Certificate of Incorporation - Martha Stewart Living Omnimedia Inc.
CERTIFICATE OF INCORPORATION
OF
MARTHA STEWART LIVING OMNIMEDIA, INC.
I, the undersigned, for the purpose of incorporating and
organizing a corporation under the General Corporation Law of the State of
Delaware, do hereby execute this Certificate of Incorporation and do hereby
certify as follows:
ARTICLE I
The name of the Corporation is Martha Stewart Living Omnimedia, Inc.
(the "Corporation")
ARTICLE II
The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
The Corporation shall have the authority to issue 350,000,000
shares of $.01 par value Class A Common Stock (the "Class A Common Stock"),
150,000,000 shares of $.01 par value Class B Common Stock (the "Class B Common
Stock," and together with the Class A Common Stock, the "Common Stock"), and
150,000,000 shares of $.01 par value Preferred Stock (the "Preferred Stock").
The number of authorized shares of any class or classes of stock 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, irrespective of Del.
Code Ann. tit. 8, Section 242(b)(2).
A statement of the designations of each class and the powers,
preferences and rights, and qualifications, limitations or restrictions thereof
is as follows:
A. Class A Common Stock
(1) Dividends. The holders of the Class A Common Stock shall
be entitled to receive, share for share with the holders of shares of Class B
Common Stock, such dividends if, as and when declared from time to time by the
Board of Directors. In the event that such dividend is paid in the form of
shares of Common Stock, holders of Class A Common Stock
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shall receive Class A Common Stock and holders of Class B Common Stock shall
receive Class B Common Stock.
(2) Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the Class A Common Stock shall be entitled to
receive, share for share with the holders of shares of Class B Common Stock, all
the assets of the Corporation of whatever kind available for distribution to
stockholders, after the rights of the holders of the Preferred Stock have been
satisfied.
(3) Voting. Each holder of Class A Common Stock shall be
entitled to one vote for each share of Class A Common Stock held as of the
applicable date on any matter that is submitted to a vote or for the consent of
the stockholders of the Corporation. Except as otherwise provided herein or by
the General Corporation Law of the State of Delaware, the holders of Class A
Common Stock and the holders of Class B Common Stock shall at all times vote on
all matters (including the election of directors) together as one class.
B. Class B Common Stock
(1) Dividends. The holders of the Class B Common Stock shall
be entitled to receive, share for share with the holders of shares of Class A
Common Stock, such dividends if, as and when declared from time to time by the
Board of Directors. In the event that such dividend is paid in the form of
shares of Common Stock, holders of Class A Common Stock shall receive Class A
Common Stock and holders of Class B Common Stock shall receive Class B Common
Stock.
(2) Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the Class B Common Stock shall be entitled to
receive, share for share with the holders of shares of Class A Common Stock, all
the assets of the Corporation of whatever kind available for distribution to
stockholders, after the rights of the holders of the Preferred Stock have been
satisfied.
(3) Voting. Each holder of Class B Common Stock shall be
entitled to ten votes for each share of Class B Common Stock held as of the
applicable date on any matter that is submitted to a vote or for the consent of
the stockholders of the Corporation. Except as otherwise provided herein or by
the General Corporation Law of the State of Delaware, the holders of Class A
Common Stock and the holders of Class B Common Stock shall at all times vote on
all matters (including the election of directors) together as one class.
(4) Conversion.
(a) Each share of Class B Common Stock shall be
convertible into one fully paid and nonassessable share of Class A Common Stock
at the option of the holder thereof at any time.
(b) Each share of Class B Common Stock shall
automatically be converted into one fully paid and nonassessable share of Class
A Common Stock upon any sale, pledge, conveyance, hypothecation, assignment or
other transfer (a "Transfer") of such share,
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whether or not for value, by the initial registered holder (the "Initial
Holder") thereof, other than any such Transfer by such holder to (i) a nominee
of such holder (without any change in beneficial ownership, as such term is
defined under Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) or (ii) another person that, at the time of such Transfer,
beneficially owns shares of Class B Common Stock or a nominee thereof; provided
that, notwithstanding the foregoing, (A) any Transfer by the Initial Holder
without consideration to (1) any controlled affiliate of such Initial Holder
which remains such, (2) a partner, active or retired, of such Initial Holder,
(3) the estate of any such Initial Holder or a trust established for the benefit
of the descendants or any relatives or spouse of such Initial Holder, (4) a
parent corporation or wholly-owned subsidiary of such Initial Holder or to a
wholly-owned subsidiary of such parent unless and until such transferee ceases
to be a parent or wholly-owned subsidiary of the Initial Holder or a
wholly-owned subsidiary of such parent, or (5) the spouse of such Initial
Holder, in each case, shall not result in such conversion or (B) any bona fide
pledge by the Initial Holder to any financial institution in connection with a
borrowing shall not result in such conversion; and provided, further, that in
the event any Transfer shall not give rise to automatic conversion hereunder,
then any subsequent Transfer by the holder (other than any such Transfer by such
holder to a nominee of such holder (without any change in beneficial ownership))
or the pledgor, as the case may be, shall be subject to automatic conversion
upon the terms and conditions set forth herein. For purposes of this provision,
the Initial Holder of shares of Class B Common Stock owned of record by The
Martha Stewart Family Limited Partnership or similar entity controlled by Martha
Stewart shall be deemed to be such entity as well as Martha Stewart.
(c) The one-to-one conversion ratio for the
conversion of the Class B Common Stock into Class A Common Stock in accordance
with Section 4(a) and 4(b) of this Article IV shall in all events be equitably
adjusted in the event of any recapitalization of the Corporation by means of a
stock dividend on, or a stock split or combination of, outstanding Class A
Common Stock or Class B Common Stock, or in the event of any merger,
consolidation or other reorganization of the Corporation with another
corporation.
(d) The Corporation shall at all times reserve and
keep available out of its authorized but unissued shares of Class A Common
Stock, solely for the purpose of effecting the conversion of the shares of Class
B Common Stock, such number of its shares of Class A Common Stock as shall from
time to time be sufficient to effect the conversion of all outstanding shares of
Class B Common Stock.
(e) If any shares of Class B Common Stock shall be
converted pursuant to this Section 4, the shares so converted shall be retired
and returned to the authorized but unissued shares of Class B Common Stock.
C. Other Matters Affecting Shareholders of Class A Common Stock and
Class B Common Stock
In no event shall any stock dividends or stock splits or
combinations of stock be declared or made on Class A Common Stock or Class B
Common Stock unless the shares of Class A Common Stock and Class B Common Stock
at the time outstanding are treated equally and identically, except that such
dividends or stock splits or combinations shall be made in
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respect of shares of Class A Common Stock and Class B Common Stock in the form
of shares of Class A Common Stock or Class B Common Stock, respectively.
D. Preferred Stock
The Board of Directors shall, by resolution, fix the powers,
designations, preferences, rights and qualifications, limitations and
restrictions of any class or series of the Preferred Stock which shall not have
been fixed by the Certificate of Incorporation.
ARTICLE V
The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation, but the
stockholders may make additional By-Laws and may alter or repeal any By-Law
whether adopted by them or otherwise.
ARTICLE VI
Elections of directors need not be by written ballot except
and to the extent provided in the By-Laws of the Corporation.
ARTICLE VII
The Corporation is to have perpetual existence.
ARTICLE VIII
Each person who is or was or had agreed to become a director
or officer of the Corporation, or each such person who is or was serving or who
had agreed to serve at the request of the Board of Directors or an officer of
the Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the By-Laws of the Corporation, to the full extent permitted from time to
time by the General Corporation Law of the State of Delaware as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) or any other applicable laws as presently or hereinafter in
effect. Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person that provide
for indemnification greater or different than that provided in this Article
VIII. Any amendment or repeal of this Article VIII shall not adversely affect
any right or protection existing hereunder immediately prior to such amendment
or repeal.
ARTICLE IX
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,
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(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 General
Corporation Law of the State of Delaware or (iv) for any transaction from which
the director derived an improper personal benefit. Any amendment or repeal of
this Article IX shall not adversely affect any right or protection of a director
of the Corporation existing immediately prior to such amendment or repeal. The
liability of a director shall be further eliminated or limited to the full
extent permitted by Delaware law, as it may hereafter be amended.
ARTICLE X
Meetings of stockholders may be held within or without the
State of Delaware, as determined by the Board of Directors. The books of the
Corporation may be kept (subject to any provision contained in the Delaware
General Corporation Law) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the
By-Laws of the Corporation.
ARTICLE XI
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 the Delaware General Corporation Law, and
all rights conferred upon stockholders herein are granted subject to this
reservation except that under no circumstances may such amendment be adopted
except as prescribed by Article IV, above, and provided further that the rights
of the Class B Common Stock may not be amended, altered, changed or repealed
without the approval of the holders of the requisite number of said shares of
Class B Common Stock.
ARTICLE XII
The number of directors of the Corporation shall be such
number as shall be determined from time to time by resolution of the Board of
Directors. A director may be removed, at any time, either with or without cause,
by the affirmative vote of holders of a majority of the voting power of shares
of stock then entitled to vote with respect to the election of such director.
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The name and address of the incorporator is Gregory R. Blatt,
Senior Vice President and General Counsel, Martha Stewart Living Omnimedia LLC,
20 West 43rd Street, New York, New York 10036.
IN WITNESS WHEREOF, I, the undersigned, being the incorporator
hereinbefore named, do hereby further certify that the facts hereinabove stated
are truly set forth and, accordingly, I have hereunto set my hand this 26th day
of July, 1999.
/s/ Gregory R. Blatt
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Gregory R. Blatt
Incorporator
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