certificate made, signed, filed and recorded as
required by law;
(ii) the dividend rate or amounts, if any, for the particular
series, the date or dates from which dividends on all shares of such
series shall be cumulative, if dividends on stock of the particular series
shall be cumulative, and the relative rights of priority, if any, or
participation, if any, with respect to payment of dividends on shares of
such series;
(iii) the rights of the shares of each series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of
shares of each series;
(iv) the right, if any, of the holders of a particular series to
convert or exchange such stock into or for other classes or series of a
class of stock or indebtedness of the Corporation or of another Person,
and the terms and conditions of such conversion or exchange, including
provision for the adjustment of the conversion or exchange rate in such
events as the Board of Directors may determine;
(v) the voting rights, if any, of the holders of a particular
series;
<PAGE>
(vi) the terms and conditions, if any, for the Corporation to
purchase or redeem shares of a particular series; and
(vii) any other relative rights, powers, preferences and limitations
of a particular series.
The Board of Directors is authorized to exercise its authority with
respect to fixing and designating various series of the Preferred Stock and
determining the relative rights, powers and preferences thereof to the full
extent permitted by applicable law, subject to any stockholder vote that may be
required by this Certificate. All shares of any one series of the Preferred
Stock shall be alike in every particular. Except to the extent otherwise
expressly provided in the Preferred Stock Designation for a series of Preferred
Stock, the holders of shares of such series shall have no voting rights except
as may be required by the laws of the State of Delaware. Further, unless
otherwise expressly provided in the Preferred Stock Designation for a series of
Preferred Stock, no consent or vote of the holders of shares of Preferred Stock
or any series thereof shall be required for any amendment to this Certificate
that would increase the number of authorized shares of Preferred Stock or the
number of authorized shares of any series thereof or decrease the number of
authorized shares of Preferred Stock or the number of authorized shares of any
series thereof (but not below the number of authorized shares of Preferred Stock
or such series, as the case may be, then outstanding).
Except as may be provided by the Board of Directors in a Preferred Stock
Designation or by law, shares of any series of Preferred Stock that have been
redeemed (whether through the operation of a sinking fund or otherwise) or
purchased by the Corporation, or which, if convertible or exchangeable, have
been converted into or exchanged for shares of stock of any other class or
classes shall have the status of authorized and unissued shares of Preferred
Stock and may be reissued as a part of the series of which they were originally
a part or may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors or as part of any
other series of Preferred Stock.
Section C
Unclaimed Dividends
Any and all right, title, interest and claim in or to any dividends
declared by the Corporation, whether in cash, stock or otherwise, which are
unclaimed for a period of four years after the close of business on the payment
date, shall be and be deemed extinguished and abandoned; and such unclaimed
dividends in the possession of the Corporation, its transfer agent or other
agents or depositories, shall at such time become the absolute property of the
Corporation, free and clear of any and all claims of any Persons whatsoever.
<PAGE>
ARTICLE V
DIRECTORS
Section A
Number of Directors
The governing body of the Corporation shall be a Board of Directors.
Subject to any rights of the holders of any series of Preferred Stock to elect
additional directors, the number of directors shall not be less than three (3)
and the exact number of directors shall be fixed by the Board of Directors by
resolution. Election of directors need not be by written ballot.
Section B
Newly Created Directorships and Vacancies
Subject to the rights of holders of any series of Preferred Stock,
vacancies on the Board of Directors resulting from death, resignation, removal,
disqualification or other cause, and newly created directorships resulting from
any increase in the number of directors on the Board of Directors, shall be
filled by the affirmative vote of a majority of the remaining directors then in
office (even though less than a quorum) or by the sole remaining director. Any
director elected in accordance with the preceding sentence shall hold office
until such director's successor shall have been elected and qualified. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director, except as may be provided in a
Preferred Stock Designation with respect to any additional director elected by
the holders of the applicable series of Preferred Stock.
Section C
Limitation On Liability and Indemnification
1. Limitation On Liability.
To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or may hereafter be amended, a director of the Corporation shall
not be liable to the Corporation or any of its stockholders for monetary damages
for breach of fiduciary duty as a director. Any repeal or modification of this
paragraph 1 shall be prospective only and shall not adversely affect any
limitation, right or protection of a director of the Corporation existing at the
time of such repeal or modification.
<PAGE>
2. Indemnification.
(a) Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such person. Such right of
indemnification shall inure whether or not the claim asserted is based on
matters which antedate the adoption of this Section C. The Corporation shall be
required to indemnify or make advances to a person in connection with a
proceeding (or part thereof) initiated by such person only if the proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation.
(b) Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred by a director or officer in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified under this paragraph or otherwise.
(c) Claims. If a claim for indemnification or payment of expenses
under this paragraph is not paid in full within 60 days after a written claim
therefor has been received by the Corporation, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification or payment of expenses under
applicable law.
(d) Non-Exclusivity of Rights. The rights conferred on any person by
this paragraph shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of this Certificate, the
Bylaws, agreement, vote of stockholders or resolution of disinterested directors
or otherwise.
(e) Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or
<PAGE>
nonprofit entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture, trust,
enterprise or nonprofit entity.
3. Amendment or Repeal.
Any amendment, modification or repeal of the foregoing provisions of this
Section C shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
amendment, modification or repeal.
Section D
Amendment Of Bylaws
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors, by action taken by the
affirmative vote of not less than 75% of the members of the Board of Directors
then in office, is hereby expressly authorized and empowered to adopt, amend or
repeal any provision of the Bylaws of this Corporation.
ARTICLE VI
TERM
The term of existence of this Corporation shall be perpetual.
ARTICLE VII
STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be assessable. It shall be
issued as fully paid, and the private property of the stockholders shall not be
liable for the debts, obligations or liabilities of this Corporation. This
Certificate shall not be subject to amendment in this respect.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS
Section A
<PAGE>
Annual and Special Meetings
Subject to the rights of the holders of any series of Preferred Stock,
stockholder action may be taken only at an annual or special meeting. Except as
otherwise provided in the terms of any series of Preferred Stock or unless
otherwise prescribed by law or by another provision of this Certificate, special
meetings of the stockholders of the Corporation, for any purpose or purposes,
shall be called by the Secretary of the Corporation (i) upon the written request
of the holders of not less than 66-2/3% of the total voting power of the
outstanding Voting Securities (as hereinafter defined) or (ii) at the request of
at least 75% of the members of the Board of Directors then in office. The term
"Voting Securities" shall include the Series A Common Stock, the Series B Common
Stock and any series of Preferred Stock entitled to vote with the holders of
Common Stock generally upon all matters that may be submitted to a vote of
stockholders at any annual meeting or special meeting thereof.
Section B
Action Without a Meeting
Except as otherwise provided in the terms of any series of Preferred
Stock, no action required to be taken or which may be taken at any annual
meeting or special meeting of stockholders may be taken without a meeting, and
the power of stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
ARTICLE IX
ACTIONS REQUIRING SUPERMAJORITY STOCKHOLDER VOTE
Subject to the rights of the holders of any series of Preferred Stock, the
affirmative vote of the holders of at least 66-2/3% of the total voting power of
the then outstanding Voting Securities (as defined in Section A of Article VIII
of this Certificate), voting together as a single class at a meeting
specifically called for such purpose, shall be required in order for the
Corporation to take any action to authorize:
(a) the amendment, alteration or repeal of any provision of this
Certificate or the addition or insertion of other provisions herein;
(b) the adoption, amendment or repeal of any provision of the Bylaws
of the Corporation; provided, however, that this clause (b) shall not apply to,
and no vote of the stockholders of the Corporation shall be required to
authorize, the adoption, amendment or repeal of any provision of the Bylaws of
the Corporation by the Board of
<PAGE>
Directors in accordance with the power conferred upon it pursuant to Section F
of Article V of this Certificate;
(c) the merger or consolidation of this Corporation with or into any
other corporation; provided, however, that this clause (c) shall not apply to
any merger or consolidation (i) as to which the laws of the State of Delaware,
as then in effect, do not require the consent of this Corporation's
stockholders, or (ii) which at least 75% of the members of the Board of
Directors then in office have approved;
(d) the sale, lease or exchange of all, or substantially all, of the
property and assets of the Corporation; or
(e) the dissolution of the Corporation.
All rights at any time conferred upon the stockholders of the Corporation
pursuant to this Certificate are granted subject to the provisions of this
Article IX.
ARTICLE X
CERTAIN COMPROMISES OR ARRANGEMENTS
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for the Corporation under Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned has signed this Restated Certificate of
Incorporation this 15th day of August, 2000.
LIBERTY SATELLITE & TECHNOLOGY, INC.
/s/ Carl E. Vogel
--------------------------------------------
Name: Carl E. Vogel
Title: Chief Executive Officer and President
ATTEST:
By: /s/ Pamela J. Strauss
---------------------
Name: Pamela J. Strauss
Title: Secretary
