EXHIBIT 9
NEXTLINK COMMUNICATIONS, INC.
CERTIFICATE OF DESIGNATION OF THE POWERS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS OF
SERIES G CUMULATIVE CONVERTIBLE PARTICIPATING PREFERRED STOCK
AND QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF (1)
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1 This form assumes consummation of the Merger prior to the Closing. If
the Merger does not occur prior to the Closing, appropriate
adjustments to this form will be made.
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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NEXTLINK Communications, Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware, does hereby certify that, pursuant to authority conferred upon
the board of directors of the Corporation (the "Board of Directors") by the
Corporation's Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), and pursuant to the provisions of Section 151 of the
General Corporation Law of the State of Delaware, said Board of Directors
is authorized to issue Preferred Stock of the Corporation in one or more
series and the Special Committee of the Board of Directors, as authorized
by the Board of Directors, has duly approved and adopted the following
resolution on June 14, 2000 (the "Resolution"):
RESOLVED that, pursuant to the authority vested in the Board
of Directors by its Certificate of Incorporation, the Special
Committee, as authorized by the Board of Directors, hereby creates,
authorizes and provides for the issuance of a series of the preferred
stock of the Corporation, par value $.01 per share (such preferred
stock designated as the "Series G Cumulative Convertible Participating
Preferred Stock"), consisting of 268,750 shares and having the powers,
designation, preferences, relative, participating, optional and other
special rights and the qualifications, limitations and restrictions
thereof that are set forth in the Certificate of Incorporation and in
this Resolution as follows:
1. Number and Designation. 268,750 shares of the Preferred Stock
of the Corporation shall constitute a series designated as "Series G
Cumulative Convertible Participating Preferred Stock" (the "Series G
Preferred Stock").
2. Definitions. Unless the context otherwise requires, when used
herein the following terms shall have the meaning indicated.
"Board of Directors" means the Board of Directors of the
Corporation.
"Business Day" means any day except Saturday, Sunday and any day
which shall be a legal holiday or a day on which banking institutions in
New York City, New York generally are authorized or required by law or
other governmental actions to close.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations, rights in, or other equivalents (however
designated and whether voting and/or non-voting) of such person's capital
stock, whether outstanding on the Issue Date or issued after the Issue
Date, and any and all rights (other than any evidence of indebtedness),
warrants or options exchangeable for or convertible into such capital
stock.
"Change of Control" will be deemed to have occurred at such time
as any of the following occur: (i) any person or any persons acting
together that would constitute a "group" for purposes of Section 13(d) of
the Exchange Act, or any successor provision thereto (other than Eagle
River, Craig O. McCaw, Wendy P. McCaw and their respective affiliates or an
underwriter engaged in a firm commitment underwriting on behalf of the
Corporation), shall beneficially own (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision thereto) more than 50%
of the aggregate voting power of all classes of Voting Stock of the
Corporation, (ii) neither Mr. Craig O. McCaw nor any person designated by
him to the Corporation as acting on his behalf shall be a director of the
Corporation, or (iii) from and after the date on which the Corporation has
redeemed indefeasibly or defeased in full its obligations in respect of its
12-1/2% Senior Notes due April 15, 2006 or defeased the covenants
applicable thereto in accordance with their terms, during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
shareholders of the Corporation was proposed by a vote of a majority of the
directors of the Corporation then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office.
"Class A Common Stock" means any shares of the Corporation's
Class A Common Stock, par value $.02 per share, now or hereafter authorized
to be issued, and any and all securities of any kind whatsoever of the
Corporation which may be exchanged for or converted into Class A Common
Stock, any and all securities of any kind whatsoever of the Corporation
which may be issued on or after the date hereof in respect of, in exchange
for, or upon conversion of shares of Class A Common Stock pursuant to a
merger, consolidation, stock split, stock dividend, recapitalization of the
Corporation or otherwise.
"Common Stock" means the Corporation's Class A Common Stock, the
Corporation's Class B Common Stock, par value $.02 per share, and any other
common stock of the Corporation.
"Current Market Price" means the average of the daily Market
Prices of the Common Stock for ten consecutive trading days immediately
preceding the date for which such value is to be computed.
"Eagle River" means Eagle River Investments, L.L.C., a limited
liability company formed under the laws of the State of Washington.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations
promulgated thereunder.
"Issue Date" means the original date of issuance of shares of
Series G Preferred Stock.
"Liquidation Preference" with respect to a share of Series G
Preferred Stock means, as at any date, the sum of (i) $1,000.00 plus (ii)
any Special Amount with respect to such share plus (iii) an amount equal to
any accrued and unpaid Preferred Dividends (as defined in paragraph 4(a)
below) with respect to such share from the last Dividend Payment Date
through such date.
"Market Price" means, with respect to the Common Stock, on any
given day, (i) the price of the last trade, as reported on the Nasdaq
National Market, not identified as having been reported late to such
system, or (ii) if the Common Stock is so traded, but not so quoted, the
average of the last bid and ask prices, as those prices are reported on the
Nasdaq National Market, or (iii) if the Common Stock is not listed or
authorized for trading on the Nasdaq National Market or any comparable
system, the average of the closing bid and asked prices as furnished by two
members of the National Association of Securities Dealers, Inc. selected
from time to time by the Corporation for that purpose. If the Common Stock
is not listed and traded in a manner that the quotations referred to above
are available for the period required hereunder, the Market Price per share
of Common Stock shall be deemed to be the fair value per share of such
security as determined in good faith by the Board of Directors of the
Corporation.
"Merger Agreement" means the Amended and Restated Agreement and
Plan of Merger and Share Exchange Agreement, dated as of May 10, 2000, by
and among Concentric Network Corporation, the Corporation, Eagle River,
Craig O. McCaw and NM Acquisition Corp.
"Net Realizable FMV" means, with respect to a share of Common
Stock, if calculable, the amount of gross proceeds net of underwriters'
discounts, commissions or other selling expenses received by or to be
received by the holder in connection with the sale of such share of Common
Stock on a when issued basis or immediately after the conversion or, in all
other cases, an amount equal to 97% of the Current Market Price of the
Common Stock.
"Preference Amount" with respect to a share of Series G Preferred
Stock means, as at any date, the sum of (i) $706.9767 plus (ii) any Special
Amount, whether or not declared, with respect to such share plus (iii) an
amount equal to any accrued and unpaid Preferred Dividends with respect to
such share from the last Dividend Payment Date through such date.
"Series C Designation" means the Certificate of Designation for
the Series C Preferred Stock, as amended.
"Series C Preferred Stock" means the Series C Cumulative
Convertible Participating Preferred Stock, par value $.01 per share, of the
Corporation.
"Series D Designation" means the Certificate of Designation for
the Series D Preferred Stock, as amended.
"Series D Preferred Stock" means the Series D Convertible
Participating Preferred Stock, par value $.01 per share, of the
Corporation.
"Series H Designation" means the Certificate of Designation for
the Series H Preferred Stock.
"Series H Preferred Stock" means the Series H Convertible
Participating Preferred Stock, par value $.01 per share, of the
Corporation.
"Special Amount" with respect to a share of Series G Preferred
Stock shall mean all dividends and other amounts which have become payable
in respect of such share under paragraph 4(a) but which have not been paid.
The Special Amount with respect to any such share shall be reduced by the
amount of any such dividends and other amounts actually paid in respect of
such share under paragraph 4(c).
"Voting Stock" means, with respect to any person, the Capital
Stock of any class or kind ordinarily having the power to vote for the
election of directors or other members of the governing body of such
person.
3. Rank. (a) The Series G Preferred Stock and Series H Preferred
Stock each will, with respect to dividend rights and rights on liquidation,
winding-up and dissolution, rank (i) senior to the Corporation's Series B
Cumulative Convertible Preferred Stock, par value $.01 per share, the
Corporation's Series F Convertible Redeemable Preferred Stock, par value
$.01 per share, all classes of Common Stock and to each other class of
Capital Stock of the Corporation or series of Preferred Stock of the
Corporation established hereafter by the Board of Directors of the
Corporation the terms of which do not expressly provide that such class or
series ranks senior to, or on a parity with, the Series G Preferred Stock
and Series H Preferred Stock as to dividend rights and rights on
liquidation, winding-up and dissolution of the Corporation (collectively
referred to, together with all classes of Common Stock of the Corporation,
as "Junior Securities"); (ii) on a parity with the Series C Preferred
Stock, the Series D Preferred Stock and each class of Capital Stock of the
Corporation or series of Preferred Stock of the Corporation established
hereafter by the Board of Directors of the Corporation, the terms of which
expressly provide that such class or series will rank on a parity with the
Series G Preferred Stock and Series H Preferred Stock as to dividend rights
and rights on liquidation, winding-up and dissolution (collectively
referred to as "Parity Securities"); and (iii) junior to the Corporation's
Series A Exchangeable Redeemable Preferred Shares, par value $.01 per share
(the "Senior Exchangeable Redeemable Preferred Shares"), the Corporation's
Series E Redeemable Exchangeable Preferred Stock, par value $.01 per share,
and to each class of Capital Stock of the Corporation or series of
Preferred Stock of the Corporation established hereafter by the Board of
Directors of the Corporation in accordance with Section 9(d) hereof, the
terms of which expressly provide that such class or series will rank senior
to the Series G Preferred Stock and Series H Preferred Stock as to dividend
rights and rights on liquidation, winding-up and dissolution of the
Corporation (collectively referred to as "Senior Securities"); provided
that the relative powers, rights and preferences of the Series G Preferred
Stock and Series H Preferred Stock vis-a-vis the other shall be as set
forth herein and in the Series H Designation.
(b) The respective definitions of Junior Securities, Parity
Securities and Senior Securities shall also include any warrants, rights or
options or other securities exercisable or exchangeable for or convertible
into any of the Junior Securities, Parity Securities and Senior Securities,
as the case may be.
(c) The Series G Preferred Stock shall be subject to the creation
of Junior Securities and Parity Securities and, to the extent permitted by
Section 9(d), Senior Securities.
4. Dividends. (a) On July __, 2000, the Corporation shall pay the
holders of the Series G Preferred Stock, on a pro rata basis based upon
their holdings of Series G Preferred Stock, a regularly scheduled cash
dividend in the aggregate amount of $4,040,889. In addition, the holders of
shares of Series G Preferred Stock shall be entitled to receive with
respect to each share of Series G Preferred Stock, when, as and if declared
by the Board of Directors, out of funds legally available for the payment
of dividends, dividends per annum equal to $55.814 per share in cash (the
"Preferred Dividend"). Preferred Dividends shall accrue and shall be
cumulative whether or not declared from the Issue Date and shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year (unless such day is not a Business Day, in which event such
dividends shall be payable on the next succeeding Business Day) (each such
date being a "Dividend Payment Date" and each such quarterly period being a
"Dividend Period"), commencing on September 30, 2000. Each such dividend
shall be payable to the holders of record of shares of the Series G
Preferred Stock as they appear on the stock register of the Corporation at
the close of business on the corresponding Record Date. As used herein, the
term "Record Date" means, with respect to the dividend payable on March 31,
June 30, September 30 and December 31, respectively, of each year, the
preceding March 15, June 15, September 15 and December 15, or such other
date, not more than 60 days or less than 10 days preceding the payment
dates thereof, as shall be fixed as the record date by the Board of
Directors.
(b) The amount of Preferred Dividends payable for each full
Dividend Period for each outstanding share of Series G Preferred Stock
shall be computed by dividing $55.814 by four. The amount of Preferred
Dividends payable on the initial Dividend Payment Date, or in respect of
any period shorter or longer than a full Dividend Period, on the Series G
Preferred Stock shall be computed on the basis of twelve 30-day months and
a 360-day year. No interest, or sum or money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Series G
Preferred Stock that may be in arrears.
(c) Accrued and unpaid Special Amounts for any past Dividend
Periods may be declared and paid on any subsequent Dividend Payment Date,
to holders of record on the corresponding Record Date.
(d) So long as any shares of the Series G Preferred Stock are
outstanding, no dividend, except as described in the last sentence of
Section 4(e) below and except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on any Parity
Securities, nor shall any Parity Securities be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such
stock) by the Corporation, directly or indirectly (except by conversion
into or exchange for Parity Securities or Junior Securities), unless in
each case all Special Amounts have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof is set
apart for such payment on the Series G Preferred Stock for all Dividend
Periods terminating on or prior to the date of payment of the dividend on,
or the date of redemption, purchase, or acquisition for consideration of,
such Parity Securities. When Special Amounts are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all Special
Amounts and additional amounts declared upon shares of the Series G
Preferred Stock and all dividends and additional amounts declared upon any
other Parity Securities shall be declared ratably in proportion to the
respective amounts of Special Amounts and additional amounts accumulated
and unpaid on the Series G Preferred Stock and dividends and additional
amounts accumulated and unpaid on such Parity Securities.
(e) So long as any shares of the Series G Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for
payment and no other distribution shall be declared or made upon Junior
Securities, nor shall any Junior Securities be redeemed, purchased or
otherwise acquired (any such dividend, distribution, redemption, purchase
or acquisition being hereinafter referred to as a "Junior Securities
Distribution") for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such
stock) by the Corporation, directly or indirectly (except by conversion
into or exchange for Junior Securities), unless in each case (i) all
Special Amounts and additional amounts on all outstanding shares of the
Series G Preferred Stock and accrued and unpaid dividends and additional
amounts on any other Parity Securities shall have been paid or set apart
for payment for all past Dividend Periods with respect to the Series G
Preferred Stock and all past dividend periods with respect to such Parity
Securities and (ii) sufficient funds shall have been paid or set apart for
the payment of the dividend for the current Dividend Period with respect to
the Series G Preferred Stock and the current dividend period with respect
to such Parity Securities. Notwithstanding anything in this Certificate of
Designation to the contrary, the Corporation may declare and pay dividends
on Parity Stock which are payable solely in additional shares of, or by the
increase in the liquidation value of, Parity Stock or on Junior Stock which
are payable in additional shares of, or by the increase in the liquidation
value of, Junior Stock, as applicable, or repurchase, redeem or otherwise
acquire Junior Stock in exchange for Junior Stock, and Parity Stock in
exchange for Parity Stock or Junior Stock.
(f) So long as any shares of Series G Preferred Stock are
outstanding, if the Corporation pays a dividend in cash, securities or
other property on the Common Stock (other than as described in the last
sentence of Section 4(e)) then at the same time the Corporation shall
declare and pay a dividend on each share of Series G Preferred Stock in an
amount equal to the Series G Per Share Participation Amount. The "Series G
Per Share Participation Amount" means, as at any date, 37.5% of the amount
of dividends that would be paid with respect to the Series G Preferred
Stock and Series H Preferred Stock taken together if converted into Common
Stock on the date established as the record date with respect to such
dividend on the Common Stock divided by the number of shares of Series G
Preferred Stock then outstanding.
5. Liquidation Preference. (a) In the event of any liquidation,
dissolution or winding-up of the Corporation, whether voluntary or
involuntary, after payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for the holders
of Senior Securities, and before any payment or distribution of the assets
of the Corporation (whether capital or surplus) shall be made to or set
apart for the holders of Junior Securities, the holders of the shares of
Series G Preferred Stock and Series H Preferred Stock taken together shall
be entitled to receive an amount in cash equal to the greater of (x) the
aggregate Liquidation Preferences (as set forth herein and in the Series H
Designation) of the shares of Series G Preferred Stock and Series H
Preferred Stock as of the date of liquidation, or (y) the aggregate amount
that would have been received with respect to the shares of Series G
Preferred Stock and Series H Preferred Stock if such stock had been
converted to Common Stock immediately prior to such liquidation,
dissolution or winding-up. If, upon any liquidation, dissolution or
winding-up of the Corporation, the assets of the Corporation, or proceeds
thereof, shall be insufficient to pay in full the aforesaid amounts under
clause (x) of the preceding sentence and liquidating payments on all Parity
Securities, then such assets, or proceeds thereof, shall (i) be distributed
among the shares of Series G Preferred Stock and the Series H Preferred
Stock taken together and all such other Parity Securities ratably in
accordance with the respective amounts that would be payable on such shares
of Preferred Stock and any such other Parity Securities if all amounts
payable thereon were paid in full and (ii) the amount distributable under
clause (i) to the Series G Preferred Stock and Series H Preferred Stock
taken together, shall first be distributed to the Series G Preferred Stock
until it has received an amount equal to the aggregate Preference Amounts
of all Series G Preferred Stock outstanding as of the date of liquidation
and thereafter 37.5% to the Series G Preferred Stock and 62.5% to the
Series H Preferred Stock. If, upon any liquidation, dissolution or
winding-up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable to the Series G Preferred Stock and Series H
Preferred Stock taken together shall be sufficient to pay in full the
aforesaid amounts under clause (x) of the first sentence of this subsection
5(a) then such amount shall first be distributed to the Series G Preferred
Stock until it has received an amount equal to the aggregate Preference
Amounts of all Series G Preferred Stock outstanding as of the date of
liquidation and thereafter 37.5% to the Series G Preferred Stock and 62.5%
to the Series H Preferred Stock. Any amounts distributed with respect to
the Series G Preferred Stock pursuant to this paragraph 5(a) shall be
allocated pro rata among the shares of Series G Preferred Stock. For the
purposes of this paragraph 5, neither the sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other consideration) of
all or substantially all of the property or assets of the Corporation nor
the consolidation or merger of the Corporation with or into one or more
other entities shall be deemed to be a liquidation, dissolution or
winding-up of the Corporation.
(b) Subject to the rights of the holders of any Parity
Securities, after payment shall have been made in full to the holders of
the Series G Preferred Stock and the Series H Preferred Stock taken
together, as provided in this paragraph 5, any other series or class or
classes of Junior Securities shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series G
Preferred Stock, Series H Preferred Stock and any Parity Securities shall
not be entitled to share therein.
6. Redemption. (a) The Series G Preferred Stock shall not be
redeemable by the Corporation prior to the later of (i) the fifth
anniversary of the Issue Date and (ii) the date on which the Corporation
has redeemed indefeasibly or defeased in full its obligations in respect of
its 12-1/2% Senior Notes due April 15, 2006 or defeased the covenants
applicable thereto in accordance with their terms (the "Redemption Trigger
Date"). On and after the Redemption Trigger Date, to the extent the
Corporation shall have funds legally available for such payment, and
subject to the rights of the holders pursuant to Section 8 hereof, the
Corporation may redeem at its option shares of Series G Preferred Stock, at
any time in whole or from time to time in part, at a redemption price per
share equal to the Liquidation Preference as of the date fixed for
redemption, without interest; provided that the Corporation shall only be
entitled to redeem shares of the Series G Preferred Stock if shares of the
Series H Preferred Stock are also redeemed on a proportional basis based on
the percentage of each series of shares outstanding at such time.
(b) To the extent the Corporation shall have funds legally
available therefor, during the 180-day period commencing on the tenth
anniversary of the Issue Date, the holders of the Series G Preferred Stock
shall have the right to cause the Corporation to redeem at any time in
whole or from time to time in part outstanding shares of Series G Preferred
Stock, if any, at a redemption price per share in cash equal to the
Liquidation Preference, without interest; provided that upon any such
election the Corporation shall be required to redeem a proportional amount
of the Series H Preferred Stock.
(c) Shares of Series G Preferred Stock which have been issued and
reacquired by the Corporation in any manner, including shares purchased or
redeemed, shall (upon compliance with any applicable provisions of the laws
of the State of Delaware) be retired and have the status of authorized and
unissued shares of the class of Preferred Stock undesignated as to series
and may be redesignated and reissued as part of any series of the Preferred
Stock; provided that no such issued and reacquired shares of Series G
Preferred Stock shall be reissued or sold as Series G Preferred Stock.
(d) If the Corporation is unable or shall fail to discharge its
obligation to redeem outstanding shares of Series G Preferred Stock
pursuant to paragraph 6(b) (the "Mandatory Redemption Obligation"), the
Mandatory Redemption Obligation shall be discharged as soon as the
Corporation is able to discharge such Mandatory Redemption Obligation. If
and so long as any Mandatory Redemption Obligation with respect to the
Series G Preferred Stock shall not be fully discharged, the Corporation
shall not (i) directly or indirectly, redeem, purchase, or otherwise
acquire any Parity Security or discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of any
Parity Securities or (ii) declare or make any Junior Securities
Distribution, or, directly or indirectly, discharge any mandatory or
optional redemption, sinking fund or other similar obligation in respect of
any Junior Securities.
7. Procedure for Redemption. (a) In the event that fewer than all
the outstanding shares of Series G Preferred Stock are to be redeemed, in
the case of Section 6(a), the number of shares to be redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
selected pro rata (with any fractional shares being rounded to the nearest
whole shares). Notwithstanding anything in Section 6 to the contrary, the
Corporation shall only redeem shares of Series G Preferred Stock pursuant
to Section 6(a) or 6(b) on a proportional basis based on the percentage of
each series of shares outstanding at such time.
(b) In the event the Corporation shall redeem shares of Series G
Preferred Stock pursuant to Section 6(a), notice of such redemption shall
be given by first class mail, postage prepaid, mailed not less than 30 days
nor more than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed at such holder's address as the same
appears on the stock register of the Corporation; provided that neither the
failure to give such notice nor any defect therein shall affect the
validity of the giving of notice for the redemption of any share of Series
G Preferred Stock to be redeemed except as to the holder to whom the
Corporation has failed to give said notice or except as to the holder whose
notice was defective. Each such notice shall state: (i) the redemption
date; (ii) the number of shares of Series G Preferred Stock to be redeemed
and, if fewer than all the shares held by such holder are to be redeemed,
the number of shares to be redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; and (v) that dividends
on the shares to be redeemed will cease to accrue on such redemption date.
(c) Notice having been mailed as aforesaid, if applicable, from
and after the redemption date, dividends on the shares of Series G
Preferred Stock so called for redemption shall cease to accrue, and all
rights of the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the redemption price and except
the right to convert shares so called for redemption prior to the close of
business on the date immediately preceding the date fixed for such
redemption) shall cease. Upon surrender in accordance with said notice, if
applicable, of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), such shares shall be redeemed by
the Corporation at the redemption price aforesaid. In case fewer than all
the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost
to the holder thereof.
8. Conversion. (a) (i) Subject to the provisions of this Section
8, the holders of shares of Series G Preferred Stock shall have the right,
at any time in whole and from time to time in part, at such holders'
option, to convert any or all outstanding shares (and fractional shares) of
Series G Preferred Stock held by such holders into fully paid and
non-assessable shares of Class A Common Stock; provided that upon the
exercise by any holder of Series G Preferred Stock of this conversion
option, a proportional amount, based on the percentage of each series of
shares outstanding, of the Series H Preferred Stock shall automatically
convert in accordance with the terms of the Series H Designation. At any
time and from time to time the outstanding shares of Series G Preferred
Stock and Series H Preferred Stock taken together shall be convertible into
a number of shares of Class A Common Stock (the "Aggregate Conversion
Shares") equal to the aggregate Liquidation Preferences of the shares of
the Series G Preferred Stock and the Series H Preferred Stock as set forth
herein and in the Series H Designation as of the date of conversion divided
by $31.625, subject to adjustment from time to time pursuant to paragraph
8(g) hereof (the "Conversion Price"). The Series G Preferred Stock
outstanding as at any date shall be convertible into a number of shares of
Class A Common Stock (the "Aggregate Series G Conversion Shares") equal to
the sum of (A) the aggregate Preference Amounts with respect to all
outstanding shares of Series G Preferred Stock divided by the Net
Realizable FMV of a share of Class A Common Stock at the time of conversion
plus (B) .375 times the excess, if any, of the Aggregate Conversion Shares
over the number determined pursuant to clause (A). Each share of Series G
Preferred Stock being converted shall convert into a number of shares of
Class A Common Stock equal to the Aggregate Series G Conversion Shares
divided by the number of shares of Series G Preferred Stock then
outstanding. Notwithstanding any call for redemption pursuant to Section
6(a), the right to convert shares so called for redemption shall terminate
at the close of business on the date immediately preceding the date fixed
for such redemption unless the Corporation shall default in making payment
of the amount payable upon such redemption.
(ii) In the case of any partial conversion of Series G
Preferred Stock by the holders thereof, selection of the Series H Preferred
Stock for automatic conversion will be made by the Corporation in
compliance with the requirements of the principal national securities
exchange, if any, on which the Series H Preferred Stock is listed, or if
the Series H Preferred Stock is not listed on a national securities
exchange, on a pro rata basis, by lot or such other method as the
Corporation, in its sole discretion, shall deem fair and appropriate;
provided, however, that the Corporation may redeem all the shares held by
holders of fewer than 5 shares of Series H Preferred Stock (or all of the
shares held by the holders who would hold less than 5 shares of Series H
Preferred Stock as a result of such redemption) as may be determined by the
Corporation.
(b) (i) In order to exercise the conversion privilege, the holder
of the shares of Series G Preferred Stock to be converted shall surrender
the certificate representing such shares at the principal executive offices
of the Corporation, with a written notice of election to convert completed
and signed, specifying the number of shares to be converted. Unless the
shares issuable on conversion are to be issued in the same name as the name
in which such shares of Series G Preferred Stock are registered, each share
surrendered for conversion shall be accompanied by instruments of transfer,
in form satisfactory to the Corporation, duly executed by the holder or the
holder's duly authorized attorney, and an amount sufficient to pay any
transfer or similar tax.
(ii) As promptly as practicable after the surrender by the
holder of the certificates for shares of Series G Preferred Stock as
aforesaid, the Corporation shall issue and shall deliver to such holder, or
on the holder's written order to the holder's transferee, (x) a certificate
or certificates for the whole number of shares of Class A Common Stock
issuable upon the conversion of such shares in accordance with the
provisions of this paragraph 8, (y) any cash adjustment required pursuant
to Section 8(f), and (z) in the event of a conversion in part, a
certificate or certificates for the whole number of shares of Series G
Preferred Stock not being so converted.
(iii) Each conversion of shares of Series G Preferred Stock
pursuant to paragraph 8(a) shall be deemed to have been effected
immediately prior to the close of business on the date on which the
certificates for shares of Series G Preferred Stock shall have been
surrendered and such notice received by the Corporation as aforesaid, and
the person in whose name or names any certificate or certificates for
shares of Class A Common Stock shall be issuable upon such conversion shall
be deemed to have become the holder of record of the shares of Class A
Common Stock represented thereby at such time on such date and such
conversion shall be into a number of whole shares of Class A Common Stock
in respect of the shares of Series G Preferred Stock being converted as
determined in accordance with this Section 8 at such time on such date. All
shares of Class A Common Stock delivered upon conversion of the Series G
Preferred Stock will upon delivery be duly and validly issued and fully
paid and non-assessable, free of all liens and charges and not subject to
any preemptive rights. Upon the surrender of certificates representing the
shares of Series G Preferred Stock to be converted, the shares to be so
converted shall no longer be deemed to be outstanding and all rights of a
holder with respect to such shares surrendered for conversion shall
immediately terminate except the right to receive the Class A Common Stock
and other amounts payable pursuant to this paragraph 8 and a certificate or
certificates representing the shares of Series G Preferred Stock not
converted.
(c) (i) Upon delivery to the Corporation by a holder of shares of
Series G Preferred Stock of a notice of election to convert, the right of
the Corporation to redeem such shares of Series G Preferred Stock shall
terminate, regardless of whether a notice of redemption has been mailed as
aforesaid.
(ii) If a holder of Series G Preferred Stock delivers to the
Corporation a certificate therefor and a notice of election to convert, the
Series G Preferred Stock to be converted shall cease to accrue dividends
pursuant to paragraph 4 but shall continue to be entitled to receive pro
rata dividends for the period from the last Dividend Payment Date to the
date of delivery of the notice of election to convert in preference to and
in priority over any dividends on any Junior Securities.
(iii) Except as provided above and in paragraph 8(g), the
Corporation shall make no payment or adjustment for accrued and unpaid
dividends on shares of Series G Preferred Stock, whether or not in arrears,
on conversion of such shares or for dividends theretofore paid on the
shares of Class A Common Stock.
(d) (i) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, such number of its
authorized but unissued shares of Class A Common Stock as shall be required
for the purpose of effecting conversions of the Series G Preferred Stock.
(ii) Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon conversion of the Series G
Preferred Stock, the Corporation shall comply with all applicable federal
and state laws and regulations which require action to be taken by the
Corporation.
(e) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of shares of Class A Common Stock on conversion of the Series G Preferred
Stock pursuant hereto; provided that the Corporation shall not be required
to pay any tax which may be payable in respect of any transfer involved in
the issue or delivery of shares of Class A Common Stock in a name other
than that of the holder of the Series G Preferred Stock to be converted and
no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Corporation the amount of
any such tax or has established, to the satisfaction of the Corporation,
that such tax has been paid.
(f) In connection with the conversion of any shares of Series G
Preferred Stock, no fractions of shares of Class A Common Stock shall be
required to be issued to the holder of such shares of Series G Preferred
Stock, but in lieu thereof the Corporation shall pay a cash adjustment in
respect of such fractional interest in an amount equal to such fractional
interest multiplied by the Market Price per share of Class A Common Stock
on the business day next preceding the business day on which such shares of
Series G Preferred Stock are deemed to have been converted.
(g) (i) In case the Corporation shall at any time after the Issue
Date (A) declare a dividend or make a distribution on Common Stock payable
in Common Stock (other than dividends or distributions payable to holders
of the Series G Preferred Stock including dividends paid as contemplated by
Section 4(f)), (B) subdivide or split the outstanding Common Stock, (C)
combine or reclassify the outstanding Common Stock into a smaller number of
shares, (D) issue any shares of its Capital Stock in a reclassification of
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Corporation is the continuing
corporation), or (E) consolidate with, or merge with or into, any other
person, the Conversion Price in effect at the time of the record date for
such dividend or distribution or on the effective date of such subdivision,
split, combination, consolidation, merger or reclassification shall be
adjusted so that the conversion of the Series G Preferred Stock after such
time shall entitle the holder to receive the aggregate number of shares of
Common Stock or other securities of the Corporation (or other securities
into which such shares of Common Stock have been converted, exchanged,
combined, consolidated, merged or reclassified pursuant to clause
8(g)(i)(C), 8(g)(i)(D) or 8(g)(i)(E) above) which, if the Series G
Preferred Stock had been converted immediately prior to such time, such
holder would have owned upon such conversion and been entitled to receive
by virtue of such dividend, distribution, subdivision, split, combination,
consolidation, merger or reclassification. Such adjustment shall be made
successively whenever an event listed above shall occur.
(ii) In case the Corporation shall issue or sell any Common
Stock (or rights, options, warrants or other securities convertible into or
exercisable or exchangeable for shares of Common Stock), other than shares
of Common Stock issued pursuant to the Merger Agreement, without
consideration or for a consideration per share (or having a conversion,
exchange or exercise price per share) less than the Current Market Price on
the date of such issuance (or, in the case of convertible or exchangeable
or exercisable securities, less than the Current Market Price as of the
date of issuance of the rights, options, warrants or other securities in
respect of which shares of Common Stock were issued) then, and in each such
case, the Conversion Price shall be reduced to an amount determined by
multiplying (A) the Conversion Price in effect on the day immediately prior
to such date by (B) a fraction, the numerator of which shall be the sum of
(1) the number of shares of Common Stock outstanding immediately prior to
such sale or issuance multiplied by the then applicable Current Market
Price (such Current Market Price, the "Adjustment Price") and (2) the
aggregate consideration receivable by the Corporation for the total number
of shares of Common Stock so issued (or into or for which the rights,
options, warrants or other securities are convertible, exercisable or
exchangeable), and the denominator of which shall be the sum of (x) the
total number of shares of Common Stock outstanding immediately prior to
such sale or issue and (y) the number of additional shares of Common Stock
issued (or into or for which the rights, options, warrants or other
securities may be converted, exercised or exchanged), multiplied by the
Adjustment Price. In case any portion of the consideration to be received
by the Corporation shall be in a form other than cash, the fair market
value of such noncash consideration shall be utilized in the foregoing
computation. Such fair market value shall be determined in good faith by
the Board of Directors. Notwithstanding anything herein to the contrary, no
adjustment in the Conversion Price shall be made under this clause
8(g)(ii): (a) to the extent the holders of Series G Preferred Stock
participate in any such distribution in accordance with Section 4(f) hereof
and (b) to the extent the holders of Series G Preferred Stock participate
in any such distribution by way of an adjustment to the Conversion Price
pursuant to Section 8(g)(i) hereof.
(iii) In case the Corporation shall fix a record date for
the issuance on a pro rata basis of rights, options or warrants to the
holders of its Common Stock or other securities entitling such holders to
subscribe for or purchase shares of Common Stock (or securities convertible
into or exercisable or exchangeable for shares of Common Stock) at a price
per share of Common Stock (or having a conversion, exercise or exchange
price per share of Common Stock, in the case of a security convertible
into, or exerciseable or exchangeable for, shares of Common Stock) less
than the Current Market Price on such record date, the maximum number of
shares of Common Stock issuable upon exercise of such rights, options or
warrants (or conversion of such convertible securities) shall be deemed to
have been issued and outstanding as of such record date and the Conversion
Price shall be adjusted pursuant to paragraph 8(g)(ii) hereof, as though
such maximum number of shares of Common Stock had been so issued for an
aggregate consideration payable by the holders of such rights, options,
warrants or other securities prior to their receipt of such shares of
Common Stock. In case any portion of such consideration shall be in a form
other than cash, the fair market value of such noncash consideration shall
be determined as set forth in paragraph 8(g)(ii) hereof. Such adjustment
shall be made successively whenever such record date is fixed; and in the
event that such rights, options or warrants are not so issued or expire in
whole or in part unexercised, or in the event of a change in the number of
shares of Common Stock to which the holders of such rights, options or
warrants are entitled (other than pursuant to adjustment provisions therein
comparable to those contained in this paragraph 8(g)), the Conversion Price
shall again be adjusted as follows: (A) in the event that all of such
rights, options or warrants expire unexercised, the Conversion Price shall
be the Conversion Price that would then be in effect if such record date
had not been fixed; (B) in the event that less than all of such rights,
options or warrants expire unexercised, the Conversion Price shall be
adjusted pursuant to paragraph 8(g)(ii) to reflect the maximum number of
shares of Common Stock issuable upon exercise of such rights, options or
warrants that remain outstanding (without taking into effect shares of
Common Stock issuable upon exercise of rights, options or warrants that
have lapsed or expired); and (C) in the event of a change in the number of
shares of Common Stock to which the holders of such rights, options or
warrants are entitled, the Conversion Price shall be adjusted to reflect
the Conversion Price which would then be in effect if such holder had
initially been entitled to such changed number of shares of Common Stock.
Notwithstanding anything herein to the contrary, no further adjustment to
the Conversion Price shall be made upon the issuance or sale of Common
Stock upon the exercise of any rights, options or warrants to subscribe for
or purchase Common Stock, if any adjustment in the Conversion Price was
made or required to be made upon the record date for the issuance or sale
of such rights, options or warrants under this clause 8(g)(iii).
Notwithstanding anything herein to the contrary, no adjustment in the
Conversion Price shall be made under this clause 8(g)(iii) to the extent
the holders of Series G Preferred Stock participate in any such
distribution in accordance with Section 4(f) hereof.
(iv) (X) In case the Corporation shall fix a record date for
the making of a distribution (other than distributions paid exclusively in
cash under subparagraph (iv)(Y) below) to all holders of any class of
Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Corporation is the continuing
corporation) of evidences of indebtedness, assets or other property, the
Conversion Price to be in effect after such record date shall be determined
by multiplying the Conversion Price in effect immediately prior to such
record date by a fraction, (A) the numerator of which shall be the
Conversion Price immediately prior to such distributions less the fair
market value (determined as set forth in paragraph 8(g)(ii) hereof) of the
portion of the assets, other property or evidence of indebtedness so to be
distributed which is applicable to one share of Common Stock and (B) the
denominator of which shall be the Conversion Price immediately prior to
such distributions. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such distribution is not
so made, the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such record date had not been fixed.
(Y) An adjustment to the Conversion Price also shall be made in
respect of dividends and distributions paid exclusively in cash to all
holders of any class of Common Stock (excluding any dividend or
distribution in connection with the liquidation, dissolution or winding-up
of the Corporation, whether voluntary or involuntary, and any cash that is
distributed upon a merger, consolidation or other transaction for which an
adjustment pursuant to paragraph 8(g)(i) is made) where the sum of (1) all
such cash dividends and distributions made within the preceding 12 months
in respect of which no adjustment has been made and (2) any cash and the
fair market value (determined as set forth in paragraph 8(g)(ii) hereof) of
other consideration paid in respect of any repurchases of Common Stock by
the Corporation or any of its subsidiaries within the preceding 12 months
in respect of which no adjustment has been made, exceeds 2% of the
Corporation's market capitalization (being the product of the then Current
Market Price of the Common Stock times the aggregate number of shares of
Common Stock then outstanding on the record date for such distribution).
The Conversion Price to be in effect after such adjustment shall be
determined by subtracting from the Conversion Price in effect prior to such
adjustment an amount equal to the quotient of (A) the sum of clause (1) and
clause (2) above and (B) the number of shares of Common Stock outstanding
on the date such adjustment is to be determined.
(Z) Notwithstanding anything herein to the contrary, no
adjustment in the Conversion Price shall be made under this clause
8(g)(iv): (a) to the extent the holders of Series G Preferred Stock
participate in any such distribution in accordance with Section 4(f) hereof
and (b) to the extent the holders of Series G Preferred Stock participate
in any such distribution by way of an adjustment to the Conversion Price
pursuant to Section 8(g)(i) hereof.
(v) No adjustment to the Conversion Price pursuant to (a)
paragraphs 8(g)(ii), 8(g)(iii) or 8(g)(iv) above shall be required unless
such adjustment would require an increase or decrease of at least $.25 in
the Conversion Price or (b) paragraph 8(g)(ii) above shall be required with
respect to rights, options, warrants or other securities outstanding on the
Issue Date or issued pursuant to the Company's employee benefit plans in
effect on the Issue Date or reserved for issuance thereunder as of the
Issue Date or stock options granted after the Issue Date pursuant to any
stock option plans adopted by the Board of Directors so long as such
options have an exercise price not less than the Market Price on the day
preceding such grant; provided, however, that any adjustments which by
reason of paragraph 8(g)(v)(a) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph 8(g) shall be made to the nearest four
decimal points.
(vi) In the event that, at any time as a result of the
provisions of this paragraph 8(g), a holder of Series G Preferred Stock
upon subsequent conversion shall become entitled to receive any shares of
Capital Stock of the Corporation other than Common Stock, the number of
such other shares so receivable upon conversion of Series G Preferred Stock
shall thereafter be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions contained
herein.
(vii) If, as a result of the operation of paragraphs
8(g)(ii), 8(g)(iii) or 8(g)(iv) above and corresponding provisions in the
Series H Designation, the cumulative number of shares of Class A Common
Stock issued or issuable upon conversion of the Series G Preferred Stock
and Series H Preferred Stock, after giving effect to (x) the adjustments
described in such paragraphs and corresponding provisions in the Series H
Designation and (y) all prior conversions of the Series G Preferred Stock
and Series H Preferred Stock, would equal or exceed a number (the
"Threshold Number") equal to 20% of the outstanding shares of Class A
Common Stock as of the Issue Date and if the Company receives a written
opinion of its outside counsel that the issuance of such shares in excess
of the Threshold Number would violate the rules of the Nasdaq National
Market or any other exchange on which the Class A Common Stock is then
quoted or traded, then until and unless the Corporation obtains the
approval of its common stockholders for the issuance of any such shares of
Class A Common Stock in excess of the Threshold Number, the holders shall
only be entitled to exercise their conversion rights with respect to a
maximum number of Series G and Series H Preferred Stock that would not
result in an amount of shares of Class A Common Stock being issued in
excess of the Threshold Number, but in any case, the Conversion Price shall
be adjusted as provided in such paragraphs. If, as a result of the
operation of the preceding sentence, the conversion rights of the holders
of Series G Preferred Stock are limited by operation thereof because
appropriate stockholder approval has not been obtained, the Corporation
agrees for the benefit of the holders of Series G Preferred Stock and
Series H Preferred Stock to use its reasonable best efforts to seek, as
promptly as reasonably practicable, the requisite approval of its common
stockholders (and shall seek such approval as often as necessary to obtain
such approval), and will recommend to its stockholders that they vote in
favor of a resolution providing for such approval, for the amount of shares
of Class A Common Stock that would be issued or issuable upon conversion in
full of all outstanding Series G and Series H Preferred Stock.
Notwithstanding anything to the contrary set forth above, the holders of
Series G Preferred Stock and Series H Preferred Stock shall be entitled to
exercise such holders' conversion rights in full (after giving effect to
any and all anti-dilution adjustments resulting from operation of
paragraphs 8(g)(ii), 8(g)(iii) or 8(g)(iv)) in connection with any merger,
consolidation or other transaction in which such Series G Preferred Stock,
Series H Preferred Stock or Class A Common Stock is being converted into or
exchanged for cash, securities or other property in connection with such
merger, consolidation or other transaction. In the event that the
Corporation elects to redeem the shares of Series G Preferred Stock and
Series H Preferred Stock at a time when the holders' right to convert such
shares into Class A Common Stock is limited as provided in this paragraph
(g), and such holders seek to exercise such conversion rights prior to the
date fixed for redemption in accordance with this Section 8 (the
"Redemption Date"), then if the total number of shares of Class A Common
Stock issued or issuable upon conversion of such shares, after giving
effect to any adjustments provided under the first sentence of this section
(the "Cumulative Number"), would exceed the Threshold Number, the holders
shall be entitled to convert such number of shares of Series G Preferred
Stock and Series H Preferred Stock into a number of shares of Class A
Common Stock up to the Threshold Number, and with respect to the balance of
such shares, the Corporation shall cancel such shares and shall pay the
holders in lieu thereof an amount in cash equal to (a)(i) the Cumulative
Number minus (ii) the Threshold Number multiplied by (b) the Market Price
per share of Class A Common Stock on the business day next preceding the
business day which is deemed the Redemption Date.
(h) All adjustments pursuant to this paragraph 8 shall be
notified to the holders of the Series G Preferred Stock and such notice
shall be accompanied by a schedule of computations of the adjustments.
9. Voting Rights. (a) The holders of record of shares of Series G
Preferred Stock shall be entitled to vote on an as-converted basis
(calculated in accordance with Section 8(a) as of the close of trading on
the last trading day of the most recently ended fiscal quarter of the
Corporation) with the Class A Common Stock as a single class on all matters
presented to the holders of the Class A Common Stock for vote, except as
hereinafter provided in this Section 9 or as otherwise provided by law. So
long as the provisions of (I) Section 9(b)(i) hereof entitle the holders of
Series G Preferred Stock to designate the Series G Designee (as defined
below) or (II) Section 9(b)(i) of the Series C Designation entitle the
holders of Series C Preferred Stock to designate the Series C Designee (as
defined in the Series C Designation), the holders of Series G Preferred
Stock shall not be entitled to vote as to the election of other directors
of the Corporation.
(b) (i) So long as the holders of the outstanding shares of
Series C Preferred Stock are entitled, under Section 9(b)(i) of the Series
C Designation, to designate the Series C Designee to the Board of
Directors, the holders of the outstanding shares of Series G Preferred
Stock shall not be entitled to designate any directors for election to the
Board of Directors. Subject to the provisions of this Section 9, from and
after the date the holders of the outstanding shares of Series C Preferred
Stock are no longer entitled to designate the Series C Designee, the
holders of the outstanding shares of Series G Preferred Stock shall be
entitled to designate one director (the "Series G Designee") for election
to the Board of Directors and such holders shall have the exclusive right
to vote for the election of such designee to the Board of Directors. The
foregoing right to designate and elect the Series G Designee shall cease
immediately upon less than 40% of the aggregate number of shares of Series
C Preferred Stock issued on the original date of issuance of the Series C
Preferred Stock, Series D Preferred Stock issued on the original date of
issuance of the Series D Preferred Stock, Series G Preferred Stock issued
on the Issue Date and Series H Preferred Stock issued on the original date
of issuance of the Series H Preferred Stock (such aggregate number of
shares of Series C Preferred Stock, Series D Preferred Stock, Series G
Preferred Stock and Series H Preferred Stock being referred to herein as
the "Total Preferred Shares") being outstanding, whereupon the total number
of directors then constituting the whole Board of Directors shall
automatically be decreased by one, and the term of office of the Series G
Designee shall terminate. For so long as, and only for so long as, (i) less
than 40% of the Total Preferred Shares are outstanding, (ii) no shares of
Series C Preferred Stock issued on the original date of issuance of the
Series C Preferred Stock are outstanding, and (iii) any shares of Series G
Preferred Stock issued on the Issue Date are outstanding, the holders of
the outstanding shares of the Series G Preferred Stock shall be entitled to
designate one board observer (the "Series G Board Observer"). The foregoing
right to designate the Series G Observer shall cease, and the observation
rights of the Series G Board Observer shall automatically terminate,
immediately upon there being no outstanding shares of Series G Preferred
Stock. The Series G Designee may be removed with or without cause by the
holders of the shares of Series G Preferred Stock, and such holders shall
have the right to designate and elect a successor to any such removed
Series G Designee. The "Series G Board Observer" means a person who shall
not be a member of the Board of Directors and who shall have the rights as
agreed to with the Corporation, provided that such rights shall satisfy the
requirement of contractual management rights for purposes of the Department
of Labor's "plan assets" regulation.
(ii) If and whenever six quarterly dividends payable on the
Series G Preferred Stock have not been paid in full or if the Corporation
shall have failed to discharge its Mandatory Redemption Obligation
hereunder or the Corporation shall have failed to comply with Section 9(d)
hereof, the total number of directors then constituting the whole Board of
Directors automatically shall be increased by one and the holders of
outstanding shares of Series G Preferred Stock shall be entitled to elect
one additional director to serve on the Board of Directors at any annual
meeting of stockholders or special meeting held in place thereof, or at a
special meeting of the holders of the Series G Preferred Stock called as
hereinafter provided. Whenever all arrears in dividends and Special Amounts
on the Series G Preferred Stock then outstanding shall have been paid and
dividends thereon for the current quarterly dividend period shall have been
paid or declared and set apart for payment, or the Company shall have
fulfilled its Mandatory Redemption Obligation hereunder, then the right of
the holders of outstanding shares of Series G Preferred Stock to elect such
additional director shall cease (but subject always to the same provisions
for the vesting of such voting rights in the case of any similar future
arrearage in six quarterly dividends or failure to fulfill any Mandatory
Redemption Obligation hereunder), and the term of office of any person
elected as director by the holders of outstanding shares of Series G
Preferred Stock pursuant to this subparagraph (b)(ii) shall forthwith
terminate and the total number of directors then constituting the whole
Board of Directors automatically shall be reduced by one. At any time after
voting power to elect one additional director shall have become vested and
be continuing in the holders of outstanding shares of Series G Preferred
Stock pursuant to this subparagraph (b)(ii), or if a vacancy shall exist in
the office of a director elected by the holders of outstanding shares of
Series G Preferred Stock pursuant to this subparagraph (b)(ii), a proper
officer of the Corporation may, and upon the written request of the holders
of record of at least twenty-five percent (25%) of the shares of Series G
Preferred Stock then outstanding addressed to the Secretary of the
Corporation shall, call a special meeting of the holders of Series G
Preferred Stock, for the purpose of electing the one additional director
which such holders are entitled to elect pursuant to this subparagraph
(b)(ii). If such meeting shall not be called by a proper officer of the
Corporation within twenty (20) days after personal service of said written
request upon the Secretary of the Corporation, or within twenty (20) days
after mailing the same within the United States by certified mail,
addressed to the Secretary of the Corporation at its principal executive
offices, then the holders of record of at least twenty-five percent (25%)
of the outstanding shares of Series G Preferred Stock may designate in
writing one of their number to call such meeting at the expense of the
Corporation, and such meeting may be called by the person so designated
upon the notice required for the annual meeting of stockholders of the
Corporation and shall be held at the place for holding the annual meetings
of stockholders. Any holder of Series G Preferred Stock so designated shall
have, and the Corporation shall provide, access to the lists of
stockholders to be called pursuant to the provisions hereof.
Notwithstanding the foregoing, so long as the holders of the Series C
Preferred Stock are entitled, collectively, to elect a director pursuant to
Section 9(b)(ii) of the Series C Designation, the holders of the Series G
Preferred Stock shall not be entitled to elect any directors under this
Section 9(b)(ii).
(c) Without the written consent of holders of a majority of the
outstanding shares of Series G Preferred Stock or the affirmative vote of
holders of a majority of the outstanding shares of Series G Preferred Stock
at a meeting of the holders of Series G Preferred Stock called for such
purpose, the Corporation will not amend, alter or repeal any provision of
the Restated Certificate of Incorporation or this Certificate of
Designation so as to adversely affect the preferences, rights or powers of
the Series G Preferred Stock or to authorize the issuance of, or to issue
any, additional shares of Series G Preferred Stock; provided that any such
amendment that changes any dividend or other amount payable on or the
liquidation preference of the Series G Preferred Stock shall require the
written consent of holders of two-thirds of the outstanding shares of
Series G Preferred Stock or the affirmative vote of holders of two-thirds
of the outstanding shares of Series G Preferred Stock at a meeting of the
holders of Series G Preferred Stock called for such purpose.
(d) Without the written consent of holders of a majority of the
outstanding shares of Series G Preferred Stock or the affirmative vote of
holders of a majority of the outstanding shares of Series G Preferred Stock
at a meeting of such holders called for such purpose, the Corporation will
not create, authorize or issue any (i) Parity Securities or (ii) Senior
Securities except Senior Securities issued in accordance with paragraph
(f)(ii) of the Certificate of Designation for the Senior Exchangeable
Redeemable Preferred Shares as in effect on December 3, 1999.
(e) Subject to the provisions of Sections 8 and 10 hereof, the
Corporation may, without the consent of any holder of Series G Preferred
Stock, consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets as an entirety to, any Person, provided
that: (1) the successor, transferee or lessee (if not the Corporation) is
organized and existing under the laws of the United States of America or
any State thereof or the District of Columbia and the Series G Preferred
Stock shall be converted into or exchanged for and shall become shares of,
or interests in, such successor, transferee or lessee, having in respect of
such successor, transferee, or lessee substantially the same powers,
preferences and relative, participating, optional or other special rights
and the qualifications, limitations or restrictions thereof, that the
Series G Preferred Stock has immediately prior to such transaction; and (2)
the Corporation delivers to the transfer agent an officers' certificate and
an opinion of counsel stating that such consolidation, merger, conveyance,
transfer or lease complies with this Certificate of Designation. In the
event of any consolidation or merger or conveyance, transfer or lease of
all or substantially all of the assets of the Corporation that is permitted
pursuant to this paragraph (e), the successor resulting from such
consolidation or into which the Corporation is merged or the transferee or
lessee to which such conveyance, transfer or lease is made, will succeed
to, and be substituted for, and may exercise every right and power of, the
Corporation with respect to the Series G Preferred Stock (or the shares or
interests into, or for which, the Series G Preferred Stock is converted or
exchanged), and thereafter, except in the case of a lease, the predecessor
(if still in existence) shall be released from its obligations and
covenants with respect to the Series G Preferred Stock.
(f) In exercising the voting rights set forth in this paragraph
9, each share of Series G Preferred Stock shall have one vote for each
share of Class A Common Stock into which such share is convertible,
calculated in accordance with Section 8(a) hereof. Except as otherwise
required by applicable law or as set forth herein, the shares of Series G
Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers and the consent of the holders
thereof shall not be required for the taking of any corporate action.
10. Change of Control. (a) Within thirty days of a Change of
Control (the date of such occurrence being the "Change of Control Date"),
the Corporation shall notify the holders of the Series G Preferred Stock of
such occurrence and shall be required to make an offer (the "Offer to
Purchase") to each holder of shares of Series G Preferred Stock (subject to
the rights of the holders pursuant to Section 8 hereof) to repurchase such
holder's shares of Series G Preferred Stock, or such portion thereof as may
be determined by such holder, at a price per share in cash equal to 101% of
the Liquidation Preference plus, without duplication, an amount in cash
equal to all accumulated and unpaid dividends per share (including an
amount in cash equal to a prorated dividend for the period from the last
Dividend Payment Date through such date); provided that if any holders of
Series G Preferred Stock tender their shares pursuant to the Offer to
Purchase, the Corporation shall be required to purchase a proportional
amount of the Series H Preferred Stock.
(b) The Offer to Purchase must take place on a Business Day (the
"Change of Control Payment Date") not later than 30 days following the
Change of Control Date. On the Change of Control Payment Date, the
Corporation shall (A) accept for payment the Series G Preferred Stock
validly tendered pursuant to the Offer to Purchase, (B) pay to the holders
of shares so accepted the purchase price therefor in cash and (C) cancel
and retire each surrendered certificate. Unless the Corporation defaults in
the payment for the Series G Preferred Stock tendered pursuant to the Offer
to Purchase, dividends will cease to accrue with respect to the Series G
Preferred Stock tendered and all rights of holders of such tendered shares
will terminate, except for the right to receive payment therefor.
(c) The Corporation will comply with any securities laws and
regulations, to the extent such laws and regulations are applicable to the
repurchase of the Series G Preferred Stock in connection with an Offer to
Purchase.
(d) Notwithstanding anything to the contrary contained in this
Section 10, the Company will not repurchase or redeem any such stock
pursuant to this Section 10 until it has repurchased or repaid all
outstanding debt obligations pursuant to rights triggered pursuant to the
terms thereof resulting from the Change of Control in question.
11. Reports. So long as any of the Series G Preferred Stock is
outstanding, in the event the Corporation is not required to file quarterly
and annual financial reports with the Securities and Exchange Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act, the
Corporation will furnish the holders of the Series G Preferred Stock with
reports containing the same information as would be required in such
reports.
12. General Provisions. (a) The term "person" as used herein
means any corporation, limited liability company, partnership, trust,
organization, association, other entity or individual.
(b) The term "outstanding", when used with reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation
or a subsidiary of the Corporation.
(c) The headings of the sections, paragraphs, subparagraphs,
clauses and subclauses of this Certificate of Designation are for
convenience of reference only and shall not define, limit or affect any of
the provisions hereof.
<PAGE>
IN WITNESS WHEREOF, said NEXTLINK Communications, Inc. has caused
this Certificate of Designation to be signed by Gary D. Begeman, its Senior
Vice President and Secretary this __ day of July, 2000.
NEXTLINK COMMUNICATIONS, INC.
By:
------------------------------
Name: Gary D. Begeman
Title: Senior Vice President
and Secretary
