<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ITC/\DeltaCom, Inc.
---------------------------------------------
(Exact name of registrant as specified in its charter
Delaware 58-2301135
- ------------------------- ----------------------
(State of incorporation (I.R.S. Employer
of organization Identification No.
206 West Ninth Street, West Point, GA 31833
------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [_]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: 333-36683
---------
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.01 PER SHARE
---------------------------------------------
(Title of class)
<PAGE>
ITEM 1. Description of Registrant's Securities to be Registered.
A description of the Registrant's Common Stock, par value $.01 per share
(the "Common Stock"), will be set forth under the caption "Description of
Capital Stock" in the form of prospectus to be filed by the Registrant with the
Securities and Exchange Commission pursuant to Rule 424(b) under the Securities
Act of 1933, as amended, and such prospectus shall be deemed to be incorporated
by reference herein.
- 2 -
<PAGE>
ITEM 2. Exhibits
The following documents are being filed as exhibits to this
registration statement.
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
1 Form of Common Stock certificate of ITC/\DeltaCom, Inc.
2 Certificate of Incorporation of ITC/\DeltaCom, Inc.
3 Amended and Restated Bylaws of ITC/\DeltaCom, Inc.
</TABLE>
- 3 -
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
ITC/\DELTACOM, INC.
Date: October 21, 1997 By: /s/ J. Thomas Mullis
------------------------------
J. Thomas Mullis
Senior Vice President-General
Counsel, Secretary
- 4 -
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1 Form of Common Stock certificate of ITC/\DeltaCom, Inc.
2 Certificate of Incorporation of ITC/\DeltaCom, Inc.
3 Amended and Restated Bylaws of ITC/\DeltaCom, Inc.
</TABLE>
- 5 -
<PAGE>
Exhibit 1
ITC/\DELTACOM
COMMON STOCK COMMON STOCK
NUMBER SHARES
---------------- ----------------
---------------- ----------------
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR
THE STATE OF DELAWARE CERTAIN DEFINITIONS
CUSIP 45031T 10 4
- --------------------------------------------------------------------------------
This certifies that
is the owner of
- --------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE OF $.01 PER
SHARE, OF
ITC/\DeltaCom, Inc.
(hereinafter, the "Corporation") transferable on the books of the
Corporation by the holder hereof in person or by duly authorized attorney upon
surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall
be held subject to all of the provisions of the Certificate of Incorporation and
by-laws of the Corporation and all amendments thereto, copies of which are on
file with the Transfer Agent to all of which the holder of this certificate by
acceptance hereof assents. This certificate is not valid unless countersigned
and registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of the duly authorized officers of the Corporation.
Dated:
Countersigned and Registered:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(New York, New York) Transfer Agent
and Registrar
BY
Authorized Signature
-------------------------- --------------------------
THE FACSIMILE SIGNATURE OF THE FACSIMILE SIGNATURE OF
[CORPORATE SEAL APPEARS HERE]
-------------------------- --------------------------
TO APPEAR HERE TO APPEAR HERE
-------------------------- --------------------------
SECRETARY PRESIDENT
<PAGE>
ITC/\DeltaCom, Inc.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OR SERIES OF
STOCK. IN ADDITION, THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
REDEMPTION BY THE CORPORATION IN CERTAIN LIMITED CIRCUMSTANCES. THE CORPORATION
WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS A STATEMENT OF
THE TERMS AND CONDITIONS OF SUCH REDEMPTION PROVISIONS AND THE POWER,
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST
SHOULD BE ADDRESSED TO THE SECRETARY OF THE CORPORATION.
The following abbreviations, when used in the inscription on the face of
the certificate, shall be construed as though they were written out in full
according to applicable terms or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______________
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with right Custodian ________________________
of survivorship and not as (Minor)
tenants in common
under Uniform Gifts to Minors
Act ______________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares
- ------------------------------------------------------------------------
of the capital stock represented by this Certificate, and does hereby
irrevocably constitute and appoint
Attorney
- ----------------------------------------------------------------------
to transfer the said stock on the books of the Corporation with full power of
substitution in the premises.
Dated ____________________
X
---------------------------------------------------------
X
---------------------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF
THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED;
By
- --------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
<PAGE>
Exhibit 2
CERTIFICATE OF OWNERSHIP AND MERGER OF
ITC HOLDING COMPANY, INC., A DELAWARE CORPORATION,
WITH AND INTO
ITC/\DELTACOM, INC., A DELAWARE CORPORATION
Pursuant to Section 253 of the General Corporation Law of the State of
Delaware, as amended (the "DGCL"), ITC HOLDING COMPANY, INC. ("ITC HOLDING")
hereby certifies that:
1. ITC Holding was incorporated in the State of Delaware on August 25, 1994.
2. ITC Holding is the sole owner of 100% of the outstanding shares of capital
stock of ITC/\DeltaCom, Inc. ("ITC/\DELTACOM"), consisting of 15 million
shares of Class B Common Stock, par value $.01 per share.
3. ITC/\DeltaCom was incorporated in the State of Delaware on March 24, 1997.
4. At a meeting duly held on October 14, 1997, the Board of Directors of ITC
Holding duly adopted the resolutions attached as Appendix A hereto,
----------
incorporated by reference herein and made an integral part hereof (the
"MERGER RESOLUTIONS"), authorizing the merger of ITC Holding with and into
ITC/\DeltaCom (the "MERGER") pursuant to Section 253 of the DGCL, such
Merger to be effective at such time and on such date as provided in the
Merger Resolutions and in this Certificate of Ownership and Merger (the
"EFFECTIVE TIME"), subject to the further terms and conditions specified
in the Merger Resolutions.
5. The Merger, on the terms and conditions set forth herein, has been
approved by holders of a majority of the outstanding shares of common
stock of ITC Holding entitled to vote thereon, and by the sole stockholder
of the outstanding shares of preferred stock of ITC Holding, in each case
by written consent without a meeting in accordance Section 228 of the
DGCL.
6. The name of the surviving corporation shall be "ITC/\DeltaCom, Inc." and
the Certificate of Incorporation of ITC/\DeltaCom (including the
Certificate of Designations for the Series A Convertible Preferred Stock,
par value $.01 per share, of ITC/\DeltaCom set forth in Attachment 1
------------
thereto) shall be amended in the Merger to read in its entirety as set
forth in Exhibit A to the Merger Resolutions and, as so amended, shall be
---------
the certificate of incorporation of the surviving corporation.
7. The Effective Time shall be 11:00 p.m., Eastern Daylight Time, on October
20, 1997.
<PAGE>
IN WITNESS WHEREOF, ITC Holding Company, Inc. has caused this Certificate
of Ownership and Merger to be executed by William H. Scott, III, its President
and Dabsey M. Gray, its Vice President, Controller and Assistant Secretary, this
20th day of October, 1997.
ITC HOLDING COMPANY, INC.,
a Delaware corporation
BY: /s/ William H. Scott, III
-------------------------
NAME: William H. Scott, III
TITLE: President
ATTEST
By: /s/ Dabsey M. Gray
----------------------------
Name: Dabsey M. Gray
Title: Vice President, Controller and Assistant Secretary
2
<PAGE>
APPENDIX A
----------
MERGER RESOLUTIONS OF THE BOARD OF DIRECTORS OF ITC HOLDING COMPANY, INC.
[INCLUDING IN EXHIBIT A, THE CERTIFICATE OF INCORPORATION OF
---------
ITC/\DELTACOM, INC. (INCLUDING THE
SERIES A PREFERRED CERTIFICATE OF DESIGNATIONS)]
<PAGE>
Appendix A
ITC HOLDING COMPANY, INC., A DELAWARE CORPORATION
RESOLUTIONS OF THE BOARD OF DIRECTORS
ADOPTED AT A MEETING HELD
OCTOBER 14, 1997
MERGER OF THE CORPORATION INTO ITS SUBSIDIARY, ITC/\DELTACOM, INC.
WHEREAS, on September 30, 1997, the Corporation's subsidiary,
ITC/\DeltaCom, filed a registration statement with the Securities and Exchange
Commission with respect to a proposed underwritten initial public offering of
common stock (the "ITC/\DELTACOM PUBLIC EQUITY OFFERING"), which registration
statement has not yet become effective;
WHEREAS, in order to facilitate the ITC/\DeltaCom Public Equity Offering,
the Corporation is undertaking the Reorganization, including, among other
things, the Reorganization Transfer to ITC West Point;
WHEREAS, as part of the Reorganization, the Board of Directors believes
that it is advisable and in the best interests of the Corporation and its
stockholders that, subsequent to completion of the Reorganization Transfer, the
Corporation be merged with and into ITC/\DeltaCom (the "MERGER") pursuant to the
provisions of Section 253 of the Delaware General Corporation Law, substantially
on the terms and conditions set forth in these resolutions (the "MERGER
RESOLUTIONS");
WHEREAS, the Merger is intended to qualify for federal income tax purposes
as a "reorganization" under the provisions of Section 368(a) of the Internal
Revenue Code of 1986, as amended;
WHEREAS, as part of the Reorganization, the Board of Directors believes
that it is desirable and in the best interests of the Corporation to convert the
outstanding but unexercised options to purchase ITC Holding capital stock (the
"ITC HOLDING OPTIONS"), into separately exercisable options to acquire (i)
common stock of ITC/\DeltaCom (the "ITC/\DELTACOM OPTIONS") and (ii) common
stock of ITC West Point (the "ITC WEST POINT COMMON" and the "ITC WEST POINT
OPTIONS");
MERGER; EFFECTIVE TIME; PREPARATION, EXECUTION AND FILING OF
CERTIFICATE OF OWNERSHIP AND MERGER
NOW THEREFORE BE IT
RESOLVED FURTHER, that it is advisable and in the best interests of the
Corporation and its stockholders that the Corporation consummate the Merger;
<PAGE>
RESOLVED FURTHER, that the Corporation merge with and into ITC/\DeltaCom;
RESOLVED FURTHER, that the Merger shall be effective (the "EFFECTIVE TIME")
on the date and at the time specified in, and subject to the filing with the
Secretary of State of the State of Delaware of, an appropriate Certificate of
Ownership and Merger incorporating these Merger Resolutions, and further subject
to the approval of the Merger by holders of a majority of the outstanding shares
of the Corporation's common stock, par value $.01 per share ("ITC HOLDING
COMMON") and by the sole holder of the outstanding shares of the Corporation's
Series A Convertible Preferred Stock, par value $.01 per share ("ITC HOLDING
PREFERRED"), and to the further terms and conditions set forth in these Merger
Resolutions;
RESOLVED FURTHER, that each of the Chairman, President or any Senior Vice
President of this Corporation hereby is authorized to prepare or cause to be
prepared, and to execute, and each of the Secretary or any Assistant Secretary
hereby is authorized to attest, a Certificate of Ownership and Merger complying
with the requirements of Section 253 of the Delaware General Corporation Law,
setting forth a copy and the date of adoption of these Merger Resolution, and
specifying the Effective Time, and to cause such Certificate of Ownership and
Merger to be filed with the Secretary of State of the State of Delaware, and to
do all acts and things, whether within or without the State of Delaware, that,
in the determination of such officer, may be in any way necessary or appropriate
to effect the Merger (such determination to be conclusively, but not
exclusively, evidenced by the execution of such certificate or certificates by
any such officer);
RESOLVED FURTHER, that, at the Effective Time, the separate corporate
existence of ITC Holding shall cease and ITC/\DeltaCom shall assume all
obligations of the Corporation outstanding at such time that have not otherwise
been assigned to and assumed by another entity or person;
CERTIFICATE OF INCORPORATION, BYLAWS, OFFICERS AND DIRECTORS
OF SURVIVING CORPORATION
RESOLVED FURTHER, that at the Effective Time, the name of the surviving
corporation shall be "ITC/\DeltaCom, Inc." and, by virtue of the Merger, the
Certificate of Incorporation of ITC/\DeltaCom shall be amended in its entirety
to read in the form presented to the Board of Directors for this meeting and
attached to the minutes thereof as EXHIBIT 2 (including as an integral part
---------
thereof and incorporated by reference therein, the Certificate of Designations
for the Series A Convertible Preferred Stock, $.01 per share, of ITC/\DeltaCom
set forth in ATTACHMENT 1 to such Certificate of Incorporation (the "CERTIFICATE
------------
OF DESIGNATIONS")), and, as so amended, shall be, collectively, the certificate
of incorporation of the surviving corporation (the "ITC/\DELTACOM CHARTER");
<PAGE>
RESOLVED FURTHER, that the Bylaws of ITC/\DeltaCom as in effect immediately
prior to the Effective Time shall be the Bylaws of the surviving corporation as
of the Effective Time, without change or amendment until thereafter amended in
accordance with the provisions thereof and applicable law;
RESOLVED FURTHER, that the persons who are officers and directors of
ITC/\DeltaCom immediately prior to the Effective Time shall, after the Effective
Time, be the officers and directors of the surviving corporation, without change
until their successors have been duly elected and qualified;
EFFECT ON CAPITAL STOCK AND STOCK OPTIONS
EFFECT ON CAPITAL STOCK
RESOLVED FURTHER, that at the Effective Time:
(i) each outstanding share of ITC/\DeltaCom Class B Common Stock owned
of record by ITC Holding shall cease to be outstanding, without any payment
being made in respect thereof;
(ii) each share of ITC Holding Common shall be converted into 2.304012
(assuming that there are 24,075,000 shares of capital stock of ITC/\DeltaCom
outstanding immediately after such conversion) fully paid and nonassessable
shares of common stock, par value $.01 per share, of ITC/\DeltaCom, having such
rights, terms, and preferences as set forth in the ITC/\DeltaCom Charter (the
"ITC/\DELTACOM COMMON") (the "COMMON STOCK CONVERSION RATIO"); provided,
however, that no fractional shares of ITC/\DeltaCom Common shall be issued
pursuant to such conversion, and in lieu of fractional shares of ITC/\DeltaCom
Common resulting from such conversion, there shall be paid, upon surrender of
certificates formerly representing shares of ITC Holding Common, to each holder
of ITC Holding Common who otherwise would be entitled to receive a fractional
share of ITC/\DeltaCom Common an amount of cash (without interest) determined by
multiplying such fraction by the initial public offering price per share of
ITC/\DeltaCom's common stock;
(iii) each share of ITC Holding Preferred shall be converted into
2.304012 (assuming that there are 24,075,000 shares of capital stock of
ITC/\DeltaCom outstanding immediately after such conversion) fully paid and
nonassessable shares of Series A Convertible Preferred Stock, par value $.01 per
share, of ITC/\DeltaCom, having such rights, terms, and preferences, as are set
forth in the Certificate of Designations attached as Attachment 1 to the
------------
ITC/\DeltaCom Charter (the "ITC/\DELTACOM PREFERRED"); provided, however, that
no fractional shares of ITC/\DeltaCom Preferred shall be issued pursuant to such
conversion, and in lieu of fractional shares of ITC/\DeltaCom Preferred
resulting from such conversion, there shall be paid, upon surrender of
certificates formerly representing shares of ITC Holding Preferred, to each
holder of ITC Holding
<PAGE>
Preferred who otherwise would be entitled to receive a fractional share of
ITC/\DeltaCom Preferred an amount of cash (without interest) determined by
multiplying such fraction by the Initial Conversion Price for the ITC/\DeltaCom
Preferred (as such term is defined in the Certificate of Designations for the
ITC/\DeltaCom Preferred);
(iv) certificates for the ITC/\DeltaCom Common shall be issued (and
cash in lieu of fractional shares shall be paid) to each former holder of ITC
Holding Common upon surrender to ITC/\DeltaCom of such stockholder's
certificates representing its shares of ITC Holding Common outstanding
immediately prior to the Effective Time, and certificates for the ITC/\DeltaCom
Preferred shall be issued (and cash in lieu of fractional shares shall be paid)
to each holder of ITC Holding Preferred upon surrender to ITC/\DeltaCom of such
stockholder's certificates representing its shares of ITC Holding Preferred
outstanding immediately prior to the Effective Time;
RESOLVED FURTHER, that all certificates representing shares of
ITC/\DeltaCom stock distributed in connection with the Merger shall bear legends
restricting transfer as required under applicable corporate and securities laws;
EFFECT ON ITC HOLDING STOCK OPTIONS
RESOLVED FURTHER, that at the Effective Time, each outstanding ITC Holding
Option will convert into (i) ITC/\DeltaCom Options representing the option to
acquire the number of shares of ITC/\DeltaCom Common obtained by multiplying the
Common Stock Conversion Ratio by the number of shares of ITC Holding common that
were subject to the ITC Holding Option, minus any fractional shares and (ii) one
ITC West Point Option (such that, including any fractional shares, the number of
shares that may be obtained upon exercise equals the number of shares of
ITC/\DeltaCom Common or ITC West Point, as the case may be, that the option
holder would have received had he or she been the holder at the Effective Time
of the shares of ITC Holding Common that would have been received upon exercise
of the ITC Holding Option);
RESOLVED FURTHER, that, promptly after the initial public offering price
per share of the ITC/\DeltaCom Common is established (the "VALUATION TIME"), the
relative fair market values of ITC/\DeltaCom and ITC West Point will be
established for purposes of determining the option exercise price for the
replacement options. The fair market value of ITC/\DeltaCom will be a function
of the initial public offering price per share of ITC/\DeltaCom Common, and the
fair market value of ITC West Point will be established by the Board of
Directors of ITC West Point (or a committee thereof), using a methodology
consistent with past practices of the Corporation for determining fair market
values for purposes of granting incentive stock options of the Corporation;
<PAGE>
RESOLVED FURTHER, that the aggregate option exercise price payable by a
holder of ITC Holding Stock Options with respect to shares subject to
unexercised ITC Holding Stock Options shall be allocated between the
ITC/\DeltaCom Options and the ITC West Point Options based on the relative fair
market values of ITC/\DeltaCom and ITC West Point at the Valuation Time;
RESOLVED FURTHER, that each holder of ITC Holding Options shall be paid as
compensation a cash amount equal to the fair market value as of the Valuation
Time of any fractional share resulting from the conversion of the ITC Holding
Options into ITC/\DeltaCom Options in connection with the Merger;
EFFECT ON OUTSTANDING ITC/\DELTACOM OPTIONS
RESOLVED FURTHER, that each holder of options to purchase shares of
ITC/\DeltaCom Common under the ITC/\DeltaCom 1997 Stock Option Plan or the
ITC/\DeltaCom Director Stock Option Plan, shall be paid as compensation a cash
amount equal to the fair market value as of the Valuation Time of any fractional
share(s) resulting from adjustment of such stock options in connection with the
Merger.
RESOLVED FURTHER, that the ITC/\DeltaCom Options and the ITC West Point
Options will otherwise have substantially the same terms as the ITC Holding
Stock Options being converted with respect to vesting, methods of exercise,
forfeiture and effect of termination of employment (adjusted as required
(including, without limitation, adjustments to vesting, plan administration, and
incentive/non-incentive option status) to give effect to the post-Reorganization
structures of ITC/\DeltaCom and ITC West Point); and
CONDITIONS TO EFFECTIVENESS OF THE MERGER
RESOLVED FURTHER, that the following shall be conditions to the
effectiveness of the Merger and the transactions contemplated thereby:
(i) the Merger shall have been approved by holders of a majority of
the outstanding ITC Holding Common entitled to vote thereon and by holders of at
least two-thirds of the outstanding ITC Holding Preferred entitled to vote
thereon;
(ii) all regulatory approvals necessary or desirable in connection
with the consummation of the Merger and the transactions contemplated thereby
shall have been obtained or waived by the Corporation;
(iii) the Reorganization Transfer shall have been completed; and
(iv) no suit, action, proceeding or other litigation shall have been
commenced or threatened to be commenced which, in the opinion of the Corporation
or ITC/\DeltaCom, would pose a material restriction on or impair consummation of
<PAGE>
the Merger, or the conduct of the business of or ITC/\DeltaCom after the
Effective Time, or create a risk of subjecting the Corporation or ITC/\DeltaCom,
or their respective stockholders, officers, or directors, to material damages,
costs, liability or other relief in connection with the Merger;
RECOMMENDATION TO ITC HOLDING STOCKHOLDERS
RESOLVED FURTHER, that the proposed Merger hereby is determined to be
advisable and in the best interests of the stockholders of ITC Holding, and the
Board of Directors hereby recommends approval of the Merger by the stockholders
of the Corporation;
RESOLVED FURTHER, that the officers of the Corporation (or any one or more
of them), in the name and on behalf of the Corporation, hereby are authorized to
submit the terms of the proposed Merger to the stockholders of the Corporation
for approval;
INFORMATION STATEMENT
RESOLVED FURTHER, that the Information Statement prepared in connection
with the Merger hereby is approved and adopted (including, specifically and
without limitation, the valuations as of September 30, 1997 of the Corporation's
subsidiary businesses set forth therein and the valuations as of August 31, 1997
of certain assets of the Corporation set forth in Attachment F thereto);
------------
RESOLVED FURTHER, that the officers of the Corporation (or any one or more
of them), in the name and on behalf of the Corporation, hereby are authorized to
provide the Information Statement to the stockholders of the Corporation in
substantially the form provided to the Board of Directions in connection with
this meeting (a copy of which is attached to the Minutes), with such changes,
additions, and deletions as any such officer may determine to be necessary or
appropriate (such determination to be conclusively but not exclusively evidenced
by such officer's supplying the Information Statement to the stockholders of the
Corporation);
NOTIFICATION OF EFFECTIVENESS OF MERGER
RESOLVED FURTHER, that if the Merger is approved by less than unanimous
consent of the stockholders of ITC Holding, the Corporation shall provide prompt
notice of the approval of the Merger to those stockholders who have not
consented thereto in writing and who, if the action had been taken at a meeting,
would have been entitled to notice of the meeting if the record date for such
meeting had been the date that written consents signed by a sufficient number of
holders to take the action pursuant to the Section 228 of the Delaware General
Corporation Law were received by the Corporation;
<PAGE>
RESOLVED FURTHER, that after the Merger is effective, ITC/\DeltaCom shall
provide written notice thereof to each holder of ITC Holding Common, ITC Holding
Preferred, and ITC Holding Stock Options of record immediately prior the
effectiveness of the Merger, which notice shall include instructions for
obtaining new certificates representing shares of ITC/\DeltaCom Common and
ITC/\DeltaCom Preferred issuable pursuant to these resolutions;
AMENDMENT OR TERMINATION OF MERGER
RESOLVED FURTHER, that, subject to applicable law and subject to the rights
of the stockholders of the Corporation further to approve any amendment which
would have a material adverse effect on such stockholders, the Certificate of
Ownership and Merger may be amended, modified or supplemented by duly adopted
resolution of the Board of Directors at any time prior to the Effective Time
(including after approval by the stockholders of the Corporation) with respect
to any of the terms contained herein;
RESOLVED FURTHER, that at any time prior to the Effective Time, the
Certificate of Ownership and Merger may be terminated and the Merger may be
abandoned or the time of consummation of the Merger may be deferred for a
reasonable time by the Board of Directors of the Corporation, notwithstanding
approval of the Merger by the stockholders of the Corporation, if circumstances
arise which, in the opinion of the Board of Directors of the Corporation, make
the Merger inadvisable or such deferral of the time of consummation advisable;
SECURITIES LAWS MATTERS
RESOLVED FURTHER, that it is desirable and in the best interest of the
Corporation that the shares of capital stock of ITC West Point and of
ITC/\DeltaCom being distributed to stockholders of the Corporation in connection
with the Reorganization (including the Merger) (the "SECURITIES") be qualified
or registered for sale for purposes of the offering and sale in various states;
that the officers of the Corporation, or any one or more of them, are hereby
authorized, in the name and on behalf of the Corporation, to determine the
states in which appropriate action shall be taken to qualify or register for
sale all or such part of the Securities as any of them may determine to be
necessary or appropriate (such determination to be conclusively, but not
exclusively, evidenced by the action taken by such officers or officer); that
such officers, or any one or more of them, are hereby authorized, in the name
and on behalf of the Corporation, to perform any and all such acts as any of
them may determine to be necessary or appropriate (such determination to be
conclusively, but not exclusively, evidenced by the action taken by such
officers or officer) in order to comply with the applicable laws of any such
states, and in connection therewith to execute (by power of attorney or
otherwise) and file all documents, including but not limited to applications,
reports, surety bonds, irrevocable consents, and appointments of attorneys of
service of process, in
<PAGE>
connection therewith; and that the execution (by power of attorney or otherwise)
by such officers or officer of any such document or the doing by any of them of
any act in connection with the foregoing matters shall conclusively, but not
exclusively, establish their or his or her authority therefor from the
Corporation and the approval and ratification by the Corporation of the
documents so executed and the action so taken;
RESOLVED FURTHER, that the officers of the Corporation, or any one or
more of them, are hereby authorized, in the name and on behalf of the
Corporation, to take any and all action that any of them may determine to be
necessary or appropriate (such determination to be conclusively, but not
exclusively, evidenced by the action taken by such officers or officer) in order
to obtain a permit with respect to the Securities, to register or qualify the
Securities for issuance and sale, to request and obtain an exemption from
registration of the Securities, or to register or obtain a license for the
Corporation as a dealer or broker under the securities laws of such states, and
in connection with such registration, permits, licenses, qualifications and
exemptions, to execute (by power of attorney or otherwise), acknowledge, verify,
deliver, file, and publish all such applications, reports, issuer's covenants,
resolutions, irrevocable consents to service of process, powers of attorney, and
other documents as may be required under such laws or as such officers or
officer may determine to be necessary or appropriate to be filed thereunder
(such determination to be conclusively, but not exclusively, evidenced by the
action taken or execution by such officers or officer), and to take any and all
such other actions as any one or more them shall determine to be necessary or
appropriate (such determination to be conclusively, but not exclusively,
evidenced by the action taken by such officers or officer) in order to maintain
such registration, exemption, or license in effect for as long as any of them
may determine it to be in the best interests of the Corporation;
RESOLVED FURTHER, that any and all resolutions required by any such
state or other jurisdictional authority in connection therewith or determined by
such officers or officer to be necessary or appropriate and which are consistent
with the foregoing are hereby adopted, and the Secretary is directed to attach
copies of all such resolutions to these resolutions;
RESOLVED FURTHER, that the officers of the Corporation, and each of
them, in the name and on behalf of the Corporation, are hereby authorized to
take all other actions and to execute, deliver and file all documents and
instruments, as may be determined by such officer to be necessary or desirable
to carry out the foregoing resolutions and the transactions contemplated thereby
(such determination to be conclusively, but not exclusively, evidenced by such
actions or execution of such documents);
RESOLVED FURTHER, that all actions heretofore taken by the officers of
the Corporation in connection with the foregoing resolutions and the
<PAGE>
transactions contemplated thereby are hereby ratified, approved and confirmed in
all respects;
APPOINTMENT OF REORGANIZATION COMMITTEE
RESOLVED FURTHER, that Campbell B. Lanier III and William H. Scott, III are
appointed as the sole members of a newly constituted Reorganization Committee of
the Board of Directors with the power and authority in the name and on behalf of
the Corporation to (i) make any determinations regarding implementation of the
Reorganization (including, without limitation, the Merger) with respect to ITC
Holding Stock Options and the plan pursuant to which such options were granted
and (ii) execute such written consents in the name and on behalf of the
Corporation as the sole stockholder of each of ITC/\DeltaCom, ITC West Point,
and any other subsidiary of the Corporation as such Committee shall determine to
be necessary or appropriate to approve any and all matters relating to the
Reorganization (including, without limitation, the Merger) (such determination
to be conclusively, but not exclusively, evidenced by any such action by such
Committee);
GENERAL AUTHORIZATION AND RATIFICATION
RESOLVED FURTHER, that the officers of the Corporation, or any of them,
hereby are authorized, in the name and on behalf of the Corporation, to take all
such actions and to prepare, execute, deliver, file or record all such documents
as they (or any of them) may determine to be necessary or appropriate in
connection with effecting the foregoing resolutions and the transactions
contemplated thereunder (such determination to be conclusively, but not
exclusively, evidenced by the execution, delivery, filing or recordation thereof
by such officer(s)), and all such actions heretofore taken by any such officer
hereby are authorized, approved, ratified, and confirmed in all respects.
<PAGE>
Exhibit A
CERTIFICATE OF INCORPORATION
OF
ITC/\DELTACOM, INC.
1. NAME.
The name of the corporation is ITC/\DeltaCom, Inc. (the
"Corporation").
2. REGISTERED OFFICE AND AGENT.
The registered office of the Corporation shall be located at 1013
Centre Road, Wilmington, Delaware 19805 in the County of New Castle. The
registered agent of the Corporation at such address shall be Corporation Service
Company.
3. PURPOSE AND POWERS.
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 as from time to time amended (the "Delaware General
Corporation Law"). The Corporation shall have all power necessary or helpful to
engage in such acts and activities.
4. INCORPORATOR; INITIAL DIRECTORS.
4.1. Incorporator.
The name and mailing address of the incorporator (the "Incorporator")
are ITC Holding Company, Inc., 1239 O.G. Skinner Drive, West Point, Georgia
31833. The powers of the Incorporator shall terminate upon the filing of this
Certificate of Incorporation.
<PAGE>
4.2. Initial Directors.
The following persons, having the following mailing addresses, shall
serve as the directors of the Corporation until the first annual meeting of the
stockholders of the Corporation or until their successors are elected and
qualified:
<TABLE>
<CAPTION>
NAME CLASS MAILING ADDRESS
---- ----- ---------------
<S> <C> <C>
Campbell B. Lanier, III I 206 West 9th Street
West Point, Georgia 31833
Andrew M. Walker I 206 West 9th Street
West Point, Georgia 31833
William B. Timmerman I 206 West 9th Street
West Point, Georgia 31833
Robert A. Dolson II 206 West 9th Street
West Point, Georgia 31833
O. Gene Gabbard II 206 West 9th Street
West Point, Georgia 31833
William H. Scott, III II 206 West 9th Street
West Point, Georgia 31833
Donald W. Burton III 206 West 9th Street
West Point, Georgia 31833
Malcolm C. Davenport, V III 206 West 9th Street
West Point, Georgia 31833
William T. Parr III 206 West 9th Street
West Point, Georgia 31833
</TABLE>
5. CAPITAL STOCK.
5.1. Authorized Shares; Increase in Authorized Shares.
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is 95,000,000 shares, of which
90,000,000 shares shall be classified as shares of Common Stock, with a par
value of $0.01 per share ("Common Stock"), and 5,000,000 shares shall be
classified as shares of Preferred Stock, with a par value of $0.01 per share
("Preferred Stock"). The Board of Directors expressly is authorized to provide
for the issuance of shares of Preferred Stock in one or more series without the
approval of the stockholders of the Corporation. The number of authorized shares
of any class of stock of the Corporation 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 capital stock of the Corporation entitled to
vote (irrespective of the right to vote thereupon as a class that
-2-
<PAGE>
the holders of the shares of any such class would otherwise be entitled to under
Section 242(b)(2) of the Delaware General Corporation Law).
5.2. Common Stock.
5.2.1. Relative Rights.
The Common Stock shall be subject to all of the rights, privileges,
preferences and priorities of the Preferred Stock as set forth in the
certificates of designations filed to establish the respective series of
Preferred Stock. Each share of Common Stock shall have the same relative rights
as, and be identical in all respects to, all the other shares of Common Stock.
5.2.2. Voting Rights.
Each holder of record of shares of Common Stock shall be entitled to
attend all special and annual meetings of the stockholders of the Corporation
and, share for share and without regard to class, together with the holders of
all other classes of stock entitled to attend such meetings and to vote (except
any class or series of stock having special voting rights), to cast one vote in
person or by proxy for each outstanding share of Common Stock so held upon any
matter or thing (including, without limitation, the election of one or more
directors) properly considered and acted upon by the stockholders.
5.2.3. Dividends.
Subject to the rights, if any, of the holders of shares of Preferred
Stock, the holders of record of the Common Stock, and any class or series of
stock entitled to participate therewith as to dividends, shall be entitled to
receive dividends, when, as and if declared by the Board of Directors, out of
any assets legally available for the payment of dividends thereon.
5.2.4. Dissolution, Liquidation, Winding Up.
In the event of any dissolution, liquidation or winding up of the
Corporation (whether voluntary or involuntary), the holders of record of the
Common Stock then outstanding, and all holders of any class or series of stock
entitled to participate (in whole or in part) therewith as to distribution of
assets, shall become entitled to participate equally on a per-share basis in the
distribution of any assets of the Corporation remaining after the Corporation
shall have paid or provided for payment of all debts and liabilities of the
Corporation, and shall have paid (or set aside for payment) to the holders of
any class or series of stock having preference over the Common Stock in the
event of dissolution, liquidation or winding up, the full preferential amounts
(if any) to which they are entitled.
-3-
<PAGE>
5.3. Preferred Stock.
5.3.1. Issuance, Designations, Powers, Etc.
The Board of Directors expressly is authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Certificate of Incorporation, to provide (by resolution and by filing a
certificate of designations pursuant to the Delaware General Corporation Law)
for the issuance from time to time of the shares of Preferred Stock in one or
more series, to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences and other
rights of the shares of each such series and to fix the qualifications,
limitations and restrictions thereon, including, but without limiting the
generality of the foregoing, the following:
(i) the number of shares constituting that series and the
distinctive designation of that series;
(ii) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
(iii) whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such voting rights;
(iv) whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(v) whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
(vi) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(vii) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
(viii) any other relative powers, preferences, and rights of that
series, and qualifications, limitations or restrictions on that series.
Pursuant to authority granted to the Board of Directors of the
Corporation in the Corporation's original Certificate of Incorporation, on
October 16, 1997, the Board of Directors of the Corporation duly adopted
resolutions creating the Series A Convertible Preferred Stock, par value $.01
per share, of the Corporation, the
-4-
<PAGE>
rights, powers and preferences for which are set forth in Attachment 1 hereto
------------
and incorporated by reference herein and made an integral part hereof.
5.3.2. Dissolution, Liquidation, Winding Up.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of Preferred Stock of
each series shall be entitled to receive only such amount or amounts as shall
have been fixed by the certificate of designations or by the resolution or
resolutions of the Board of Directors providing for the issuance of such series.
5.4. Redemption.
Notwithstanding any other provision of this Certificate of
Incorporation to the contrary, outstanding shares of stock of the Corporation
shall always be subject to redemption by the Corporation, by action of the Board
of Directors, if in the judgment of the Board of Directors such action should be
taken, pursuant to Section 151(b) of the Delaware General Corporation Law or any
other applicable provision of law, to the extent necessary to prevent the loss
or secure the reinstatement of any license or franchise from any governmental
agency held by the Corporation or any of its subsidiaries to conduct any portion
of the business of the Corporation or any of its subsidiaries, which license or
franchise is conditioned upon some or all of the holders of the Corporation's
stock possessing prescribed qualifications. The terms and conditions of such
redemption shall be as follows:
(a) The redemption price of the shares to be redeemed pursuant to
this Section 5.4 shall be determined by the Board of Directors and shall be
equal to the Fair Market Value (as defined herein) of such shares or, if such
shares were purchased by one or more Disqualified Holders (as defined herein)
within one year of the Redemption Date (as defined herein), the lesser of (i)
the Fair Market Value of such shares and (ii) the purchase price paid by such
Disqualified Holder for such shares.
(b) At the election of the Corporation, the redemption price of such
shares may be paid in cash, Redemption Securities (as defined herein) or any
combination thereof.
(c) If fewer than all shares held by Disqualified Holders are to be
redeemed, the shares to be redeemed shall be selected in such manner as shall be
determined by the Board of Directors, which may include selection first of the
most recently purchased shares thereof, selection by lot or selection in any
other manner determined by the Board of Directors.
(d) At least 30 days' prior written notice of the Redemption Date
shall be given to any Disqualified Holder of shares selected to be redeemed
(unless waived in writing by any such holder), provided that the Redemption Date
may be the date on which written notice shall be given to such holder if the
cash or Redemption Securities
-5-
<PAGE>
necessary to effect the redemption shall have been deposited in trust for the
benefit of such holder and subject to immediate withdrawal by it upon surrender
of the stock certificates formerly representing the shares redeemed.
(e) From and after the Redemption Date, any and all rights of
whatever nature that any Disqualified Holder may have with respect to any shares
selected for redemption (including, without limitation, any rights to vote or
participate in dividends declared on stock of the same class or series as such
shares) shall cease and terminate, and such Disqualified Holder shall
thenceforth be entitled only to receive, with respect to such shares, the cash
or Redemption Securities payable upon redemption.
(f) The Board of Directors may also impose additional terms and
conditions.
(g) For purposes of this Section 5.4:
(i) "Disqualified Holder" shall mean any holder of shares of stock
of the Corporation whose holding of such stock, either
individually or when taken together with the holding of shares
of stock of the Corporation by any other holders, may result,
in the judgment of the Board of Directors, in the loss of, or
the failure to secure the reinstatement of, any license or
franchise from any governmental agency held by the Corporation
or any of its subsidiaries to conduct any portion of the
business of the Corporation or any of its subsidiaries.
(ii) "Fair Market Value" of a share of the Corporation's stock of
any class or series shall mean the average Closing Price (as
defined herein) for such a share for each of the 45 most
recent days on which shares of stock of such class or series
shall have been traded preceding the day on which notice of
redemption shall be given pursuant to paragraph (d) of this
Section 5.4; provided, however, that if shares of stock of
such class or series are not traded on any securities exchange
or in the over-the-counter market, "Fair Market Value" shall
be determined by the Board of Directors in good faith.
"Closing Price" on any day means the reported closing sales
price or, in case no such sale takes place, the average of the
reported closing bid and asked prices on the principal United
States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest
closing sales price or bid quotation for such stock on the
Nasdaq National Market of The Nasdaq Stock Market, Inc. or any
system then in use, or if no such prices or quotations are
available, the fair market value on the day in question as
determined by the Board of Directors in good faith.
-6-
<PAGE>
(iii) "Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the
Corporation pursuant to this Section 5.4.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any of its subsidiaries or any
other corporations, or any combination thereof, having such
terms and conditions as shall be approved by the Board of
Directors and which, together with any cash to be paid as
part of the redemption price, in the opinion of any
investment banking firm selected by the Board of Directors
(which may be a firm which provides other investment banking,
brokerage or other services to the Corporation), has a value,
at the time notice of redemption is given pursuant to
paragraph (d) of this Section 5.4, at least equal to the
price required to be paid pursuant to paragraph (a) of this
Section 5.4 (assuming for purposes of such valuation, in the
case of Redemption Securities to be publicly traded, such
Redemption Securities were fully distributed and trading
under normal conditions).
6. BOARD OF DIRECTORS.
6.1. Classification.
Except as otherwise provided in this Certificate of Incorporation or a
certificate of designations relating to the rights of the holders of any series
of Preferred Stock, voting separately by series, to elect additional directors
under specified circumstances, the number of directors of the Corporation shall
be as fixed from time to time by the Board of Directors of the Corporation. The
directors, other than those who may be elected by the holders of any series of
Preferred Stock voting separately by series, shall be classified, with respect
to the time for which they severally hold office, into three classes, Class I,
Class II and Class III, which shall be as nearly equal in number as possible,
and shall be adjusted from time to time by the Board of Directors to maintain
such proportionality. Each initial director in Class I shall hold office for a
term expiring at the 2000 annual meeting of stockholders, each initial director
in Class II shall hold office for a term expiring at the 1999 annual meeting of
stockholders, and each initial director in Class III shall hold office for a
term expiring at the 1998 annual meeting of stockholders. Elections of
directors need not be by written ballot.
Notwithstanding the foregoing provisions of this Section 6.1, each
director shall serve until such director's successor is duly elected and
qualified or until such director's earlier death, resignation or removal. At
each annual meeting of stockholders, the successors to the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election and until their successors have been duly elected and
qualified or until any such director's earlier death,
-7-
<PAGE>
resignation or removal. Except as set forth below with respect to vacancies and
newly created directorships, directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors.
6.2. Removal.
Except as otherwise provided pursuant to the provisions of this
Certificate of Incorporation or a certificate of designations relating to the
rights of the holders of any series of Preferred Stock, voting separately by
series, to elect directors under specified circumstances, any director or
directors may be removed from office at any time, but only for cause and only by
the affirmative vote of not less than 66-2/3% of the total number of votes of
the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, and
only if notice of such proposal was contained in the notice of such meeting. At
least 30 days prior to any meeting of stockholders where the removal of
directors prior to expiration of their term in office will be considered,
written notice shall be sent to the director or directors whose removal will be
considered at such meeting. Any vacancy in the Board of Directors resulting
from any such removal or otherwise shall be filled in accordance with Section
6.3 hereof.
6.3. Vacancies and Change of Authorized Number.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors elected by all of the stockholders having
the right to vote as a single class may only be filled by a majority of the
directors then in office, although fewer than a quorum, or by a sole remaining
director. In the event that one or more directors resign from the board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective. Notwithstanding the foregoing, whenever
the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of this Certificate of
Incorporation, vacancies and newly created directorships of such class or
classes or series may only be filled by a majority of the directors elected by
such class or classes or series thereof in office, or by a sole remaining
director so elected. Each director chosen in accordance with this Section 6.3
shall hold office until the next election of the class for which such director
shall have been chosen, and until such director's successor is elected and
qualified, or until the director's earlier death, resignation or removal.
6.4. Directors Elected by Holders of Preferred Stock.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies, removal and other features
-8-
<PAGE>
of such directorships shall be governed by the terms of the certificate of
designations applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Section 6 unless expressly provided by the
certificate of designations.
6.5. Limitation of Liability.
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty as a
director; provided, however, that this provision shall not eliminate or limit
the liability of a director: (a) for any breach of the director's duty of
loyalty to the Corporation or its stockholders; (b) for acts or omissions that
are not in good faith or that involve intentional misconduct or a knowing
violation of law; (c) for liability under Section 174 of the Delaware General
Corporation Law; or (d) for any transaction from which the director received any
improper personal benefit. Any repeal or modification of this Section 6.5 shall
be prospective only, and shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification
with respect to acts or omissions occurring prior to such repeal or
modification.
7. ACTIONS BY STOCKHOLDERS.
7.1. Action at Meetings or By Unanimous Consent.
Except as otherwise provided in this Certificate of Incorporation or a
certificate of designations relating to the rights of the holders of any series
of Preferred Stock, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders, and may not be effected by any consent in
writing by such stockholders, unless such consent is unanimous.
7.2. Special Meetings of Stockholders.
Special meetings of the stockholders may be called at any time but
only by (a) the chairman of the board of the Corporation or (b) a majority of
the directors in office, although less than a quorum.
8. AMENDMENT OF CERTIFICATE OF INCORPORATION.
Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, this Certificate of
Incorporation or the Bylaws of the Corporation), the affirmative vote of 66-2/3%
of the total number of votes of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal, or to adopt
any provision inconsistent with the purpose or intent of, Section 6
-9-
<PAGE>
or Section 7 hereof, and this Section 8. Notice of any such proposed amendment,
repeal or adoption shall be contained in the notice of the meeting at which it
is to be considered. Subject to the provisions set forth herein, the Corporation
reserves the right to amend, alter, repeal or rescind any provision contained in
this Certificate of Incorporation in the manner now or hereafter prescribed by
law.
9. AMENDMENT OF BYLAWS.
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly authorized
and empowered to adopt, amend and repeal the Bylaws of the Corporation.
Notwithstanding any other provisions of this Certificate of Incorporation or the
Bylaws of the Corporation (and notwithstanding the fact that a lesser percentage
may be specified by law, this Certificate of Incorporation or the Bylaws of the
Corporation), in order for the stockholders of the Corporation to amend or
repeal the Bylaws of the Corporation, the affirmative vote of 66-2/3% of the
total number of votes of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required.
-10-
<PAGE>
Attachment 1
CERTIFICATE OF DESIGNATIONS OF THE POWERS, PREFERENCES
AND RELATIVE, PARTICIPATING OR OTHER RIGHTS, AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF, OF
SERIES A CONVERTIBLE PREFERRED STOCK
($0.01 Par Value)
OF
ITC/\DELTACOM, INC.
-----------------
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
-----------------
ITC/\DELTACOM, INC., a Delaware corporation (the "Corporation"), does
hereby certify that the following resolutions were duly adopted by the Board of
Directors of the Corporation pursuant to authority conferred upon the Board of
Directors by Article 5.3 of the Certificate of Incorporation of the Corporation,
which authorizes the issuance of up to 5,000,000 shares of preferred stock, at a
meeting of the Board of Directors:
RESOLVED, that the issue of a series of preferred stock, $0.01 par
value, of the Corporation is hereby authorized and the designation, powers,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, in addition to those set
forth in the Certificate of Incorporation of the Corporation, are hereby fixed
as follows:
1. NUMBER OF SHARES AND DESIGNATION
1,750,000 shares of the preferred stock, $0.01 par value, of the
Corporation are hereby constituted as a series of the preferred stock
designated as Series A Convertible Preferred Stock (the "Series A Preferred
Stock"). Without the consent of the then current holders of shares of
Series A Preferred Stock as provided for herein, the number of authorized
shares of Series A Preferred Stock may not be increased or decreased below
the number of then currently outstanding shares of Series A Preferred
Stock.
2. DEFINITIONS
For purposes of the Series A Preferred Stock, the following terms
shall have the meanings indicated:
"Acceptance Notice" shall have the meaning set forth in Section
9.3.
<PAGE>
"Board of Directors" shall mean the board of directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series A
Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or
a day on which banking institutions in the State of Georgia are
authorized or obligated by law or executive order to close.
"Common Stock" shall mean the Common Stock of the Corporation,
par value $0.01 per share.
"Conversion Date" shall mean March 14, 2002.
"Conversion Price" shall mean the conversion price per share of
Common Stock into which the Series A Preferred Stock is convertible,
as such Conversion Price may be adjusted pursuant to Section 6. The
"Initial Conversion Price" shall be obtained by multiplying $13.2378
by the Relative Fair Market Valuation of the Corporation (equivalent
to the rate of one share of Common Stock for each share of Series A
Preferred Stock).
"Current Market Price" shall mean, as of a particular date, the
average of the high bid and low asked prices per share of Common Stock
in the over-the-counter market, as reported by The Nasdaq Stock Market
or such other system then in use, or such other exchange or inter-
dealer quotation system on which the Common Stock is principally
traded or authorized to be quoted; or, if the Common Stock is not so
traded or authorized to be quoted on any such exchange or inter-dealer
quotation system, then the price per share of Common Stock most
recently designated by the Board of Directors as the "fair market
value" thereof for purposes of granting incentive stock options.
"Issue Date" shall mean the first date on which shares of Series
A Preferred Stock are issued.
"Notice" shall have the meaning set forth in Section 9.2.
"Person" shall mean any individual, firm, partnership,
corporation or other entity, and shall include any successor (by
merger or otherwise) of such entity.
"Relative Fair Market Valuation of the Corporation" shall mean
the fair market value of the Corporation expressed as a percentage of
the ITC Holding Fair Market Value, determined as of the date the
initial public offering price per share of the common stock of the
Corporation (the "IPO Price") is established. The "ITC Holding Fair
Market Value" shall be determined by the Board of
2
<PAGE>
Directors (or a committee thereof) of ITC West Point, Inc., by
reference to the business and operations of ITC Holding Company, Inc.
immediately prior to the transfer of assets and liabilities to ITC
West Point, Inc. to be undertaken in connection with a corporate
reorganization by ITC Holding Company, Inc. The fair market value of
the Corporation will be determined by the Board of Directors of the
Corporation (or a committee thereof), by reference to the IPO Price.
"Securities" shall have the meaning set forth in Section 6.4.2.
"Series A Preferred Liquidation Distribution" shall have the
meaning set forth in Section 4.
"Series A Preferred Stock" shall mean the series of preferred
stock, $0.01 par value, of the Corporation designated as Series A
Convertible Preferred Stock.
"Shares" shall have the meaning set forth in Section 9.1.
"Stockholder" shall have the meaning set forth in Section 9.1.
"Subsidiaries" shall mean any and all corporations, partnerships,
limited liability companies, joint ventures, associations and other
entities controlled by the Corporation directly or indirectly through
one or more intermediaries.
"The Nasdaq Stock Market" shall mean the National Market System
of The Nasdaq Stock Market, Inc.
"Trading Day" means a day on which any exchange or inter-dealer
quotation system on which the Common Stock is principally traded or
authorized to be quoted is open for the transaction of business.
"Transaction" shall have the meaning set forth in Section 6.5.
"Transfer" shall have the meaning set forth in Section 9.1.
"Transfer Agent" means such agent or agents, if any, of the
Corporation as may be designated by the Board of Directors of the
Corporation as the transfer agent for the Series A Preferred Stock.
"Transferring Stockholder" shall have the meaning set forth in
Section 9.2.
3
<PAGE>
3. DIVIDENDS
3.1. Right to Receive Dividends
The holders of shares of the Series A Preferred Stock shall be
entitled to receive, when and if declared by the Board of Directors out of
funds legally available therefor, dividends in an amount per share of
Series A Preferred Stock equal to the dividends payable on the number of
shares of Common Stock into which one share of Series A Preferred Stock is
then convertible (assuming that the Conversion Date has already occurred),
determined as of the date fixed for determining holders of shares of
Common Stock entitled to receive such dividends. Each such dividend shall
be payable in arrears to the holders of record of shares of the Series A
Preferred Stock, as they appear on the stock records of the Corporation at
the close of business on such record dates, not more than 60 days
preceding the payment dates thereof, as shall be fixed by the Board of
Directors.
3.2. Dividends on Other Stock
So long as any shares of the Series A Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for
payment on any class or series of stock of the Corporation ranking, as to
dividends, on a parity with the Series A Preferred Stock, for any period,
nor shall any shares ranking on a parity with the Series A Preferred Stock
be redeemed or purchased by the Corporation or any Subsidiary, unless
dividends have been or contemporaneously are declared and paid (or are
declared and a sum sufficient for the payment thereof set apart for such
payment) on the Series A Preferred Stock in an amount per share of Series
A Preferred Stock equal to dividends declared and paid or payable on the
number of shares of Common Stock into which one share of Series A
Preferred Stock is then convertible (assuming that the Conversion Date has
already occurred), in accordance with Section 3.1.
4. LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, 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 Common Stock or any other
series or class or classes of stock of the Corporation ranking junior to
the Series A Preferred Stock, upon liquidation, dissolution or winding up,
the holders of the shares of Series A Preferred Stock shall be entitled to
receive the Initial Conversion Price per share plus an amount equal to all
dividends declared and unpaid thereon to the date of final distribution to
such holders (the "Series A Preferred Liquidation Distribution"). After
the Series A Preferred Liquidation Distribution has been made and after
the holders of shares of any other class or series of stock having
preference over the Common Stock in the event of liquidation, dissolution
or winding up have received the full preferential amounts to which they
are entitled, the holders of shares of Common Stock and any other class or
series of stock entitled to participate with the Common Stock in the event
of liquidation, dissolution or winding up shall be entitled to receive out
of the assets of the Corporation legally available for distribution to
4
<PAGE>
stockholders (whether capital or surplus) cash in amount per share equal
to the amount of the Series A Preferred Liquidation Distribution.
Thereafter, the holders of the Series A Preferred Stock shall be entitled
to share ratably with the holders of the shares of Common Stock and any
other class or series of stock entitled to participate with the Common
Stock in the event of liquidation, dissolution or winding up, in any and
all assets remaining to be paid or distributed, such that distributions
shall be made in respect of each share of Series A Preferred Stock in an
amount equal to the distributions made in respect of the number of shares
of Common Stock into which such share of Series A Preferred Stock is then
convertible. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series A Preferred Stock
and any other shares of stock ranking, as to liquidation, dissolution or
winding up, on a parity with the Series A Preferred Stock, shall be
insufficient to pay in full the preferential amount aforesaid and
liquidating payments in respect thereof, then such assets, or the proceeds
thereof, shall be distributed among the holders of shares of Series A
Preferred Stock and any such other stock ratably in accordance with the
respective amounts which would be payable on such shares of Series A
Preferred Stock and any such other stock if all amounts payable thereon
were paid in full. For the purposes of this Section 4, (i) a consolidation
or merger of the Corporation with one or more corporations, (ii) a sale or
transfer of all or substantially all of the Corporation's assets, (iii) a
statutory share exchange or (iv) a spin-off of assets of the Corporation
to its stockholders shall not be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary.
5. SHARES TO BE RETIRED
All shares of Series A Preferred Stock purchased by the Corporation
or converted shall be retired and canceled and shall be restored to the
status of authorized but unissued shares of preferred stock, without
designation as to series.
6. CONVERSION
Holders of shares of Series A Preferred Stock shall have the right
to convert all or a portion of such shares into shares of Common Stock, as
follows:
6.1. Right of Conversion
Subject to and upon compliance with the provisions of this Section
6, a holder of shares of Series A Preferred Stock shall have the right, at
his, her or its option, at any time after March 14, 2002, to convert any
or all of such shares into the number of fully paid and nonassessable
shares of Common Stock (calculated as to each conversion to the nearest
1/100th of a share) obtained by dividing the aggregate liquidation
preference of such shares by the Conversion Price and by surrender of such
shares so to be converted by the holder thereof, such surrender to be made
in the manner provided in Section 6.2. No shares of Series A Preferred
Stock may be converted into fractional shares of Common Stock. Any
fractional interest in respect of a share of Common Stock arising upon
such conversion shall be settled as provided in Section 6.3.
5
<PAGE>
6.2. Exercise of Conversion Right
In order to exercise the conversion right, the holder of each share
of Series A Preferred Stock to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent or, if no
Transfer Agent has been appointed by the Corporation, at the principal
office of the Corporation, accompanied by written notice to the
Corporation that the holder thereof elects to convert its shares of Series
A Preferred Stock or a specified portion thereof. Unless the shares
issuable on conversion are to be issued in the same name as the name in
which such share of Series A Preferred Stock is 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 such holder's duly authorized attorney and an amount sufficient
to pay any transfer or similar tax (or evidence reasonably satisfactory to
the Corporation demonstrating that such taxes have been paid).
Holders of shares of Series A Preferred Stock at the close of
business on a dividend payment record date shall be entitled to receive
the dividend payable on such shares on the corresponding dividend payment
date notwithstanding the conversion thereof following such dividend
payment record date and prior to such dividend payment date.
As promptly as practicable after the surrender of certificates for
shares of Series A Preferred Stock as aforesaid, the Corporation shall
issue and shall deliver at such office to such holder, or on his, her or
its written order, (i) a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such shares in
accordance with the provisions of this Section 6, (ii) if less than the
full number of shares of Series A Preferred Stock evidenced by the
surrendered certificates is being converted, a new certificate or
certificates, of like tenor, for the number of shares evidenced by such
surrendered certificates less the number of shares being converted, and
(iii) any fractional interest in respect of a share of Common Stock
arising upon such conversion shall be settled as provided in Section 6.3.
Each conversion 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 A Preferred Stock shall have been surrendered and such
notice received by the Corporation as aforesaid, and the person or persons
in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to
have become the holder or holders of record of the shares represented
thereby at such time on such date and such conversion shall be at the
Conversion Price in effect at such time on such date, unless the stock
transfer books of the Corporation shall be closed on that date, in which
event such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such stock transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date upon which such shares shall
have been surrendered and such notice
6
<PAGE>
received by the Corporation. All shares of Common Stock delivered upon
conversion of the Series A Preferred Stock shall upon delivery be duly and
validly issued and fully paid and nonassessable.
6.3. No Fractional Shares Upon Conversion
No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon conversion of the Series A Preferred
Stock. Instead of any fractional interest in a share of Common Stock which
would otherwise be deliverable upon the conversion of a share of Series A
Preferred Stock, the Corporation shall pay to the holder of such share an
amount in cash (computed to the nearest cent) equal to such fraction of a
share multiplied by the Current Market Price of one share of Common Stock
as of the date of conversion. If more than one share shall be surrendered
for conversion at one time by the same holder, the number of full shares
of Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate number of shares of Series A Preferred Stock so
surrendered.
6.4. Adjustment of Conversion Price
The Conversion Price shall be adjusted from time to time as follows:
6.4.1. Stock Dividends, Reorganizations, Reclassifications
In case the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Stock in shares of its
Common Stock, (B) subdivide its outstanding Common Stock into a greater
number of shares, (C) combine its outstanding Common Stock into a smaller
number of shares or (D) issue any shares of capital stock by
reclassification of its Common Stock, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the holder of any
share of Series A Preferred Stock thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock of the
Corporation which such holder would have owned or have been entitled to
receive after the happening of any of the events described above had such
share of Series A Preferred Stock been converted immediately prior to the
happening of such event or the record date therefor, whichever is earlier.
An adjustment made pursuant to this Section 6.4.1 shall become effective
immediately after the close of business on the record date in the case of
a dividend or distribution (except as provided in Section 6.8 below) and
shall become effective immediately after the close of business on the
record date in the case of a subdivision, combination or reclassification.
6.4.2. Certain Other Distributions to Holders of Common Stock
In case the Corporation shall distribute to all holders of its
Common Stock any shares of capital stock of the Corporation (other than
Common Stock) or evidences of its indebtedness or assets (other than a
regular cash dividend that the Board of Directors determines, in good
faith, can be maintained by the Corporation for at least four consecutive
periods covering not less than one year and that the Board of Directors
intends to maintain for at least four consecutive periods covering not
less than one year, out of profits or surplus) or rights or warrants to
subscribe for or purchase any of its
7
<PAGE>
securities (any of the foregoing being hereinafter in this Section 6.4.2
called the "Securities"), then in each such case, unless the Corporation
elects to reserve shares or other units of such Securities for
distribution to the holders of the Series A Preferred Stock upon the
conversion of the shares of Series A Preferred Stock so that any such
holder converting shares of Series A Preferred Stock will receive upon
such conversion, in addition to the shares of the Common Stock to which
such holder is entitled, the amount and kind of such Securities which such
holder would have received if such holder had, immediately prior to the
record date for the distribution of the Securities, converted his or her
shares of Series A Preferred Stock into Common Stock (such election to be
based upon a determination by the Board of Directors that such reservation
will not materially adversely affect the interests of any holder of Series
A Preferred Stock in any such reserved Securities), the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying (I) the Conversion Price in effect immediately prior to the
date of such distribution by (II) a fraction, the numerator of which shall
be the Current Market Price per share of the Common Stock on the record
date mentioned below less the fair market value (as determined by the
Board of Directors, whose determination shall, if made in good faith, be
conclusive) of the portion of the capital stock or assets or evidences of
indebtedness so distributed or of such rights or warrants applicable to
one share of Common Stock, and the denominator of which shall be the
Current Market Price per share of the Common Stock. Such adjustment shall
become effective immediately, except as provided in Section 6.8 below,
after the record date for the determination of stockholders entitled to
receive such distribution.
6.4.3. No De Minimis Adjustments
No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this
Section 6.4.3 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and provided further that
any adjustment shall be required and made in accordance with the
provisions of this Section 6 (other than this Section 6.4.3) not later
than such time as may be required in order to preserve the tax-free nature
of a distribution to the holders of shares of Common Stock. All
calculations under this Section 6 shall be made to the nearest cent (with
$.005 being rounded upward) or to the nearest 1/100 of a share (with .005
of a share being rounded upward), as the case may be. Anything in this
Section 6.4.3 to the contrary notwithstanding, the Corporation shall be
entitled, to the extent permitted by law, to make such reductions in the
Conversion Price, in addition to those required by Section 6.4.3, as it in
its discretion shall determine to be advisable in order that any stock
dividends, subdivision of shares, distribution of rights or warrants to
purchase stock or securities, or a distribution of other assets (other
than cash dividends) hereafter made by the Corporation to its stockholders
shall not be taxable.
8
<PAGE>
6.4.4. No Adjustment Where Similar Dividend, Distribution, or
Issuance With Respect to Preferred Stock
No adjustment in the Conversion Price shall be required in the event
of any dividend, distribution or issuance to holders of shares of Common
Stock pursuant to Sections 6.4.1 or 6.4.2 above if holders of shares of
Series A Preferred Stock have received the same dividend, distribution or
issuance in accordance with Section 3.
6.5. Certain Transactions
In case the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, sale of all or
substantially all of the Corporation's assets or recapitalization of the
Common Stock and excluding any transaction as to which Section 6.4.1
applies) (each of the foregoing being referred to as a "Transaction"), in
each case as a result of which shares of Common Stock shall be converted
into the right to receive stock, securities or other property (including
cash or any combination thereof), each share of Series A Preferred Stock
which is not converted into the right to receive stock, securities or other
property in connection with such Transaction shall thereafter be
convertible into the kind and amount of shares of stock and other
securities and property receivable (including cash) upon the consummation
of such Transaction by a holder of that number of shares or fraction
thereof of Common Stock into which one share of Series A Preferred Stock
was convertible immediately prior to such Transaction. The Corporation
shall not be a party to any Transaction unless the terms of such
Transaction are consistent with the provisions of this Section 6.5, and it
shall not consent or agree to the occurrence of any Transaction until the
Corporation has entered into an agreement with the successor or purchasing
entity, as the case may be, for the benefit of the holders of the Series A
Preferred Stock which will contain provisions enabling the holders of the
Series A Preferred Stock which remains outstanding after such Transaction
to convert into the consideration received by holders of Common Stock at
the Conversion Price immediately after such Transaction. The provisions of
this Section 6.5 shall similarly apply to successive Transactions.
6.6. Notice of Certain Events
If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than a regular cash dividend that
the Board of Directors determines can be maintained by the Corporation for
at least four consecutive periods covering at least one year and that the
Board of Directors intends to maintain for at least four consecutive
periods covering at least one year out of profits or surplus); or
(ii) the Corporation shall authorize the granting to the
holders of the Common Stock of rights or warrants to subscribe for or
purchase any shares of any class or any other rights or warrants; or
9
<PAGE>
(iii) there shall be any reclassification of the Common
Stock (other than an event to which Section 6.4.1 applies) or any
consolidation or merger to which the Corporation is a party and for which
approval of any stockholders of the Corporation is required, or the sale or
transfer of all or substantially all of the assets of the Corporation;
then in each such case the Corporation shall cause to be filed with
the Transfer Agent, if any, and shall cause to be mailed to the holders of
shares of the Series A Preferred Stock at their addresses as shown on the
stock records of the Corporation, as promptly as possible, but at least 15
days prior to the applicable date specified in clauses (A) and (B) below, a
notice stating (A) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution or rights or
warrants are to be determined or (B) the date on which such
reclassification, consolidation, merger, sale or transfer is expected, that
holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale or transfer. Failure to
give such notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section 6.
6.7. Notice of Adjustment in Conversion Price
Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall prepare a notice of such adjustment of the Conversion
Price setting forth the adjusted Conversion Price and the date on which
such adjustment becomes effective and shall promptly mail such notice of
such adjustment of the Conversion Price to the holder of each share of
Series A Preferred Stock at his, her or its last address as shown on the
stock records of the Corporation.
6.8. Adjustment in Conversion Price and Record Dates
In any case in which Section 6.4 provides that an adjustment shall
become effective immediately after a record date for an event, the
Corporation may defer until the occurrence of such event (A) issuing to the
holder of any share of Series A Preferred Stock converted after such record
date and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (B) paying to such
holder any amount in cash in lieu of any fraction pursuant to Section 6.3.
6.9. Determination of Number of Outstanding Shares of Common Stock
For purposes of this Section 6, the number of shares of Common Stock
at any time outstanding shall not include any shares of Common Stock then
owned or held by or for the account of the Corporation.
10
<PAGE>
6.10. Adjustments Required by Multiple Sections
If any action or transaction would require adjustment of the
Conversion Price pursuant to more than one paragraph of this Section 6,
only one adjustment shall be made and such adjustment shall be the amount
of adjustment which has the highest absolute value.
6.11. Other Actions Affecting Conversion Rights
In case the Corporation shall take any action affecting the Common
Stock, other than action described in this Section 6, that in the opinion
of the Board of Directors would materially adversely affect the conversion
rights of the holders of the shares of Series A Preferred Stock, the
Conversion Price for the Series A Preferred Stock may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors may determine to be equitable in the circumstances.
6.12. Reservation of Common Stock for Issuance Upon Conversion
The Corporation covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of
Common Stock held in its treasury, or both, for the purpose of effecting
conversion of the Series A Preferred Stock, the full number of shares of
Common Stock deliverable upon the conversion of all outstanding shares of
Series A Preferred Stock not theretofore converted. For purposes of this
Section 6.12, the number of shares of Common Stock which shall be
deliverable upon the conversion of all outstanding shares of Series A
Preferred Stock shall be computed as if at the time of computation all such
outstanding shares were held by a single holder.
6.13. Fully Paid and Nonassessable Shares Upon Conversion
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value of the shares of Common Stock
deliverable upon conversion of the Series A Preferred Stock, the
Corporation shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Corporation may validly and
legally issue fully paid and nonassessable shares of Common Stock at such
adjusted Conversion Price.
6.14. Listing of Shares Issuable Upon Conversion
The Corporation shall use all reasonable efforts to list the shares
of Common Stock required to be delivered upon conversion of the Series A
Preferred Stock, prior to such delivery, on any exchange or inter-dealer
quotation system on which the Common Stock is principally traded or
authorized to be quoted at such time.
6.15. Compliance with Laws and Regulatory Requirements
Prior to the delivery of any securities that the Corporation shall
be obligated to deliver upon conversion of the Series A Preferred Stock,
the Corporation shall use all reasonable efforts to comply with all federal
and state laws and regulations thereunder requiring the registration of
such securities with, or any approval of or consent to the
11
<PAGE>
delivery thereof by, any governmental authority, and any such conversion or
delivery shall be subject to any applicable requirements of law or
regulation.
6.16. Payment of Issue or Transfer Taxes
The Corporation shall pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversion of the Series A Preferred Stock
pursuant hereto; provided, however, that the Corporation shall not be
required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock in a name other
than that of the holder of the Series A 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 reasonable satisfaction of the
Corporation, that such tax has been paid.
7. RANKING
Any class or classes of stock of the Corporation shall be deemed to
rank:
(a) prior to the Series A Preferred Stock, as to dividends or as to
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series A Preferred
Stock;
(b) on a parity with the Series A Preferred Stock, (A) as to
dividends, if such stock shall be Common Stock or if the holders of such
class of stock and the Series A Preferred Stock shall be entitled to the
receipt of dividends in proportion to their respective amounts of declared
and unpaid dividends per share, without preference or priority one over the
other, or (B) as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the liquidation price per share thereof be
different from that of the Series A Preferred Stock, if the holders of such
class of stock and the Series A Preferred Stock shall be entitled to the
receipt of amounts distributable upon liquidation, dissolution or winding
up in proportion to their respective amounts of liquidation prices, without
preference or priority one over the other: and
(c) junior to the Series A Preferred Stock, (A) as to dividends, if
the holders of Series A Preferred Stock shall be entitled to the receipt of
dividends in preference or priority to the holders of shares of such stock,
or (B) as to distribution of assets upon liquidation, dissolution or
winding up, if such stock shall be Common Stock or if the holders of Series
A Preferred Stock shall be entitled to receipt of amounts distributable
upon liquidation, dissolution or winding up in preference or priority to
the holders of shares of such stock.
12
<PAGE>
8. VOTING
(a) Except as herein provided or as otherwise from time to time
required by law, holders of Series A Preferred Stock shall have no voting
rights.
(b) So long as any shares of the Series A Preferred Stock remain
outstanding, the consent of the holders of at least two-thirds of the
shares of Series A Preferred Stock outstanding at the time given in person
or by proxy, either in writing or at any special or annual meeting, shall
be necessary to permit, effect or validate any one or more of the
following:
(i) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or series
of stock ranking prior to Series A Preferred Stock as to dividends
or the distribution of assets upon liquidation, dissolution or
winding up;
(ii) The increase in the authorized or issued amount of
Series A Preferred Stock: or
(iii) The amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Certificate of Incorporation of the Corporation (including any of
the provisions hereof) that would affect any right, preference or
voting power of Series A Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized
preferred stock or the creation and issuance of other series of
preferred stock, or any increase in the amount of authorized shares
of such series or of any other series of preferred stock, in each
case ranking on a parity with or junior to the Series A Preferred
Stock with respect to the payment of dividends and the distribution
of assets upon liquidation, dissolution or winding up, shall not be
deemed to affect such rights, preferences or voting powers.
9. RESTRICTIONS ON TRANSFER; RIGHTS OF FIRST REFUSAL
9.1. Restrictions on Transfers
Except as hereinafter provided, no holder of Series A Preferred
Stock (a "Stockholder") shall sell, assign, transfer, give (whether by
inter vivos transfer or, upon the death of any Stockholder, by testamentary
disposition or pursuant to the laws of intestate succession), pledge,
encumber or otherwise dispose of ("Transfer") all or any part of such
Stockholder's shares of Series A Preferred Stock of the Corporation (the
"Shares") to any person, trust, association, partnership, firm, corporation
or other legal entity without the prior written consent of the Corporation.
13
<PAGE>
9.2. Notice of Proposed Transfer
Except for Transfers pursuant to Section 9.1 or 9.6, any Stockholder
desiring to Transfer any of the Shares (the "Transferring Stockholder")
prior to making a Transfer must give written notice to the Corporation of
the portion of the Transferring Stockholder's Shares which the Transferring
Stockholder desires to Transfer and all the proposed material terms and
conditions of such Transfer (such notice is hereinafter referred to as the
"Notice"). Such Notice shall constitute an offer by the Transferring
Stockholder to sell to the Corporation, all, but not less than all, of the
Shares which the Transferring Stockholder proposes to dispose of, upon the
terms set forth in the Notice.
9.3. Acceptance of Offer by the Corporation or the Stockholders
The Corporation may accept the offer of the Transferring Stockholder
as set forth in the Notice, in whole or in part, by giving written notice
of such acceptance (the "Acceptance Notice") at any time within 45 days
following the date the Notice was delivered to the Corporation by the
Transferring Stockholder.
9.4. Closing
If the Offer of the Transferring Stockholder is accepted by the
Corporation pursuant to Section 9.3 hereof, the closing of the purchase by
the Corporation of the Shares being sold by the Transferring Stockholder
shall be held at the main office of the Corporation within 30 days after
the acceptance of the offer by the Corporation, on the date and at the time
specified by the Corporation. At each such closing, (a) the Transferring
Stockholder shall deliver (i) certificates representing the shares of stock
to be transferred, endorsed in blank or accompanied by duly executed blank
stock powers and (ii) appropriate representations that the Transferring
Stockholder has good, valid and unencumbered title to the Shares being
transferred and has transferred free and clear title thereto to the
Corporation, and (b) the Corporation shall deliver the full amount of the
purchase price set forth in the Notice by check or wire transfer of
immediately available federal funds to an account designated by the
Transferring Stockholder.
9.5. Sale of Series A Preferred Stock if Offered is Rejected
If the Corporation does not accept the offer of the Transferring
Stockholder in the manner herein provided, then the Transferring
Stockholder shall be permitted to Transfer all of the Shares proposed to be
Transferred; provided; however, that (i) such Transfer must be made to the
transferee in strict accordance with the terms as described in the Notice;
and (ii) such transfer must be consummated within 90 days following the
delivery of the Notice to the Corporation on a date and at a time and place
of which the Transferring Stockholder shall give the Corporation at least
ten days' notice. The Corporation may designate an individual whom the
Transferring Stockholder shall permit to attend the closing of such
Transfer and to examine the documents implementing such Transfer. In the
event the Transferring Stockholder fails to consummate such proposed
Transfer prior to the expiration of such 90-day period, then prior to any
subsequent Transfer of all or any portion of the Transferring Stockholder's
Shares, the Transferring Stockholder shall be required to give the notice
contemplated by Section 9.2, and the
14
<PAGE>
restrictions on Transfer and rights of first refusal contained herein shall
again be applicable with respect thereto.
9.6. Permitted Transfers
Notwithstanding the foregoing provisions of this Article 9, a
Stockholder may at any time Transfer the Shares owned by it, to (i) any
spouse or lineal descendant of such Stockholder, (ii) a parent,
grandparent, brother or sister of such Stockholder, (iii) any trust
established for the benefit of such Stockholder or any spouse or lineal
descendent thereof, or (iv) any corporation in which such Stockholder owns
all of the issued and outstanding capital stock. Any transfer specified in
this Section 9.6 shall not be subject to any of the restrictions on
transfer or rights of first refusal set forth in this Article 9.
9.7. Applicability of Restrictions on Transfer
(a) The restrictions on Transfer and the right of first refusal with
respect to the Shares shall terminate upon the date the Corporation becomes
subject to the reporting requirements of Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended.
(b) The rights of first refusal set forth in this Article 9 shall
not apply to any proposed exchange to be effected pursuant to a merger or
consolidation approved by the Stockholders or any proposed pledge by any
Stockholder of any of the Shares to any financial institution as security
for indebtedness of such Stockholder to such financial institution.
However, any financial institution which accepts the pledge of Shares shall
be subject to these restrictions on Transfer and the right of first refusal
in the event of foreclosure on such Shares.
10. RECORD HOLDERS
The Corporation and any Transfer Agent may deem and treat the record
holder of any shares of Series A Preferred Stock as the true and lawful
owner thereof for all purposes, and neither the Corporation nor any
Transfer Agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to
be made under the seal of the Corporation and signed by J. Thomas Mullis, its
Senior Vice President, General Counsel and Secretary, this 17th day of October,
1997.
ITC/\DELTACOM, INC.
By: /s/ J. Thomas Mullis
------------------------------
J. Thomas Mullis
Senior Vice President, General
Counsel and Secretary
15
<PAGE>
CERTIFICATE OF CORRECTION
TO THE
CERTIFICATE OF OWNERSHIP AND MERGER
OF ITC HOLDING COMPANY, INC., WITH AND INTO
ITC/\DELTACOM, INC.
ITC Holding Company, Inc. (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1. The name of the Corporation is ITC Holding Company, Inc.
2. A Certificate of Ownership and Merger of ITC Holding Company, Inc.
was filed with the Secretary of State of the State of Delaware on October 20,
1997 and said Certificate of Ownership and Merger requires correction as
permitted by subsection (f) of Section 103 of the General Corporation Law of the
State of Delaware.
3. The inaccuracies or defects of said Certificate of Ownership and
Merger to be corrected are, among other things, that (i) the language "or
issuable upon exercise of converted ITC Holding Options or upon conversion of
shares of the ITC/\DeltaCom Preferred (as defined herein)" was omitted from
paragraph (ii) of the third resolution on page 3 of Appendix A of said
----------
Certificate of Ownership and Merger, (ii) the language "or issuable upon
exercise of converted ITC Holding Options or upon conversion of shares of the
ITC/\DeltaCom Preferred" was omitted from paragraph (iii ) of the third
resolution on page 3 of Appendix A of said Certificate of Ownership and Merger,
----------
and (iii) the last paragraph of Section 5.3.1 of Exhibit A to Appendix A of said
--------- ----------
Certificate of Ownership and Merger contained a typographical error.
4. Paragraphs (ii) and (iii) of the third resolution on page 3 of
Appendix A of the Certificate of Ownership and Merger are corrected to read in
- ----------
their entirety as follows:
(ii) each share of ITC Holding Common shall be converted into 2.304012
(assuming that there are 24,075,000 shares of common stock of ITC/\DeltaCom
outstanding or issuable upon exercise of converted ITC Holding Options or upon
conversion of shares of the ITC/\DeltaCom Preferred (as defined herein)
immediately after such conversion) fully paid and nonassessable shares of common
stock, par value $.01 per share, of ITC/\DeltaCom, having such rights, terms,
and preferences as set forth in the ITC/\DeltaCom Charter (the "ITC/\DELTACOM
COMMON") (the "COMMON STOCK CONVERSION RATIO"); provided, however, that no
fractional shares of ITC/\DeltaCom Common shall be issued pursuant to such
conversion, and in lieu of fractional shares of ITC/\DeltaCom Common resulting
from such conversion, there shall be paid, upon surrender of certificates
formerly
<PAGE>
representing shares of ITC Holding Common, to each holder of ITC Holding Common
who otherwise would be entitled to receive a fractional share of ITC/\DeltaCom
Common an amount of cash (without interest) determined by multiplying such
fraction by the initial public offering price per share of ITC/\DeltaCom's
common stock;
(iii) each share of ITC Holding Preferred shall be converted into
2.304012 (assuming that there are 24,075,000 shares of ITC/\DeltaCom Common
outstanding or issuable upon exercise of converted ITC Holding Options or upon
conversion of shares of ITC/\DeltaCom Preferred immediately after such
conversion) fully paid and nonassessable shares of Series A Convertible
Preferred Stock, par value $.01 per share, of ITC/\DeltaCom, having such rights,
terms, and preferences, as are set forth in the Certificate of Designations
attached as Attachment 1 to the ITC/\DeltaCom Charter (the "ITC/\DELTACOM
------------
PREFERRED"); provided, however, that no fractional shares of ITC/\DeltaCom
Preferred shall be issued pursuant to such conversion, and in lieu of fractional
shares of ITC/\DeltaCom Preferred resulting from such conversion, there shall be
paid, upon surrender of certificates formerly representing shares of ITC Holding
Preferred, to each holder of ITC Holding Preferred who otherwise would be
entitled to receive a fractional share of ITC/\DeltaCom Preferred an amount of
cash (without interest) determined by multiplying such fraction by the Initial
Conversion Price for the ITC/\DeltaCom Preferred (as such term is defined in the
Certificate of Designations for the ITC/\DeltaCom Preferred);
5. The last paragraph of Section 5.3.1 of Exhibit A to Appendix A of
--------- ----------
said Certificate of Ownership and Merger is corrected to read in its entirety as
follows:
Pursuant to authority granted to the Board of Directors of the
Corporation in the Corporation's original Certificate of Incorporation, on
October 16, 1997, the Board of Directors of the Corporation duly adopted
resolutions creating the Series A Convertible Preferred Stock, par value $.01
per share, of the Corporation, the rights, powers and preferences for which are
set forth in Attachment 1 hereto and incorporated by reference herein and made
------------
an integral part hereof.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
made under the seal of the Corporation and signed by Dabsey M. Gray, its Vice
President, Controller and Assistant Secretary, this 21st day of October, 1997.
ITC HOLDING COMPANY, INC.
By: /s/ Dabsey M. Gray
------------------------------
Dabsey M. Gray
Vice President, Controller and
Assistant Secretary
<PAGE>
Exhibit 3
AMENDED AND RESTATED BYLAWS
OF
ITC/\DELTACOM, INC.
1. OFFICES
1.1. Registered Office
The initial registered office of the Corporation shall be in
Wilmington, Delaware, and the initial registered agent in charge thereof shall
be Corporation Service Company.
1.2. Other Offices
The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors may from
time to time determine or as may be necessary or useful in connection with the
business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings
All meetings of the stockholders shall be held at such place as may
be fixed from time to time by the Board of Directors, the Chairperson, the Chief
Executive Officer or the President.
2.2. Annual Meetings
The Corporation shall hold annual meetings of stockholders,
commencing with the year 1998, on such date and at such time as shall be
designated from time to time by the Board of Directors, the Chairperson, the
Chief Executive Officer or the President, at which stockholders shall elect
successors to that class of directors whose terms shall have expired and
transact such other business as may properly be brought before the meeting.
2.3. Special Meetings
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called at any time by (a) the
Chairperson or (b) a majority of the directors in office, although less than a
quorum.
<PAGE>
2.4. Notice of Meetings
Notice of any meeting of stockholders, stating the place, date and
hour of the meeting, and (if it is a special meeting) the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting (except to the extent that such notice is waived or is not
required as provided in the General Corporation Law of the State of Delaware
(the "Delaware General Corporation Law") or these Amended and Restated Bylaws
(the "Bylaws")). Such notice shall be given in accordance with, and shall be
deemed effective as set forth in, Section 222 (or any successor section) of the
Delaware General Corporation Law.
2.5. Waivers of Notice
Whenever the giving of any notice is required by statute, the
Certificate of Incorporation of the Corporation (which shall include any
amendments thereto and shall be hereinafter referred to as so amended as the
"Certificate of Incorporation") or these Bylaws, a waiver thereof, in writing
and delivered to the Corporation, signed by the person or persons entitled to
such notice, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance of a stockholder at
a meeting shall constitute a waiver of notice (1) of such meeting, except when
the stockholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting, and (2) (if it is a special meeting) of
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the stockholder
objects to considering the matter at the beginning of the meeting.
2.6. Business at Special Meetings
Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice (except to the extent that such
notice is waived or is not required as provided in the Delaware General
Corporation Law or these Bylaws).
2.7. List of Stockholders
After the record date for a meeting of stockholders has been fixed,
at least ten days before such meeting, the officer who has charge of the stock
ledger of the Corporation shall make a list of all stockholders entitled to vote
at the meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place in the city where the meeting
is to be held, which place is to be specified in the notice of the meeting, or
at the place where the meeting is to be held. Such list shall also, for the
duration of the meeting, be produced and kept open to the examination of any
stockholder who is present at the time and place of the meeting.
2.8. Quorum at Meetings
Stockholders may take action on a matter at a meeting only if a
quorum exists with respect to that matter. Except as otherwise provided by
statute or by the Certificate of
<PAGE>
Incorporation, the holders of a majority of the shares entitled to vote at the
meeting, and who are present in person or represented by proxy, shall constitute
a quorum at all meetings of the stockholders for the transaction of business.
Where a separate vote by a class or classes is required, a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum entitled to take action with respect to that
vote on that matter. Once a share is represented for any purpose at a meeting
(other than solely to object (1) to holding the meeting or transacting business
at the meeting, or (2) (if it is a special meeting) to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice), it is deemed present for quorum purposes for
the remainder of the meeting and for any adjournment of that meeting unless a
new record date is or must be set for the adjourned meeting. The holders of a
majority of the voting shares represented at a meeting, whether or not a quorum
is present, may adjourn such meeting from time to time.
2.9. Voting and Proxies
Unless otherwise provided in the Delaware General Corporation Law or
in the Certificate of Incorporation, and subject to the other provisions of
these Bylaws, each stockholder shall be entitled to one vote on each matter, in
person or by proxy, for each share of the Corporation's capital stock that has
voting power and that is held by such stockholder. No proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed appointment of proxy shall be irrevocable if the
appointment form states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power.
2.10. Required Vote
When a quorum is present at any meeting of stockholders, all matters
(other than the election of directors) shall be determined, adopted and approved
by the affirmative vote (which need not be by ballot) of a majority of the votes
of the shares present in person or represented by proxy at the meeting and
entitled to vote with respect to the matter, unless the proposed action is one
upon which, by express provision of the Delaware General Corporation Law or of
the Certificate of Incorporation, a different vote is specified and required, in
which case such express provision shall govern and control with respect to that
vote on that matter. Where a separate vote by a class or classes is required,
the affirmative vote of the holders of a majority of the shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class, unless the proposed action is one upon which, by express
provision of the Delaware General Corporation Law or of the Certificate of
Incorporation, a different vote is specified and required, in which case such
express provision shall govern and control with respect to that vote on that
matter. Notwithstanding the foregoing, directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors.
2.11. Action Without a Meeting
Except as otherwise provided by the Certificate of Incorporation,
any action required or permitted to be taken by the stockholders of the
Corporation at a duly called annual or special meeting of stockholders may be
effected without
<PAGE>
a meeting, without prior notice and without a vote, but only if the action is
effected by one or more unanimous written consents of the stockholders entitled
to take such action, and the writing or writings are delivered to the
Corporation within sixty days of the delivery to the Corporation of the earliest
dated consent. All such consents shall be included in the Minute Book of the
Corporation.
3. DIRECTORS
3.1. Powers
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the Certificate of Incorporation or as otherwise may be
provided in the Delaware General Corporation Law.
3.2. Number and Election; Classes
The number of directors which shall constitute the whole Board of
Directors shall not be fewer than five nor more than fifteen. The first Board of
Directors shall consist of 9 members. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
Board of Directors. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 3.4 hereof, and each director
elected shall hold office until such director's successor is elected and
qualified or until the director's earlier death, resignation or removal.
Directors need not be stockholders. Unless otherwise provided in the Certificate
of Incorporation, the Board of Directors shall divide the directors into three
classes; and, when the number of directors is changed, shall determine the class
or classes to which the increased or decreased number of directors shall be
apportioned; provided, however, that no decrease in the number of directors
-------- -------
shall affect the term of any director then in office. At each annual meeting of
stockholders, directors elected to succeed those whose terms are expiring shall
be elected for a term of office expiring at the annual meeting of stockholders
held in the third year following their election and until their respective
successors are elected and qualified, or until such director's earlier death,
resignation or removal.
3.3. Nomination of Directors
Only persons who are nominated in accordance with the procedures set
forth in this Section 3.3 shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of stockholders by or at the direction of the Board of
Directors or by any stockholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Section 3.3. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a stockholder notice
shall be delivered to or mailed and received at the principal executive office
of the Corporation not less than sixty days prior to the meeting; provided,
however, that in the event that less than seventy-five days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the fifteenth day
<PAGE>
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice shall set forth (a)
as to each person whom the stockholder proposes to nominate for election or re-
election as a director, (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of the Corporation's stock which
are beneficially owned by such person, and (iv) any other information relating
to such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
without limitation such person's written consent to be named in the proxy
statement as a nominee and to serving as a director if elected); and (b) as to
the stockholder giving the notice, (i) the name and address, as they appear on
the Corporation's books, of such stockholder and (ii) the class and number of
shares of the Corporation's stock which are beneficially owned by such
stockholder. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the Corporation that information required to be set forth in the
stockholder's notice of nomination which pertains to the nominee. No later than
the tenth day following the date of receipt of a stockholder nomination
submitted pursuant to this Section 3.3, the Chairman of the Board of Directors
of the Corporation shall, if the facts warrant, determine and notify in writing
the stockholder making such nomination that such nomination was not made in
accordance with the time limits and/or other procedures prescribed by the
bylaws. If no such notification is mailed to such stockholder within such ten-
day period, such nomination shall be deemed to have been made in accordance with
the provisions of this Section 3.3. No person shall be eligible for election as
a director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 3.3.
3.4. Vacancies
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors elected by all of the stockholders having
the right to vote as a single class may be filled by a majority of the directors
then in office, although fewer than a quorum, or by a sole remaining director.
Whenever the holders of any class or classes of stock or series thereof are
entitled to elect one or more directors by the provisions of the Certificate of
Incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the directors elected by such
class or classes or series thereof in office, or by a sole remaining director so
elected. Each director so chosen shall hold office until the next election of
the class for which such director shall have been chosen, and until such
director's successor is elected and qualified, or until the director's earlier
death, resignation or removal. In the event that one or more directors resigns
from the Board of Directors, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office until the next election of the class for which such director
shall have been chosen, and until such director's successor is elected and
qualified, or until the director's earlier death, resignation or removal.
<PAGE>
3.5. Meetings
3.5.1. Regular Meetings
Regular meetings of the Board of Directors may be held without notice
at such time and at such place as shall from time to time be determined by the
Board of Directors.
3.5.2. Special Meetings
Special meetings of the Board of Directors may be called by the
Chairperson, the Chief Executive Officer or the President on one day's notice.
At least one day's notice of special meetings of the Board of Directors shall be
provided to each director, either personally or by telephone, express delivery
service (so that the scheduled delivery date of the notice is at least one day
in advance of the meeting), telegram or facsimile transmission. At least five
days' notice of special meetings of the Board of Directors shall be provided by
first-class mail (effective upon deposit of such notice in the mail). The
notice need not describe the purpose of a special meeting.
3.5.3. Telephone Meetings
Members of the Board of Directors may participate in a meeting of the
Board of Directors by any communication by means of which all participating
directors can simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
3.5.4. Action Without Meeting
Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if the action is taken by all
members of the Board of Directors. The action must be evidenced by one or more
written consents describing the action taken, signed by each director, and
delivered to the Corporation for inclusion in the Minute Book of the
Corporation.
3.5.5. Waiver of Notice of Meeting
A director may waive any notice required by statute, the Certificate
of Incorporation or these Bylaws before or after the date and time stated in the
notice. Except as set forth below, the waiver must be in writing, signed by the
director entitled to the notice, and delivered to the Corporation for inclusion
in the Minute Book of the Corporation. Notwithstanding the foregoing, a
director's attendance at or participation in a meeting waives any required
notice to the director of the meeting unless the director at the beginning of
the meeting objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
3.6. Quorum and Vote at Meetings
At all meetings of the Board of Directors, a quorum of the Board
of Directors consists of a majority of the total number of directors prescribed
pursuant to Section 3.2 of these Bylaws. The vote of a majority of the directors
present at any meeting at which there is a quorum shall
<PAGE>
be the act of the Board of Directors, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation or by these Bylaws.
3.7. Committees of Directors
The Board of Directors may by resolution create one or more
committees and appoint members of the Board of Directors to serve on the
committees at the pleasure of the Board of Directors. The Board may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. If a member of a
committee shall be absent from any meeting, or disqualified from voting thereat,
the remaining member or members present and not disqualified from voting,
whether or not such member or members constitute a quorum, may, by unanimous
vote, appoint another member of the Board of Directors to act at the meeting in
the place of such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors pursuant to Section 151(a) of the
Delaware General Corporation Law, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
Corporation or fix the number of shares of stock or authorize the increase or
decrease of the shares of any series), adopting an agreement of merger or
consolidation pursuant to Section 251 or 252 of the Delaware General Corporation
Law, recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the Bylaws; and unless the Board resolution appointing the
Committee, these Bylaws or the Certificate of Incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the Delaware General Corporation
Law. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors, when required. Unless otherwise specified in the board
resolution appointing the Committee, all provisions of the Delaware General
Corporation Law and these Bylaws relating to meetings, action without meetings,
notice (and waiver thereof), and quorum and voting requirements of the Board of
Directors apply, as well, to such committees and their member s.
3.8. Compensation of Directors
The Board of Directors shall have the authority to fix the
compensation of directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
<PAGE>
4. OFFICERS
4.1. Positions
The officers of the Corporation shall be a President, a Secretary and
a Treasurer, and such other officers as the Board of Directors (or an officer
authorized by the Board of Directors) from time to time may appoint, including a
Chairperson, a Chief Executive Officer, a Chief Financial Officer and one or
more Vice Chairmen, Senior Vice Presidents, Vice Presidents, Assistant
Secretaries and Assistant Treasurers. Each such officer shall exercise such
powers and perform such duties as shall be set forth below and such other powers
and duties as from time to time may be specified by the Board of Directors or by
any officer(s) authorized by the Board of Directors to prescribe the duties of
such other officers. Any number of offices may be held by the same person,
except that in no event shall the President and the Secretary be the same
person. Each of the Chairperson, Chief Executive Officer, Chief Financial
Officer, President, and/or any Vice President may execute bonds, mortgages and
other documents under the seal of the Corporation, except where required or
permitted by law to be otherwise executed and except where the execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation.
4.2. Chairperson
The Chairperson shall (when present) preside at all meetings of the
Board of Directors and stockholders, and shall ensure that all orders and
resolutions of the Board of Directors and stockholders are carried into effect.
The Chairperson may execute bonds, mortgages and other contracts, under the seal
of the Corporation, if required, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation.
4.3. Chief Executive Officer
In the absence of the Chairperson, or if no Chairperson shall have
been appointed, the Chief Executive Officer shall (when present) preside at all
meetings of the Board of Directors and stockholders, and shall ensure that all
orders and resolutions of the Board of Directors and stockholders are carried
into effect. The Chief Executive Officer may execute bonds, mortgages and other
contracts, under the seal of the Corporation, if required, except where required
or permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
4.4. President
The President shall have overall responsibility and authority for
management of the operations of the Corporation, subject to the authority of the
Chief Executive Officer and the Board of Directors. The President may execute
bonds, mortgages and other contracts, under the seal of the Corporation, if
required, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Corporation.
<PAGE>
4.5. Chief Financial Officer
The Chief Financial Officer shall have overall responsibility and
authority for management of the financial operations of the Corporation, subject
to the authority of the Chief Executive Officer and the Board of Directors. The
Chief Financial Officer may execute bonds, mortgages and other contracts, under
the seal of the Corporation, if required, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation.
4.6. Vice President
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President.
4.7. Secretary
The Secretary shall have responsibility for preparation of minutes of
meetings of the Board of Directors and of the stockholders and for
authenticating records of the Corporation. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the Board of Directors. The Secretary or an Assistant Secretary may also attest
all instruments signed by any other officer of the Corporation.
4.8. Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of the Secretary's inability or
refusal to act, perform the duties and exercise the powers of the Secretary.
4.9. Treasurer
The Treasurer shall have responsibility for the custody of the
corporate funds and securities and shall see to it that full and accurate
accounts of receipts and disbursements are kept in books belonging to the
Corporation. The Treasurer shall render to the Chairperson, the Chief Executive
Officer, the President, the Chief Financial Officer and the Board of Directors,
upon request, an account of all financial transactions and of the financial
condition of the Corporation.
4.10. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or if
there shall have been no
<PAGE>
such determination, then in the order of their election), shall, in the absence
of the Treasurer or in the event of the Treasurer's inability or refusal to act,
perform the duties and exercise the powers of the Treasurer.
4.11. Term of Office
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board of Directors may be removed at any
time, with or without cause, by the affirmative vote of a majority of the Board
of Directors.
4.12. Compensation
The compensation of officers of the Corporation shall be fixed by the
Board of Directors or by any officer(s) authorized by the Board of Directors to
prescribe the compensation of such other officers.
4.13. Fidelity Bonds
The Corporation may secure the fidelity of any or all of its officers
or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. Certificates of Stock; Uncertificated Shares
The shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution that some or all
of any or all classes or series of the Corporation's stock shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates, and upon request
every holder of uncertificated shares, shall be entitled to have a certificate
(representing the number of shares registered in certificate form) signed in the
name of the Corporation by the Chairperson, President or any Vice President, and
by the Treasurer, Secretary or any Assistant Treasurer or Assistant Secretary of
the Corporation. Any or all the signatures on the certificate may be facsimile.
In case any officer, transfer agent or registrar whose signature or facsimile
signature appears on a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
<PAGE>
5.2. Lost Certificates
The Board of Directors, Chairperson, Chief Executive Officer,
President or Secretary may direct a new certificate of stock to be issued in
place of any certificate theretofore issued by the Corporation and alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming that the certificate of stock has been lost, stolen
or destroyed. When authorizing such issuance of a new certificate, the Board of
Directors or any such officer may, as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner's legal representative, to advertise the same in
such manner as the Board of Directors or such officer shall require and/or to
give the Corporation a bond or indemnity, in such sum or on such terms and
conditions as the Board of Directors or such officer may direct, as indemnity
against any claim that may be made against the Corporation on account of the
certificate alleged to have been lost, stolen or destroyed or on account of the
issuance of such new certificate or uncertificated shares.
5.3. Record Date
5.3.1. Actions by Stockholders
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty days nor less than ten days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting,
unless the Board of Directors fixes a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the Delaware General Corporation Law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation in the manner prescribed by Section 213(b)
of the Delaware General Corporation Law. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
the Delaware General Corporation Law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
<PAGE>
5.3.2. Payments
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5.4. Stockholders of Record
The Corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to receive dividends, to
receive notifications, to vote as such owner, and to exercise all the rights and
powers of an owner. The Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise may be provided by the Delaware General Corporation Law.
6. INDEMNIFICATION
6.1. Authorization of Indemnification
Each person who was or is a party or is threatened to be made a party
to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
by or in the right of the Corporation or otherwise (a "proceeding"), by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee,
partner (limited or general) or agent of another corporation or of a
partnership, joint venture, limited liability company, trust or other
enterprise, including service with respect to an employee benefit plan, shall be
(and shall be deemed to have a contractual right to be) indemnified and held
harmless by the Corporation (and any successor to the Corporation by merger or
otherwise) to the fullest extent authorized by, and subject to the conditions
and (except as provided herein) procedures set forth in the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but any such
amendment shall not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar as such
amendment limits or prohibits the indemnification rights that such law permitted
the Corporation to provide prior to such amendment), against all expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA taxes
or penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith; provided, however, that the
--------- --------
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person (except
for a suit or action pursuant to Section 6.2 hereof) only if such proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation.
Persons who are not directors or officers of the Corporation may be similarly
indemnified in respect of such service
<PAGE>
to the extent authorized at any time by the Board of Directors of the
Corporation. The indemnification conferred in this Section 6.1 also shall
include the right to be paid by the Corporation (and such successor) the
expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
provided, however, that, if and to the extent the Delaware General Corporation
- --------- --------
Law requires, the payment of such expenses (including attorneys' fees) incurred
by a director or officer in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so paid in advance if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified under this Section 6.1 or otherwise; and provided further, that,
-------- --------
such expenses incurred by other employees and agents may be so paid in advance
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
6.2. Right of Claimant to Bring Action Against the Corporation
If a claim under Section 6.1 is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring an action against the Corporation
to recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of prosecuting
such action. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed or is otherwise not entitled to indemnification under Section
6.1, but the burden of proving such defense shall be on the Corporation. The
failure of the Corporation (in the manner provided under the Delaware General
Corporation Law) to have made a determination prior to or after the commencement
of such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in the Delaware General Corporation Law shall not be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct. Unless otherwise specified in an agreement with the
claimant, an actual determination by the Corporation (in the manner provided
under the Delaware General Corporation Law) after the commencement of such
action that the claimant has not met such applicable standard of conduct shall
not be a defense to the action, but shall create a presumption that the claimant
has not met the applicable standard of conduct.
6.3. Non-exclusivity
The rights to indemnification and advance payment of expenses provided
by Section 6.1 hereof shall not be deemed exclusive of any other rights to which
those seeking indemnification and advance payment of expenses may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
<PAGE>
6.4. Survival of Indemnification
The indemnification and advance payment of expenses and rights thereto
provided by, or granted pursuant to, Section 6.1 hereof shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee, partner or agent and shall inure to the
benefit of the personal representatives, heirs, executors and administrators of
such person.
6.5. Insurance
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, against any liability asserted against such person or
incurred by such person in any such capacity, or arising out of such person's
status as such, and related expenses, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of the Delaware General Corporation Law.
7. GENERAL PROVISIONS
7.1. Inspection of Books and Records
Any stockholder, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent shall be the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney or other agent to
so act on behalf of the stockholder. The demand under oath shall be directed to
the Corporation at its registered office or at its principal place of business.
7.2. Dividends
The Board of Directors may declare dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of Incorporation
and the laws of the State of Delaware.
7.3. Reserves
The directors of the Corporation may set apart, out of the funds of
the Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
<PAGE>
7.4. Execution of Instruments
All checks, drafts or other orders for the payment of money, and
promissory notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors may from time to time
designate.
7.5. Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
7.6. Seal
The corporate seal shall be in such form as the Board of Directors
shall approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
7.7. Amendments
The Board of Directors or the stockholders may from time to time
adopt, amend or repeal the Bylaws of the Corporation. Such action by the Board
of Directors shall require the affirmative vote of at least a majority of the
directors then in office. Such action by the stockholders shall require the
affirmative vote of 66-2/3% of the total number of votes of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class thereon.
* * * * *
The foregoing Amended and Restated Bylaws were adopted by the Board of
Directors on October 16, 1997.
/s/ J. Thomas Mullis
----------------------------------------
J. Thomas Mullis, Secretary
