Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SPECTRASITE HOLDINGS, INC.
SPECTRASITE HOLDINGS, INC., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
FIRST: The name of the Corporation is SpectraSite Holdings, Inc. The
Corporation was originally incorporated under the name "Integrated Site
Development, Inc." and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of Delaware on April 25, 1997.
SECOND: This SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
restates and integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation as heretofore amended and was duly adopted by
the vote of the holders of a majority of the outstanding shares entitled to vote
thereon at a special meeting of the stockholders of the Corporation on November
16, 2000, after first having been declared advisable by the Board of Directors
of the Corporation, all in accordance with the provisions of Sections 242 and
245 of the Delaware General Corporation Law.
THIRD: The amendments to the Certificate of Incorporation of the
Corporation effected by this Certificate are as follows:
to change the authorized capital stock of the Corporation from (i)
Three Hundred Seventy Million Seven Hundred Forty-Nine Thousand Six
Hundred Twenty-Five (370,749,625) shares, divided into (x) Three
Hundred Million (300,000,000) shares of Common Stock, $0.001 par value
per share, and (y) Seventy Million Seven Hundred Forty-Nine Thousand
Six Hundred Twenty-Five (70,749,625) shares of Preferred Stock, $0.001
par value per share, consisting of Three Million Four Hundred Sixty-Two
Thousand Eight Hundred Thirty (3,462,830) shares of Series A
Convertible Preferred Stock, Seven Million (7,000,000) shares of Series
B Convertible Preferred Stock and Sixty Million Two Hundred Eighty-Six
Thousand Seven Hundred Ninety-Five (60,286,795) shares of Series C
Convertible Preferred Stock, to (ii) Three Hundred Forty Million
(340,000,000) shares, divided into (x) Three Hundred Million
(300,000,000) shares of Common Stock, $0.001 par value per share, and
(y) Forty Million (40,000,000) shares of Preferred Stock, $0.001 par
value per share, the rights and designations of which may be determined
as provided in a resolution or resolutions adopted by the Corporation's
Board of Directors at any time and from time to time;
FOURTH: The capital of the Corporation will not be reduced under, or by
reason of, the foregoing amendment and restatement of the Certificate of
Incorporation of the Corporation.
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FIFTH: The text of the Amended and Restated Certificate of Incorporation of
the Corporation, as heretofore amended, is hereby restated and further amended
to read in its entirety as follows:
"1. Name.
The name of the corporation is SpectraSite Holdings, Inc. (the
"Corporation").
2. Registered Office and Agent.
The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The registered agent in
charge thereof is The Corporation Trust Company.
3. Purpose.
The purpose for which the Corporation is organized 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.
4. Authorized Shares.
The total number of shares of capital stock which the
Corporation shall have authority to issue is Three Hundred Forty
Million (340,000,000) shares, divided into Three Hundred Million
(300,000,000) shares of Common Stock, $0.001 par value per share
("Common Stock"), and Forty Million (40,000,000) shares of Preferred
Stock, $0.001 par value per share (the "Preferred Stock"), the rights
and designations of such Preferred Stock to be determined as provided
in a resolution or resolutions adopted by the Corporation's Board of
Directors at any time and from time to time.
4.1 General.
Every reference in this Second Amended and Restated
Certificate of Incorporation to a majority or other portion of shares
of stock shall refer to such majority or other portion of the votes of
such shares of stock.
The designations and the powers, preferences and
rights of the capital stock of the Corporation and the qualifications,
limitations and restrictions thereof shall be as set forth in Sections
4.2, 4.3 and 4.4 below.
4.2 Preferred Stock.
The shares of Preferred Stock may be issued from time
to time in one or more series of any number of shares, provided that
the aggregate number of shares issued and not cancelled of any and all
such series shall not exceed the total number of shares of Preferred
Stock hereinabove authorized, and with distinctive serial designations,
all as shall hereafter be stated and expressed in the resolution or
resolutions providing for the issue of such shares of Preferred Stock
from time to time adopted by the Board pursuant to authority to do so
which is hereby vested in the Board. Each series of shares of Preferred
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Stock: (a) may have such voting powers, full or limited, or may be
without voting powers; (b) may be subject to redemption at such time or
times and at such prices; (c) may be entitled to receive dividends
(which may be cumulative or non-cumulative) at such rate or rates, on
such conditions and at such times, and payable in preference to, or in
such relation to, the dividends payable on any other class or classes
or series of stock; (d) may have such rights upon the dissolution of,
or upon any distribution of the assets of, the Corporation; (e) may be
made convertible into or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or
classes of shares of the Corporation at such price or prices or at such
rates of exchange and with such adjustments; (f) may be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption
of shares of such series in such amount or amounts; (g) may be entitled
to the benefit of conditions and restriction upon the creation of
indebtedness of the Corporation or any subsidiary, upon the issue of
any additional shares (including additional shares of such series or of
any other series) and upon the payment of dividends or the making of
other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of, any outstanding
shares of the Corporation; and (h) may have such other relative,
participating, optional or other special rights, qualifications,
privileges, preferences, limitations or restrictions thereof; all as
shall be stated in said resolution or resolutions providing for the
issue of such shares of Preferred Stock.
Any of the voting powers, designations, preferences, rights
and qualifications, limitations or restrictions of any such series of
Preferred Stock may be made dependent upon facts ascertainable outside
of the resolution or resolutions providing for the issue of such
Preferred Stock adopted by the Board pursuant to the authority vested
in it by this Section 4.2, provided that the manner in which such facts
shall operate upon the voting powers, designations, preferences, rights
and qualifications, limitations or restrictions of such series of
Preferred Stock is clearly and expressly set forth in the resolution or
resolutions providing for the issue of such Preferred Stock. The term
"facts" as used in the next preceding sentence shall have the meaning
given to it in Section 151(a) of the Delaware General Corporation Law.
Shares of Preferred Stock of any series that have been
redeemed (whether through the operation of a sinking fund or otherwise)
or that if convertible or exchangeable, have been converted into or
exchanged for shares of any other class or classes shall have the
status of authorized and unissued shares of Preferred Stock of the same
series and may be reissued as a part of the series of which they were
originally a part or may be reclassified and reissued as part of a new
series of shares of Preferred Stock to be created by resolution or
resolutions of the Board or as part of any other series of shares of
Preferred Stock, all subject to the conditions or restrictions on
issuance set forth in the resolution or resolutions adopted by the
Board providing for the issue of any series of shares of Preferred
Stock.
4.3 Common Stock.
Except as otherwise required by law or as otherwise
provided herein, each share of Common Stock shall have identical
powers, preferences, qualifications, limitations and other rights.
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A. Voting Rights. Each holder of Common Stock (except
as provided below in this paragraph A) shall be entitled to one vote for each
share of Common Stock held of record on all matters on which stockholders
generally are entitled to vote and to all other rights, powers and privileges of
stockholders under Delaware law. The shares of Common Stock shall be divided
into two classes, which shall be identical in all respects except that one class
shall be non-voting. Any shares of Common Stock held by any person subject to
the provisions of the Bank Holding Company Act of 1956, as amended (the "BHC
Act") (such person is referred to herein as a "Regulated Entity"), in excess of
5% of the total issued and outstanding Common Stock shall be non-voting, until
such shares are transferred to an entity not subject to such restrictions under
the BHC Act. Such shares of non-voting Common Stock shall not be included in
determining whether the requisite percentage of shares has consented to,
approved, adopted or taken any action and shall in all other respects be
equivalent to all other outstanding shares of Common Stock; provided that such
shares shall not be non-voting on matters that significantly and adversely
affect the rights or preferences of the Common Stock as determined by such
Regulated Entity.
B. Dividends. Subject to all of the rights of any
class of stock ranking senior to the Common Stock as to dividends, dividends may
be paid upon the Common Stock when, as and if declared by the Board out of funds
and other assets legally available for the payment of dividends.
C. Liquidation, Dissolution or Winding Up. Upon
the dissolution, liquidation or winding up of the Corporation, after any
preferential amounts to be distributed to the holders of the Preferred Stock and
any other class or series of stock having a preference over the Common Stock
then outstanding have been paid or declared and funds sufficient for the payment
thereof in full set apart for payment, the holders of the Common Stock shall be
entitled to participate ratably with all other stockholders entitled to
participate therein in all the remaining assets of the Corporation available for
distribution to its stockholders.
D. Transfers Under BHC Act. Notwithstanding any other
provision contained in this Amended and Restated Certificate of Incorporation,
if a holder and its affiliates (as defined in the BHC Act, "Affiliates"), on an
aggregate basis, of any Common Stock is a Regulated Entity, such holder may
transfer such Common Stock only under the following circumstances: (i) to the
Corporation; (ii) to the public in a public offering; (iii) in a disposition
pursuant to Rule 144 or Rule 144A under the Securities Act of 1933, as amended,
where no single purchaser receives from such holder and its Affiliates
convertible securities or warrants covering more than 2% of any class of the
Corporation's voting securities; (iv) in a single transaction to an independent
third party that already owns or has negotiated to purchase at least a majority
of the Common Stock or Preferred Stock (without regard to the transfer of such
Common Stock by such Regulated Entity); (v) in a transfer to an affiliate of
such Regulated Entity or to another Regulated Entity; or (vi) in any method of
transfer permitted by the Federal Reserve, as determined by the Regulated
Entity. If any Regulated Entity provides notice to the Corporation that such
Regulated Entity has determined in its sole discretion that applicable U.S.
federal banking laws no longer require that the Common Stock held by such
Regulated Entity be subject to all or any part of the preceding sentence, upon
receipt
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of such notice by the Corporation, the Common Stock held by such Regulated
Entity shall no longer be subject to those provisions of the two preceding
sentence identified in such notice.
4.4 Limitations on Preemptive Rights.
Except as otherwise expressly authorized by the Board in
writing, no holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive rights
to purchase or subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of any increase
of the authorized capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other securities convertible
into or exchangeable for stock of the Corporation of any class or series, but
any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board (subject to any such express written authorization of
the Board) to such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable by the Board
in the exercise of its sole discretion.
5. Amendments to the Bylaws of the Corporation.
The Board of Directors of the Corporation shall have the power
to adopt, amend or repeal the Bylaws of the Corporation.
6. Board of Directors.
6.1 Number of Directors.
The number of directors of the Corporation may be fixed by the
Bylaws.
6.2 Elections of Directors.
Elections of directors may be, but shall not be
required to be, by written ballot.
6.3 Limitation of Director Liability.
No director of the Corporation shall have personal liability
arising out of an action whether by or in the right of the Corporation
or otherwise for monetary damages for breach of fiduciary duty as a
director; provided, however, that the foregoing shall not limit or
eliminate the liability of a director (i) for any breach of such
director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware or any successor provision,
(iv) for any transaction from which such director derived an improper
personal benefit, or (v) acts or omissions occurring prior to the date
of the effectiveness of this provision.
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Furthermore, notwithstanding the foregoing provision,
in the event that the General Corporation Law of Delaware is amended or
enacted to permit further limitation or elimination of the personal
liability of the director, the personal liability of the Corporation's
directors shall be limited or eliminated to the fullest extent
permitted by the applicable law.
This provision shall not affect any provision permitted under
the General Corporation Law of Delaware in the Amended and Restated
Certificate of Incorporation, By-laws or contract or resolution of the
Corporation indemnifying or agreeing to indemnify a director against
personal liability. Any repeal or modification of this provision shall
not adversely affect any limitation hereunder on the personal liability
of the director with respect to acts or omissions occurring prior to
such repeal or modification."
SIXTH: The amendments and restatement effected herein were authorized
by the written consent of the holders of a majority of the outstanding shares
entitled to vote thereon pursuant to Sections 228, 242 and 245 of the Delaware
General Corporation Law.
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IN WITNESS WHEREOF, SPECTRASITE HOLDINGS, INC. has caused this certificate
to be signed by STEPHEN H. CLARK, its PRESIDENT, who hereby acknowledges under
penalties of perjury that the facts herein stated are true and that this
certificate is his act and deed, this 11th day of December 2000.
SPECTRASITE HOLDINGS, INC.
BY /S/ STEPHEN H. CLARK
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STEPHEN H. CLARK
PRESIDENT
