RESTATED
CERTIFICATE OF INCORPORATION
OF
MOTIENT CORPORATION
MOTIENT CORPORATION, a corporation organized and existing under and by
virtue of the Delaware General Corporation Law (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is MOTIENT CORPORATION; it was
originally incorporated under the name "American Mobile Satellite
Consortium, Inc.," and its original Certificate of Incorporation was filed
on May 3, 1988 and renamed "American Mobile Satellite Corporation" in its
Certificate of Incorporation.
2. This Restated Certificate of Incorporation, the entirety of which
is set forth below, has been duly adopted in accordance with Section 245 of
the Delaware General Corporation Law, only restates and integrates and does
not further amend the provisions of the Corporation's certificate of
incorporation as heretofore amended or supplemented, and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
FIRST: The name of the Corporation is MOTIENT CORPORATION.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, and the name of its registered agent at
that address is The Corporation Trust Company.
THIRD: 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 the State of Delaware, including specifically to act as the registered
agent of its wholly owned subsidiaries.
FOURTH:
A. Authorized Capital Stock. The total number of shares of all classes of
stock which the Corporation shall be authorized to issue shall be one hundred
fifty million two hundred thousand (150,200,000) shares. One hundred fifty
million (150,000,000) of said shares shall be of a par value of $.01 per share
and shall be designated common stock ("Common Stock") and two hundred thousand
(200,000) of said shares shall be of a par value of $.01 per share and shall be
designated Series Preferred Stock.
B. Series Preferred Stock. The Series Preferred Stock may be issued from
time to time by the board of directors as herein provided in one or more series.
The designations, relative rights, preferences and limitations with respect to
the Series Preferred Stock, and with respect to the shares of each series
thereof, may, to the extent permitted by law, be similar to or may differ from
those of any other series. The board of directors of the Corporation is hereby
expressly granted authority, subject to the provision of this Article FOURTH, to
issue from time to time Series Preferred Stock in one or more series, and to fix
from time to time before issuance thereof, by filing of a certificate pursuant
to the General Corporation Law of the State of Delaware, the number of shares in
each such series, and all designations, relative rights (including the right, to
the extent permitted by law, to convert into shares of any class or into shares
of any series of any class), preferences and limitations of the shares in each
such series, including, but without limiting the generality of the foregoing,
the following:
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1. The number of shares to constitute such series (which number may at
any time, or from time to time, be increased or decreased by the board of
directors, notwithstanding that shares of the series may be outstanding at
the time of such increase or decrease, unless the board of directors shall
have otherwise provided in creating such series) and the distinctive
designation thereof;
2. The dividend rate on the shares of such series, whether or not
dividends on the shares of such series shall be cumulative and the date or
dates, if any, from which dividends thereon shall be cumulative;
3. Whether or not the shares of such series shall be redeemable, and,
if redeemable, the date or dates upon or after which they shall be
redeemable and the amount or amounts per share payable thereon in the case
of the redemption thereof, which amount may vary at different redemption
dates or otherwise as permitted by law;
4. The right, if any, of holders of shares of such series to convert
the same into, or exchange the same for, shares of Common Stock or other
securities as permitted by law, and the terms and conditions of such
conversion or exchange, as well as provisions for adjustment of the
conversion rate in such events as the board of directors shall determine;
5. The amount per share payable on the shares of such series upon the
voluntary and involuntary liquidation, dissolution or winding up of the
Corporation;
6. Whether the holders of shares of such series shall have voting
power, full or limited, in addition to the voting powers provided by law,
and, in case additional voting powers are accorded, to fix the extent
thereof; and
7. Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions on such rights and privileges
of such series, provided, however, that no such rights, privileges,
qualifications, limitations or restrictions shall be in conflict with the
Certificate of Incorporation of the Corporation or with the resolution or
resolutions adopted by the board of directors providing for the issue of
any series of which there are shares then outstanding.
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C. Voting.
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1. On all matters upon which holders of Common Stock are entitled or
permitted to vote, every holder of Common Stock shall be entitled to one
(1) vote in person or by proxy for each share of Common Stock standing in
such holder's name on the transfer books of the Corporation.
2. Except as otherwise specifically provided in the certificate filed
pursuant to law with respect to any series of Series Preferred Stock or as
otherwise provided by law, the Series Preferred Stock shall not have any
right to vote on any matters submitted to the stockholders of the
Corporation, including, without limitation, the election of directors. In
all instances in which voting rights are granted to Series Preferred Stock
or any series thereof, such Series Preferred Stock or series shall vote as
provided in the certificate filed pursuant to law with respect to any
series of Series Preferred Stock or as otherwise provided by law.
D. Dividends. The holders of Common Stock shall be entitled to receive
dividends and distributions of the Corporation when and as declared by the board
of directors out of funds legally available therefor. Dividends on the
outstanding Series Preferred Stock of each series shall be declared and paid or
set apart for payment before any dividends shall be declared and paid or set
apart for payment on the Common Stock with respect to the same dividend period.
Dividends on any shares of Series Preferred Stock shall be cumulative only if
and to the extent set forth in a certificate filed pursuant to law. After
dividends on all shares of Series Preferred Stock (including cumulative
dividends if and to the extent any such shares shall be entitled thereto) shall
have been declared and paid or set apart for payment with respect to any
dividend period, then and not otherwise as long as any shares of Series
Preferred Stock shall remain outstanding, dividends may be declared and paid or
set apart for payment with respect to the same dividend period on the Common
Stock out of the assets or funds of the Corporation legally available therefor.
E. Liquidation, Dissolution or Winding Up. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
each series of Series Preferred Stock shall have preference and priority over
the Common Stock for payment of the amount to which each outstanding series of
Series Preferred Stock shall be entitled in accordance with the provisions
thereof and each holder of Series Preferred Stock shall be entitled to be paid
in full such amount, or have a sum sufficient for the payment in full set aside,
before any payments shall be made to the holders of the Common Stock. If upon
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation or the proceeds thereof, distributable among the holders of the
shares of all series of Series Preferred Stock shall be insufficient to pay in
full the preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributed among such holders ratably in accordance with the
respective amounts which would be payable if all amounts payable thereof were
paid in full. After the holders of the Series Preferred Stock of each series
shall have been paid in full the amounts to which they respectively shall be
entitled, or a sum sufficient for the payment in full set aside, the remaining
net assets of the Corporation, after payment or provision for payment of the
debts of the Corporation, shall be distributed pro rata to the holders of the
Common Stock, to the exclusion of the holders of Preferred Stock. A
consolidation or merger of the Corporation with or into another corporation or
corporations, or a sale, whether for cash, shares of stock, securities or
properties, of all or substantially all of the assets of the Corporation, shall
not be deemed or construed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this Article FOURTH.
F. Redemption of Series Preferred Stock. In the event that Series Preferred
Stock of any series shall be made redeemable as provided in subsection B.3 of
this Article FOURTH, the Corporation, at the option of the board of directors,
may redeem at any time or times, and from time to time, all or any part of any
one or more series of Series Preferred Stock outstanding by paying for each
share the then applicable redemption price fixed by the board of directors as
provided herein, plus an amount equal to accrued and unpaid dividends to the
date fixed for redemption, upon such notice and terms as provided in the
certificates filed pursuant to law with respect to such series of Series
Preferred Stock.
FIFTH: At all elections of directors of the Corporation, each holder of
Common Stock shall be entitled to any many votes as shall equal the number of
votes which (except for such provision as to cumulative voting) such holder
would be entitled to cast for the election of directors multiplied by the number
of directors to be elected, and such holder may cast all of such votes for a
single director or may distribute such votes among the number of directors to be
voted for, or for any two or more of them as such holder may see fit.
The number of directors shall be such number as from time to time shall be
fixed by, or in the manner provided in, the Bylaws of the Corporation; provided,
that no decrease in the number of directors shall have the effect of shortening
the term of any incumbent director. All directors shall be elected at each
election of directors by the holders of Common Stock. Elections of directors
need not be by written ballot.
SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided as follows:
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1. Except as otherwise expressly provided in this Certificate of
Incorporation or the bylaws, all actions of the board of directors shall be
taken upon or pursuant to the affirmative vote of a majority of the
directors present at a meeting at which a quorum is present.
2. The affirmative vote of the holders of two-thirds of the issued and
outstanding shares of Common Stock shall be required to approve any of the
following actions:
a. the merger or consolidation of the Corporation with or into
any other entity;
b. the dissolution or liquidation of the Corporation; or
c. the sale, exchange, or lease of all or substantially all of
the Corporation's property and assets.
SEVENTH: No fractional shares of Common Stock shall be issued by the
Corporation. In lieu of any fractional shares to which a holder would otherwise
be entitled, the Corporation shall pay cash equal to such fraction multiplied by
the fair market value per share of such Common Stock.
EIGHTH: If and to the extent permitted by the provisions governing
amendment of the bylaws contained therein, the board of directors is authorized
to make, repeal, alter, amend and rescind the bylaws of the Corporation.
NINTH: To the fullest extent permitted by the General Corporation Law of
Delaware or any other applicable laws presently or hereafter in effect, 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. Any repeal or modification of this Article NINTH shall not adversely
affect any right or protection of a director of the Corporation existing
immediately prior to such repeal or modification.
TENTH: Each person who is or was a director or officer of the Corporation
shall be indemnified by the Corporation to the fullest extent permitted by the
General Corporation Law of the State of Delaware or any other applicable laws as
presently or hereafter in effect. Without limiting the generality or the effect
of the foregoing, the Corporation may enter into one or more agreements with any
person which provide for indemnification greater or different than that provided
in this Article TENTH. Any repeal or modification of this Article TENTH shall
not adversely affect any right or protection existing hereunder immediately
prior to such repeal or modification.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate, in the manner now or
hereafter prescribed by statute and this Certificate, and all rights conferred
on stockholders herein are granted subject to this reservation. This Certificate
may not be amended, modified, rendered ineffective or repealed except by the
vote of the holders of a majority of the issued and outstanding shares of Common
Stock. Other classes or series of stock shall not be entitled to vote on any
such amendment, modification or other change, unless and to the extent required
by applicable law.
TWELFTH: The Corporation expressly elects not to be governed by Section 203
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I, the undersigned, being duly elected/appointed Vice
President of the Corporation, do on behalf of the Corporation make this Restated
Certificate of Incorporation of the Corporation, effective May 23, 2000, hereby
declaring and certifying under penalties of perjury that this is the act and
deed of the Corporation and the facts herein stated are true, and accordingly
have hereunto set my hand this 23rd day of May , 2000.
MOTIENT CORPORATION
By: /s/Randy S. Segal
Name: Randy S. Segal
Title: Senior Vice President, General
Counsel and Secretary
Attested to:
/s/David H. Engvall
Name: David H. Engvall
Title: Vice President, Executive Counsel and
Assistant Secretary
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Commonwealth of Virginia
County of Fairfax, ss:
I, Suzanne H. Podhorecki, a Notary Public, hereby certify that on the
23rd day of May, 2000, David H. Engvall appeared before me and acknowledged that
he is the duly authorized and elected Vice President, Executive Counsel and
Assistant Secretary of Motient Corporation, that his signature was his own act
and deed and the foregoing instrument, the act and deed of Motient Corporation
and the facts stated therein are true.
Notary Public
/s/Suzanne H. Podhorecki
My Commission Expires:
October 31, 2001
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Commonwealth of Virginia
County of Fairfax, ss:
I, Suzanne H. Podhorecki, a Notary Public, hereby certify that on the
23rd day of May, 2000, Randy S. Segal appeared before me and acknowledged that
she is the duly authorized and elected Senior Vice President, General Counsel
and Secretary of Motient Corporation, that her signature was her own act and
deed and the foregoing instrument, the act and deed of Motient Corporation and
the facts stated therein are true.
Notary Public
/s/Suzanne H. Podhorecki
My Commission Expires:
October 31, 2001
