Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TELECORP-TRITEL HOLDING COMPANY
TeleCorp-Tritel Holding Company, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
FIRST: The name of the corporation is TeleCorp-Tritel Holding Company.
(the "Corporation"). The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware (the
"Secretary of State") on April 27, 2000 (the "Certificate of Incorporation").
SECOND: This Amended and Restated Certificate of Incorporation (the
"Amended and Restated Certificate of Incorporation") has been duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware ("GCL") and written consent has been
given by the stockholders of the Corporation in accordance with Section 228 of
the GCL.
THIRD: The Certificate of Incorporation is hereby amended and restated
in its entirety as follows:
ARTICLE I
The name of the Corporation shall be TeleCorp-Tritel Holding Company.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in, carry on and conduct
any lawful act or activity for which corporations may be organized under the
GCL.
ARTICLE IV
4.1 Classes of Stock. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is 1,954,463,093
consisting of (a) 20,000,000 shares of preferred stock, par value $.01 per share
(the "Preferred Stock"), consisting of 100,000 shares designated "Series A
Convertible Preferred Stock" (the "Series A Preferred Stock"), 200,000 shares
designated "Series B Preferred Stock" (the "Series B Preferred Stock"), 215,000
shares designated "Series C Preferred Stock" (the "Series C Preferred Stock"),
50,000 shares designated "Series D Preferred Stock" (the "Series D Preferred
Stock"), 30,000 shares designated "Series E Preferred Stock" (the "Series E
Preferred Stock"), 15,450,000 shares designated "Series F Preferred Stock" (the
"Series F Preferred Stock"), 100,000 shares designated as "Series G Preferred
Stock" (the "Series G Preferred Stock"), 200,000 shares designated as Series H
Preferred Stock" (the "Series H Preferred Stock"), 300,000 shares designated as
Series I Preferred Stock (the "Series I Preferred Stock") and 3,355,000
undesignated shares available for designation and issuance pursuant to Section
4.2, and (b) 1,934,463,093 shares of common stock, par value $0.01 per share
(the "Common Stock"), consisting of 1,108,550,000 shares designated "Class A
Voting Common Stock" (the "Class A Common Stock"), 808,550,000 shares designated
"Class B Non-Voting Common Stock" (the "Class B Common Stock"), 313,000 shares
designated "Class C Common Stock" (the "Class C Common Stock"), 1,047,000 shares
designated "Class D Common Stock" (the "Class D Common Stock"), 4,000,000 shares
designated "Class E Common Stock" (the "Class E Common Stock"), 12,000,000
shares designated "Class F Common Stock" (the "Class F Common Stock") and 3,093
shares designated "Voting Preference Common Stock" (the "Voting Preference
Common Stock"). (Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in Section 4.16.)
4.2 Additional Series of Preferred Stock and Voting Rights of
Preferred Stock.
(a) Subject to approval by holders of shares of any class or series of
Preferred Stock to the extent such approval is required by its terms, the Board
of Directors of the Corporation (the "Board of Directors") is hereby expressly
authorized, by resolution or resolutions, to provide, out of the unissued shares
of Preferred Stock, for series of Preferred Stock in addition to the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock, the
Series D Preferred Stock, the Series E Preferred Stock, the Series F Preferred
Stock, the Series G Preferred Stock, the Series H Preferred Stock and the Series
I Preferred Stock. Before any shares of any such series are issued, the Board of
Directors shall fix, and hereby is expressly empowered to fix, by resolutions,
the following provisions of the shares thereof:
(i) the designation of such series, the number of shares to constitute
such series and the stated value thereof if different from the par value
thereof;
(ii) whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms of
such voting rights, which may be general or limited;
(iii) the dividends, if any, payable on such series, whether any such
dividends shall be cumulative, and, if so, from what dates, the conditions
and dates upon which such dividends shall be payable, the preference or
relation which such dividends shall bear to the dividends payable on any
shares of stock of any other class or any other series of this class;
(iv) whether the shares of such series shall be subject to redemption
by the Corporation, and, if so, the times, prices and other conditions of
such redemption;
(v) the amount or amounts payable upon shares of such series upon, and
the rights of the holders of such series in, the voluntary or involuntary
liquidation, dissolution or winding up, or upon any distribution of the
assets, of the Corporation;
(vi) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to the operation
thereof;
(vii) whether the shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or any other series of
this class or any other securities and, if so, the price or prices or the
rate or rates of conversion or exchange and the method, if any, of
adjusting the same, and any other terms and conditions of conversion or
exchange;
(viii) the limitations and restrictions, if any, to be effective while
any shares of such series are outstanding upon the payment of dividends or
the making of other distributions on, and upon the purchase, redemption
other acquisition by the Corporation of, the Common Stock or shares of
stock of any other class or any other series of this class;
(ix) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of this
class or of any other class; and
(x) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations and
restrictions thereof.
(b) The powers, preferences and relative, participating, optional and
other special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of such
series, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall be cumulative.
(c) 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 any other
security 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 of Directors 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 of Directors providing for
the issue of any series of shares of Preferred Stock.
(d) Subject to the provisions of this Amended and Restated Certificate
of Incorporation and except as otherwise provided by law, the stock of the
Corporation, regardless of class, may be issued for such consideration and for
such corporate purposes as the Board of Directors may from time to time
determine.
(e) Voting.
(i) The holders of shares of Preferred Stock shall be entitled to such
voting rights as hereinafter provided, and shall be entitled to notice of
any stockholders' meeting and to vote upon such matters as provided herein
and in the Bylaws of the Corporation, and as may be provided by law.
Holders of any series of Preferred Stock shall not be entitled to cumulate
their votes for any purpose. Except as otherwise required by law or
provided herein, regardless of the number of shares of any series of
Preferred Stock then outstanding, each Series of Preferred Stock shall be
entitled to the number of votes voting as a class with all equity
securities of the Corporation enumerated below and the number of votes or
fractional votes to which each share of a particular series of Preferred
Stock shall be entitled shall be the quotient determined by dividing the
aggregate number of votes to which such series of Preferred Stock is
entitled by the number of shares of such series of Preferred Stock then
outstanding. Except as otherwise required by law or provided herein, the
Series A Preferred Stock shall have 67,804 votes; the Series B Preferred
Stock shall have 61,608 votes; the Series C Preferred Stock shall have
124,096 votes; the Series D Preferred Stock shall have 30,308 votes; the
Series E Preferred Stock shall have 16,184 votes; the Series H Preferred
Stock shall have the number of votes which shares of Series A Preferred
Stock exchanged for such Series H Preferred Stock in accordance with
Section 4.14 previously had; the Series I Preferred Stock shall have the
number of votes which shares of Series B Preferred Stock exchanged for such
Series I Preferred Stock in accordance with Section 4.14 previously had;
and the Series F Preferred Stock and the Series G Preferred Stock shall
have the voting rights described in Section 4.12(c).
(ii) In any matter requiring a separate class vote of holders of any
series of Preferred Stock or a separate vote of two or more series of
Preferred Stock voting together as a single class, for the purposes of such
a class vote, each share of Preferred Stock of such series shall be
entitled to one vote per share.
4.3 Powers, Preferences and Rights of the Series A Preferred Stock.
The powers, preferences and rights of the Series A Preferred Stock and the
qualifications, limitations and restrictions thereof are as follows:
(a) Ranking. The Series A Preferred Stock shall, with respect to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, rank on a parity with the Series B Preferred Stock, the Series H
Preferred Stock and the Series I Preferred Stock, and rank senior to Junior
Stock.
(b) Dividends and Distributions.
(i) Dividends. The holders of shares of Series A Preferred Stock shall
be entitled to receive, as and when declared by the Board of Directors, out
of funds legally available therefor, dividends on each outstanding share of
Series A Preferred Stock, at an annual rate per share equal to ten percent
(10%) of the Liquidation Preference, calculated on the basis of a 360-day
year consisting of twelve 30-day months. Dividends shall be paid quarterly
in arrears commencing on the Dividend Payment Date immediately following
the last Dividend Payment Date arising with respect to Predecessor Stock
exchanged for the Series A Preferred Stock in the manner provided in
paragraph (iii) below.
(ii) Accrued Dividends, Record Date. Dividends payable pursuant to
paragraph (i) above shall begin to accrue and be cumulative from the date
on which shares of Series A Preferred Stock are issued, or, with respect to
shares of Series A Preferred Stock received in exchange for any Predecessor
Stock, on the date when such Predecessor Stock was issued, and shall begin
to accrue on a daily basis, in each case whether or not earned or declared.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of the dividends payable pursuant to paragraph (i) above, which record date
shall not be more than 60 days prior to the Dividend Payment Date.
(iii) Payment. All dividends shall be payable in cash. Until the
December 2008 Dividend Payment Date, the Corporation shall have the option
to defer payment of dividends on Series A Preferred Stock. Any dividend
payments so deferred shall be payable on and not earlier than the December
2008 Dividend Payment Date.
(iv) Dividends Pro Rata. All dividends paid with respect to shares of
Series A Preferred Stock pursuant to this Section 4.3(b) shall be paid pro
rata to the holders entitled thereto. In the event that the funds legally
available therefor shall be insufficient for the payment of the entire
amount of cash dividends payable at any Dividend Payment Date, subject to
Section 4.3(c), such funds shall be allocated for the payment of dividends
with respect to the shares of Series A Preferred Stock, Series B Preferred
Stock, Series H Preferred Stock and Series I Preferred Stock pro rata based
upon the Liquidation Preference of the outstanding shares.
(c) Certain Restrictions.
(i) Notwithstanding the provisions of Sections 4.3(b), (e) and (f),
cash dividends on the Series A Preferred Stock may not be declared, paid or
set apart for payment, nor may the Corporation redeem, purchase or
otherwise acquire any shares of Series A Preferred Stock, if (A) the
Corporation is not solvent or would be rendered insolvent thereby or (B) at
such time the terms and provisions of any law or agreement of the
Corporation, including any agreement relating to its indebtedness,
specifically prohibit such declaration, payment or setting apart for
payment or such redemption, purchase or other acquisition, or provide that
such declaration, payment or setting apart for payment or such redemption,
purchase or other acquisition would constitute a violation or breach
thereof or a default thereunder.
(ii) So long as shares of Series A Preferred Stock are outstanding or
dividends payable on shares of Series A Preferred Stock have not been paid
in full in cash, then the Corporation shall not declare or pay cash
dividends on, or redeem, purchase or otherwise acquire for consideration,
any shares of Common Stock or other shares of Junior Stock, except with the
prior written consent of holders of a majority of the outstanding shares of
Series A Preferred Stock, except that the Corporation may acquire, in
accordance with the terms of any agreement between the Corporation and its
employees, shares of Common Stock or Preferred Stock at a price not greater
than the Market Price as of such date.
(iii) The Corporation shall not permit any Subsidiary of the
Corporation, or cause any other Person, to make any distribution with
respect to, or purchase or otherwise acquire for consideration, any shares
of capital stock of the Corporation, unless the Corporation could, pursuant
to paragraph (ii) above, make such distribution or purchase or otherwise
acquire such shares at such time and in such manner.
(d) Voting Rights; Election of Directors.
(i) In addition to the voting rights set forth in Section 4.2(e) or
otherwise provided by law, the holders of shares of Series A Preferred
Stock shall have the voting rights provided in paragraphs (ii) and (iii)
below.
(ii) Unless the consent or approval of a greater number of shares
shall then be required by law, the affirmative vote of the holders of a
majority of the outstanding shares of Series A Preferred Stock in person or
by proxy, at each special and annual meeting of stockholders called for the
purpose, or by written consent, shall be necessary to (A) authorize,
increase the authorized number of shares of or issue (including on
conversion or exchange of any convertible or exchangeable securities or by
reclassification) any shares of any class or classes of Senior Stock or
Parity Stock or any additional shares of Series A Preferred Stock, except
upon conversion or exchange pursuant to Section 4.14 of outstanding
securities, (B) authorize, adopt or approve each amendment to this Amended
and Restated Certificate of Incorporation that would increase or decrease
the par value of the shares of Series A Preferred Stock, alter or change
the powers, preferences or rights of the shares of Series A Preferred Stock
or alter or change the powers, preferences or rights of any other capital
stock of the Corporation if such alteration or change results in such
capital stock being Senior Stock or Parity Stock, (C) amend, alter or
repeal any provision of this Amended and Restated Certificate of
Incorporation so as to affect the shares of Series A Preferred Stock
adversely, or (D) authorize or issue any security convertible into,
exchangeable for or evidencing the right to purchase or otherwise receive
any shares of any class or classes of Senior Stock or Parity Stock.
(iii) So long as the Initial Holders own in the aggregate an amount of
shares of Series A Preferred Stock equal to at least 44,481 shares, holders
of shares of Series A Preferred Stock shall have the exclusive right,
voting separately as a single class, to designate one director of the
Corporation. The foregoing right to designate one director may be exercised
at any annual meeting of stockholders or a special meeting of stockholders
or holders of Series A Preferred Stock held for such purpose or any
adjournment thereof, or by the written consent, delivered to the Secretary
of the Corporation, of the holders of a majority of the issued and
outstanding shares of Series A Preferred Stock. Notwithstanding the
foregoing, the Initial Holders shall have the right, exercisable at any
time by written notice delivered to the Secretary of the Corporation, to
surrender and cancel irrevocably such right to designate one director of
the Corporation. So long as the Initial Holders own in the aggregate an
amount of shares of Series A Preferred Stock equal to at least 44,481
shares in the event any director so designated by the Initial Holders
ceases to be a director of the Corporation during such director's term
(whether or not such director resigns, is removed from the Board of
Directors with or without cause or ceases to be a director by reason of
death, disability or for any other reason), the Initial Holders shall have
the right to designate a replacement for such director, and the Corporation
shall cause to be elected or appointed for the remainder of the term of any
director so replaced any person designated by the Initial Holders, upon
written notice to the Corporation and the other members of the Board of
Directors which notice shall set forth the name of the member being
replaced and the name of the new member.
(e) Redemption at Option of the Corporation. The Corporation shall
have the right to redeem shares of Series A Preferred Stock pursuant to the
following provisions:
(i) The Corporation shall not have any right to redeem shares of the
Series A Preferred Stock prior to, with respect to any shares of Series A
Preferred Stock, the 30th day after the twentieth anniversary of the
issuance of such shares. Thereafter, subject to the restrictions in Section
4.3(c)(i), the Corporation shall have the right, at its sole option and
election, to redeem the shares of the Series A Preferred Stock, in whole
but not in part, at any time at a redemption price (the "Series A
Redemption Price") per share equal to the Liquidation Preference as of the
redemption date;
(ii) Notice of any redemption of the Series A Preferred Stock shall be
mailed at least ten, but not more than 60, days prior to the date fixed for
redemption to each holder of Series A Preferred Stock to be redeemed, at
such holder's address as it appears on the books of the Corporation. In
order to facilitate the redemption of the Series A Preferred Stock, the
Board of Directors may fix a record date for the determination of holders
of Series A Preferred Stock to be redeemed, or may cause the transfer books
of the Corporation to be closed for the transfer of the Series A Preferred
Stock, not more than 60 days prior to the date fixed for such redemption;
(iii) Within two Business Days after the redemption date specified in
the notice given pursuant to paragraph (ii) above and the surrender of the
certificate(s) representing shares of Series A Preferred Stock, the
Corporation shall pay to the holder of the shares being redeemed the Series
A Redemption Price therefor. Such payment shall be made by wire transfer of
immediately available funds to an account designated by such holder or by
overnight delivery (by a nationally recognized courier) of a bank check to
such holder's address as it appears on the books of the Corporation; and
(iv) Effective upon the date of the notice given pursuant to paragraph
(ii) above, notwithstanding that any certificate for such shares shall not
have been surrendered for cancellation, the shares represented thereby
shall no longer be deemed outstanding, the rights to receive dividends
thereon shall cease to accrue from and after the date of redemption
designated in the notice of redemption and all rights of the holders of the
shares of the Series A Preferred Stock called for redemption shall cease
and terminate, excepting only the right to receive the Series A Redemption
Price therefor in accordance with paragraph (iii) above and the right to
convert such shares into shares of Class A Common Stock until the close of
business on the third Business Day preceding the redemption date, as
provided in Section 4.3(i).
(f) Redemption at Option of Holder.
(i) No holder of shares of Series A Preferred Stock shall have any
right to require the Corporation to redeem any shares of Series A Preferred
Stock prior to, with respect to any shares of Series A Preferred Stock, the
30th day after the twentieth anniversary of the issuance of such shares.
Thereafter, subject to the restrictions set forth in Section 4.3(c)(i),
each holder of shares of Series A Preferred Stock shall have the right, at
the sole option and election of such holder, to require the Corporation to
redeem all (but not less than all) of the shares of Series A Preferred
Stock owned by such holder at a price per share equal to the Series A
Redemption Price;
(ii) The holder of any shares of the Series A Preferred Stock may
exercise such holder's right to require the Corporation to redeem such
shares by surrendering for such purpose to the Corporation, at its
principal office or at such other office or agency maintained by the
Corporation for that purpose, certificates representing the shares of
Series A Preferred Stock to be redeemed, accompanied by a written notice
stating that such holder elects to require the Corporation to redeem all
(but not less than all) of such shares in accordance with the provisions of
this Section 4.3(f), which notice may specify an account for delivery of
the Series A Redemption Price;
(iii) Within two Business Days after the surrender of such
certificates, the Corporation shall pay to the holder of the shares being
redeemed the Series A Redemption Price therefor. Such payment shall be made
by wire transfer of immediately available funds to an account designated by
such holder or by overnight delivery (by a nationally recognized courier)
of a bank check to such holder's address as it appears on the books of the
Corporation; and
(iv) Such redemptions shall be deemed to have been made at the close
of business on the date of the receipt of such notice and of such surrender
of the certificates representing the shares of the Series A Preferred Stock
to be redeemed and the rights of the holder thereof, except for the right
to receive the Series A Redemption Price therefor in accordance herewith,
shall cease on such date of receipt and surrender.
(g) Reacquired Shares. Any shares of the Series A Preferred Stock
redeemed or purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued pursuant to Section 4.2(c) as part
of a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions or restrictions on issuance
set forth herein.
(h) Liquidation, Dissolution or Winding Up.
(i) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, before any distribution or
payment to holders of Junior Stock, the holders of shares of Series A
Preferred Stock shall be entitled to be paid an amount equal to the
Liquidation Preference with respect to each share of Series A Preferred
Stock.
(ii) If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation available for distribution to
the holders of Series A Preferred Stock shall be insufficient to permit
payment in full to such holders of the sums which such holders are entitled
to receive in such case, then all of the assets available for distribution
to holders of the Series A Preferred Stock, Series B Preferred Stock,
Series H Preferred Stock and Series I Preferred Stock shall be distributed
among and paid to such holders ratably in proportion to the amounts that
would be payable to such holders if such assets were sufficient to permit
payment in full.
(iii) Neither the consolidation or merger of the Corporation with or
into any other Person nor the sale or other distribution to another Person
of all or substantially all the assets, property or business of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Section 4.3(h).
(i) Conversion.
(i) Stockholders' Right To Convert. No holder of shares of Series A
Preferred Stock shall have any right to convert any shares of Series A
Preferred Stock into Class A Common Stock or any other securities of the
Corporation prior to July 17, 2006. Thereafter, each share of Series A
Preferred Stock held by the Initial Holders or a Qualified Transferee shall
be convertible, at the sole option and election of the Initial Holders or
Qualified Transferee, into fully paid and non-assessable shares of Class A
Common Stock.
(ii) Number of Shares of Class A Common Stock Issuable upon
Conversion. The number of shares of Class A Common Stock to be issued upon
conversion of shares of Series A Preferred Stock pursuant to paragraph (i)
above shall be equal to the product of (A) the Series A Conversion Rate as
of the date of the applicable notice pursuant to paragraph (iv) below,
multiplied by (B) the number of shares of Series A Preferred Stock to be
converted.
(iii) Fractional Shares. Notwithstanding any other provision of this
Amended and Restated Certificate of Incorporation, the Corporation shall
not be required to issue fractions of shares upon conversion of any shares
of Series A Preferred Stock or to distribute certificates which evidence
fractional shares. In lieu of fractional shares, the Corporation may pay
therefor, at the time of any conversion of shares of Series A Preferred
Stock as herein provided, an amount in cash equal to such fraction
multiplied by the Market Price of a share of Class A Common Stock on such
date.
(iv) Mechanics of Conversion. The Initial Holders or Qualified
Transferee may exercise its option to convert by surrendering for such
purpose to the Corporation, at its principal office or such other office or
agency maintained by the Corporation for that purpose, certificates
representing the shares of Series A Preferred Stock to be converted,
accompanied by a written notice, delivered in accordance with the terms of
the Stockholders Agreement, stating that such holder elects to convert such
shares in accordance with this Section 4.3(i). The date of receipt of such
certificates and notice by the Corporation at such office shall be the
conversion date (the "Series A Conversion Date"). If required by the
Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or
his or its attorney duly authorized in writing. Within ten Business Days
after the Series A Conversion Date (or, if at the time of such surrender
the shares of Class A Common Stock are not listed or admitted for trading
on any national securities exchange and are not quoted on NASDAQ or any
similar service, within ten Business Days of the determination of the
Market Price pursuant to the Appraisal Procedure), the Corporation shall
issue to such holder a number of shares of Class A Common Stock into which
such shares of Series A Preferred Stock are convertible pursuant to
paragraph (ii) above. Certificates representing such shares of Class A
Common Stock shall be delivered to such holder at such holder's address as
it appears on the books of the Corporation.
(v) Termination of Rights. All shares of Series A Preferred Stock
which shall have been surrendered for conversion as herein provided shall
no longer be deemed to be outstanding and all rights with respect to such
shares, including the rights, if any, to receive notices and to vote, shall
immediately cease and terminate on the Series A Conversion Date, except
only the right of the holders thereof to receive shares of Class A Common
Stock in exchange therefor and payment of any declared and unpaid dividends
thereon.
(vi) No Conversion Charge or Tax. The issuance and delivery of
certificates for shares of Class A Common Stock upon the conversion of
shares of Series A Preferred Stock shall be made without charge to the
holder of shares of Series A Preferred Stock for any issue or transfer tax,
or other incidental expense in respect of the issuance or delivery of such
certificates or the securities represented thereby, all of which taxes and
expenses shall be paid by the Corporation.
(vii) Reorganization, Reclassification and Merger Adjustment. If there
occurs any capital reorganization or any reclassification of the Class A
Common Stock of the Corporation, the consolidation or merger of the
Corporation with or into another Person (other than a merger or
consolidation of the Corporation in which the Corporation is the continuing
corporation and which does not result in any reclassification or change of
outstanding shares of its Class A Common Stock) or the sale or conveyance
of all or substantially all of the assets of the Corporation to another
Person, then each share of Series A Preferred Stock shall thereafter be
convertible into the same kind and amounts of securities (including shares
of stock) or other assets, or both, which were issuable or distributable to
the holders of outstanding Class A Common Stock of the Corporation upon
such reorganization, reclassification, consolidation, merger, sale or
conveyance, in respect of that number of shares of Class A Common Stock
into which such share of Series A Preferred Stock might have been converted
immediately prior to such reorganization, reclassification, consolidation,
merger, sale or conveyance; and, in any such case, appropriate adjustments
(as determined in good faith by the Board of Directors of the Corporation,
whose determination shall be conclusive) shall be made to assure that the
provisions set forth herein shall thereafter be applicable, as nearly as
reasonably may be practicable, in relation to any securities or other
assets thereafter deliverable upon the conversion of the Series A Preferred
Stock.
(viii) Notice of Adjustment. Whenever the securities or other property
deliverable upon the conversion of the Series A Preferred Stock shall be
adjusted pursuant to the provisions hereof, the Corporation shall promptly
give written notice thereof to each holder of shares of Series A Preferred
Stock at such holder's address as it appears on the transfer books of the
Corporation and shall forthwith file, at its principal executive office and
with any transfer agent or agents for the Series A Preferred Stock and the
Class A Common Stock, a certificate, signed by the Chairman of the Board,
President or one of the Vice Presidents of the Corporation, and by its
Chief Financial Officer, Treasurer or one of its Assistant Treasurers,
stating the securities or other property deliverable per share of Series A
Preferred Stock calculated to the nearest cent or to the nearest
one-hundredth of a share and setting forth in reasonable detail the method
of calculation and the facts requiring such adjustment and upon which such
calculation is based. Each adjustment shall remain in effect until a
subsequent adjustment hereunder is required.
(ix) Reservation of Class A Common Stock. The Corporation shall at all
times reserve and keep available for issuance upon the conversion of the
shares of Series A Preferred Stock the maximum number of its authorized but
unissued shares of Class A Common Stock as is reasonably anticipated to be
sufficient to permit the conversion of all outstanding shares of Series A
Preferred Stock, and shall take all action required to increase the
authorized number of shares of Class A Common Stock if at any time there
shall be insufficient authorized but unissued shares of Class A Common
Stock to permit such reservation or to permit the conversion of all
outstanding shares of Series A Preferred Stock.
(j) Qualified Transfer. If at any time an Initial Holder or Qualified
Transferee desires to sell, transfer or otherwise dispose of shares of Series A
Preferred Stock pursuant to a Qualified Transfer, it shall, with respect to each
such proposed transfer, give written notice (a "Qualified Transfer Notice") to
the Corporation at its principal executive office specifying up to ten
prospective transferees. Upon receipt of such notice, the Corporation shall have
ten days to give written notice to the Initial Holders or Qualified Transferee
specifying its disapproval of (A) any or all of such prospective transferees if
it has good reason for such disapproval and specifying such reason and (B) up to
two of such prospective transferees with or without good reason.
(k) Notice of Certain Events. In case the Corporation shall propose at
any time or from time to time (i) to declare or pay any dividend payable in
stock of any class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock, (ii) to offer to the holders of
Common Stock rights or warrants to subscribe for or to purchase any additional
shares of Common Stock or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of its Common Stock,
(iv) to effect any consolidation, merger or sale, transfer or other disposition
of all or substantially all of the property, assets or business of the
Corporation which would, if consummated, adjust the Series A Conversion Rate or
the securities issuable upon conversion of shares of Series A Preferred Stock,
or (v) to effect the liquidation, dissolution or winding up of the Corporation,
then, in each such case, the Corporation shall mail to each holder of shares of
Series A Preferred Stock, at such holder's address as it appears on the transfer
books of the Corporation, a written notice of such proposed action, which shall
specify (A) the date on which a record is to be taken for the purpose of such
dividend or distribution of rights or warrants or, if a record is not to be
taken, the date as of which the holders of shares of Common Stock of record to
be entitled to such dividend or distribution of rights or warrants are to be
determined, or (B) the date on which such reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up is expected to
become effective, and such notice shall be so given as promptly as possible but
in any event at least ten Business Days prior to the applicable record,
determination or effective date, specified in such notice.
(l) Certain Remedies. Any registered holder of shares of Series A
Preferred Stock shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Amended and Restated Certificate of
Incorporation and to enforce specifically the terms and provisions of this
Amended and Restated Certificate of Incorporation in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which such holder may be entitled at law or in equity.
4.4 Powers, Preferences and Rights of the Series B Preferred Stock.
The Series B Preferred Stock shall rank on a parity with the Series A Preferred
Stock, the Series H Preferred Stock and the Series I Preferred Stock, and the
powers, preferences and rights of the Series B Preferred Stock, and the
qualifications, limitations, and restrictions thereof, shall be identical to
those of the Series A Preferred Stock, except that (a) any references to the
"December 2008 Dividend Payment Date" shall instead be a reference to the "June
2009 Dividend Payment Date"; (b) holders shall have the right to designate one
director and designate replacements for such director, pursuant to Section
4.3(d)(iii), so long as the Initial Holders own, in the aggregate, an amount of
Series B Preferred Stock equal to at least 60,446 shares, (c) no holder of
Series B Preferred Stock shall have the right to convert Series B Preferred
Stock into Class A Common Stock or any other securities, pursuant to Section
4.3(i), prior to January 15, 2007; and (d) the words "Series B Preferred Stock"
and "Series A Preferred Stock" shall be substituted for all references in
Section 4.3 to Series A Preferred Stock and Series B Preferred Stock,
respectively, and any references in Section 4.3 to "TeleCorp PCS, Inc." shall
instead be a reference to "Tritel, Inc."
4.5 Powers, Preferences and Rights of the Series C Preferred Stock.
The powers, preferences and rights of the Series C Preferred Stock and the
qualifications, limitations and restrictions thereof are as follows:
(a) Ranking. The Series C Preferred Stock shall rank (i) junior to the
Series A Preferred Stock, the Series B Preferred Stock, the Series H Preferred
Stock and the Series I Preferred Stock with respect to the payment of dividends
and the distribution of assets on liquidation, dissolution or winding up, (ii)
junior to the Series D Preferred Stock with respect to the distribution of
assets on a Statutory Liquidation, (iii) on a parity with the Series D Preferred
Stock with respect to the distribution of assets on liquidation, dissolution or
winding up (other than on a Statutory Liquidation), (iv) on a parity with the
Series D Preferred Stock and the Common Stock with respect to the payment of
dividends, and (v) senior to the Common Stock and any series or class of the
Corporation's common or preferred stock, now or hereafter authorized (other than
Series A Preferred Stock, Series B Preferred Stock, Series D Preferred Stock,
Series H Preferred Stock or Series I Preferred Stock), with respect to the
payment of dividends and the distribution of assets on liquidation, dissolution
and winding up.
(b) Dividends. Holders of Series C Preferred Stock shall be entitled
to dividends in cash or property when, as and if, declared by the Board of
Directors of the Corporation; provided that, in no event shall dividends in
excess of the Liquidation Preference be declared or paid. So long as shares of
Series C Preferred Stock are outstanding or dividends payable on shares of
Series C Preferred Stock have not been paid in full in cash, the Corporation
shall not declare or pay cash dividends on, or redeem, purchase or otherwise
acquire for consideration, any shares of any class of common stock or series of
preferred stock ranking junior to or on a parity with the Series C Preferred
Stock, except that the Corporation may acquire, in accordance with the terms of
any agreement between the Corporation and its employees, shares of Common Stock
or Preferred Stock at a price not greater than the Market Price as of such date.
The Corporation shall not declare or pay cash dividends on, or redeem, purchase
or otherwise acquire for consideration, any shares of Series D Preferred Stock
unless concurrently therewith the Corporation shall declare or pay cash
dividends on, or redeem, purchase or otherwise acquire for consideration, as the
case may be, shares of Series C Preferred Stock ratably in accordance with the
number of shares of Series C Preferred Stock and Series D Preferred Stock then
outstanding.
(c) Liquidation Preference.
(i) In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of Series C Preferred Stock shall be entitled to
receive out of the assets of the Corporation, whether such assets are
capital or surplus of any nature, after payment is made to holders of all
series of preferred stock ranking senior to the Series C Preferred Stock
with respect to rights on liquidation, dissolution or winding up
(including, in the case of a Statutory Liquidation, the Series D Preferred
Stock), but before any payment shall be made or any assets distributed to
the holders of Common Stock or any series of preferred stock ranking junior
to the Series C Preferred Stock with respect to rights on liquidation,
dissolution or winding up, an amount equal to the Liquidation Preference
and no more.
(ii) If upon any liquidation, dissolution or winding up of the
Corporation the assets of the Corporation to be distributed are
insufficient to permit the payment to all holders of Series C Preferred
Stock and any other series of preferred stock ranking on a parity with
Series C Preferred Stock with respect to rights on liquidation, dissolution
or winding up (including, in the case of a liquidation, dissolution or
winding up other than a Statutory Liquidation, the Series D Preferred
Stock), to receive their full preferential amounts, the entire assets of
the Corporation shall be distributed among the holders of Series C
Preferred Stock and all such other series ratably in accordance with their
respective Liquidation Preference.
(iii) Neither the consolidation or merger of the Corporation with or
into any other Person nor the sale or other distribution to another Person
of all or substantially all the assets, property or business of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Section 4.5(c).
(d) Voting Rights.
(i) In addition to the voting rights set forth in Section 4.2(e) or
otherwise provided by law, the holders of shares of Series C Preferred
Stock shall have the voting rights provided in paragraph (ii) below.
(ii) The affirmative vote of holders of not less than a majority of
Series C Preferred Stock shall be required to (A) authorize, increase the
authorized number of shares of or issue (including on conversion or
exchange of any convertible or exchangeable securities or by
reclassification) any shares of any class or classes of stock ranking
senior to or pari passu with the Series C Preferred Stock or any additional
shares of Series C Preferred Stock, except upon conversion or exchange
pursuant to Section 4.14 of outstanding securities, (B) authorize, adopt or
approve each amendment to this Amended and Restated Certificate of
Incorporation that would increase or decrease the par value of the shares
of Series C Preferred Stock, alter or change the powers, preferences or
rights of the shares of Series C Preferred Stock or alter or change the
powers, preferences or rights of any other capital stock of the Corporation
if such alteration or change results in such capital stock ranking senior
to or pari passu with the Series C Preferred Stock, (C) amend, alter or
repeal any provision of this Amended and Restated Certificate of
Incorporation so as to affect the shares of Series C Preferred Stock
adversely, or (D) authorize or issue any security convertible into,
exchangeable for or evidencing the right to purchase or otherwise receive
any shares of any class or classes of stock senior to or pari passu with
the Series C Preferred Stock.
(e) Redemption at Option of the Corporation. The Corporation shall
have the right to redeem shares of Series C Preferred Stock pursuant to the
following provisions:
(i) Subject to the restrictions set forth in Section 4.5(g)(i), the
Corporation shall have the right, at its sole option and election, to
redeem the shares of the Series C Preferred Stock, in whole but not in
part, at any time at a redemption price per share (the "Series C Redemption
Price") equal to the Liquidation Preference thereof as of the redemption
date; provided, that concurrently with such redemption, the Corporation
shall redeem the shares of Series D Preferred Stock, in whole and not in
part, at a redemption price per share (the "Series D Redemption Price")
equal to the Liquidation Preference thereof as of the redemption date;
provided, further, that if the funds legally available to the Corporation
are insufficient to effect the redemption of the Series C Preferred Stock
and the Series D Preferred Stock in full, such funds shall be allocated
among the shares of Series C Preferred Stock and Series D Preferred Stock
ratably in accordance with the number of shares of each Series outstanding
as of the redemption date;
(ii) Notice of any redemption of the Series C Preferred Stock and
Series D Preferred Stock shall be mailed at least ten but not more than 60
days prior to the date fixed for redemption to each holder of Series C
Preferred Stock and Series D Preferred Stock to be redeemed, at such
holder's address as it appears on the books of the Corporation. In order to
facilitate the redemption of the Series C Preferred Stock and Series D
Preferred Stock, the Board of Directors may fix a record date for the
determination of holders of Series C Preferred Stock and Series D Preferred
Stock to be redeemed, or may cause the transfer books of the Corporation to
be closed for the transfer of the Series C Preferred Stock and Series D
Preferred Stock, not more than 60 days prior to the date fixed for such
redemption;
(iii) Within two Business Days after the redemption date specified in
the notice given pursuant to paragraph (ii) above and the surrender of the
certificate(s) representing shares of Series C Preferred Stock or Series D
Preferred Stock, as the case may be, the Corporation shall pay to the
holder of the shares being redeemed the Series C Redemption Price or the
Series D Redemption Price therefor. Such payment shall be made by wire
transfer of immediately available funds to an account designated by such
holder or by overnight delivery (by a nationally recognized courier) of a
bank check to such holder's address as it appears on the books of the
Corporation; and
(iv) Effective upon the date of the notice given pursuant to paragraph
(ii) above, notwithstanding that any certificate for such shares shall not
have been surrendered for cancellation, the shares represented thereby
shall no longer be deemed outstanding, the rights to receive dividends
thereon shall cease to accrue from and after the date of redemption
designated in the notice of redemption and all rights of the holders of the
shares of the Series C Preferred Stock or Series D Preferred Stock, as the
case may be, called for redemption shall cease and terminate, excepting
only the right to receive the Series C Redemption Price or the Series D
Redemption Price therefor in accordance with paragraph (iii) above.
(f) Redemption at Option of Holder.
(i) No holder of shares of Series C Preferred Stock shall have any
right to require the Corporation to redeem any shares of Series C Preferred
Stock prior to, with respect to any shares of the Series C Preferred Stock,
the 30th day after the twentieth anniversary of the issuance of such
shares. Thereafter, subject to the restrictions set forth in Section
4.5(g)(i), each holder of shares of Series C Preferred Stock shall have the
right, at the sole option and election of such holder, to require the
Corporation to redeem all (but not less than all) of the shares of Series C
Preferred Stock owned by such holder at a price per share equal to the
Series C Redemption Price;
(ii) The holder of any shares of the Series C Preferred Stock may
exercise such holder's right to require the Corporation to redeem such
shares by surrendering for such purpose to the Corporation, at its
principal office or at such other office or agency maintained by the
Corporation for that purpose, certificates representing the shares of
Series C Preferred Stock to be redeemed, accompanied by a written notice
stating that such holder elects to require the Corporation to redeem all
(but not less than all) of such shares in accordance with the provisions of
this Section 4.5(f), which notice may specify an account for delivery of
the Series C Redemption Price;
(iii) Within two Business Days after the surrender of such
certificates, the Corporation shall pay to the holder of the shares being
redeemed the Series C Redemption Price therefor. Such payment shall be made
by wire transfer of immediately available funds to an account designated by
such holder or by overnight delivery (by a nationally recognized courier)
of a bank check to such holder's address as it appears on the books of the
Corporation; and
(iv) Such redemptions shall be deemed to have been made at the close
of business on the date of the receipt of such notice and of such surrender
of the certificates representing the shares of the Series C Preferred Stock
to be redeemed and the rights of the holder thereof, except for the right
to receive the Series C Redemption Price therefor in accordance herewith,
shall cease on such date of receipt and surrender.
(g) Certain Restrictions.
(i) Notwithstanding the provisions of Sections 4.5(b) or (f), cash
dividends on the Series C Preferred Stock may not be declared, paid or set
apart for payment, nor may the Corporation redeem, purchase or otherwise
acquire any shares of Series C Preferred Stock, if (A) the Corporation is
not solvent or would be rendered insolvent thereby or (B) at such time the
terms and provisions of any law or agreement of the Corporation, including
any agreement relating to its indebtedness, specifically prohibit such
declaration, payment or setting apart for payment or such redemption,
purchase or other acquisition, or provide that such declaration, payment or
setting apart for payment or such redemption, purchase or other acquisition
would constitute a violation or breach thereof or a default thereunder.
(ii) So long as shares of Series C Preferred Stock are outstanding or
dividends payable on shares of Series C Preferred Stock have not been paid
in full in cash, the Corporation shall not declare or pay cash dividends
on, or redeem, purchase or otherwise acquire for consideration, any shares
of Common Stock or other shares of capital stock of the Corporation ranking
junior to or on a parity basis with the Series C Preferred Stock, except
with the prior written consent of holders of a majority of the outstanding
shares of Series C Preferred Stock, except that the Corporation may
acquire, in accordance with the terms of any agreement between the
Corporation and its employees, shares of Common Stock from its employees at
a price equal to such employee's purchase price therefor without such
consent.
(iii) The Corporation shall not permit any Subsidiary of the
Corporation, or cause any other Person, to make any distribution with
respect to, or purchase or otherwise acquire for consideration, any shares
of Common Stock or other shares of capital stock of the Corporation ranking
junior to or on a parity basis with the Series C Preferred Stock unless the
Corporation could, pursuant to paragraph (i) above, make such distribution
or purchase or otherwise acquire such shares at such time and in such
manner.
4.6 Powers, Preferences and Rights of the Series D Preferred Stock.
(a) General. The powers, preferences and rights of the Series D
Preferred Stock, and the qualifications, limitations, and restrictions thereof,
shall be identical to those of the Series C Preferred Stock, except that (i) the
Series D Preferred Stock shall rank with respect to the other series and classes
of capital stock of the Corporation as provided in paragraph (b) below, (ii) the
shares of Series D Preferred Stock shall be subject to redemption, pro rata with
the Series C Preferred Stock, in accordance with Section 4.5(e), and (iii) the
words "Series D Preferred Stock" and "Series C Preferred Stock" shall be
substituted for all references in Section 4.5 to Series C Preferred Stock and
Series D Preferred Stock, respectively.
(b) Ranking. The Series D Preferred Stock shall rank (i) junior to the
Series A Preferred Stock, the Series B Preferred Stock, the Series H Preferred
Stock and the Series I Preferred Stock with respect to the payment of dividends
and the distribution of assets on liquidation, dissolution or winding up, (ii)
senior to the Series C Preferred Stock with respect to the distribution of
assets on a Statutory Liquidation, (iii) on a parity with the Series C Preferred
Stock with respect to the distribution of assets on liquidation, dissolution or
winding up (other than on a Statutory Liquidation), (iv) on a parity with the
Series C Preferred Stock and the Common Stock with respect to the payment of
dividends, and (v) senior to the Common Stock and any series or class of the
Corporation's common or preferred stock, now or hereafter authorized (other than
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series H Preferred Stock or Series I Preferred Stock), with respect to the
payment of dividends and distribution of assets on liquidation, dissolution and
winding up.
4.7 Powers, Preferences and Rights of the Series E Preferred Stock.
The powers, preferences and rights of the Series E Preferred Stock, and the
qualifications, limitations and restrictions thereof, shall be identical to
those of the Series C Preferred Stock, except that (a) the Series E Preferred
Stock shall rank, with respect to the payment of dividends and the distribution
of assets on liquidation, dissolution or winding up, (i) junior to the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, the Series H Preferred Stock and the Series I Preferred Stock
and (ii) senior to the Series F Preferred Stock and the Common Stock and any
series or class of the Corporation's common or preferred stock, now or hereafter
authorized (other than the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series H Preferred Stock or
Series I Preferred Stock), (b) the provisos to Section 4.5(e)(i) shall not apply
to a redemption of the Series E Preferred Stock, and (c) the words "Series E
Preferred Stock" shall be substituted for all references in Section 4.5 to
Series C Preferred Stock.
4.8 Powers, Preferences and Rights of the Series F Preferred Stock.
The powers, preferences and rights of the Series F Preferred Stock, and the
qualifications, limitations and restrictions thereof are as follows:
(a) Ranking. The Series F Preferred Stock shall rank (i) junior to the
Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock, the Series D Preferred Stock, the Series E Preferred Stock, the Series H
Preferred Stock and the Series I Preferred Stock with respect to the payment of
dividends and the distribution of assets on liquidation, dissolution or winding
up, (ii) on a parity with the Series G Preferred Stock with respect to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, (iii) on a parity with the Common Stock with respect to the
distribution of assets on liquidation, dissolution or winding up (other than on
a Statutory Liquidation), (iv) senior to the Common Stock with respect to the
distribution of assets on a Statutory Liquidation, (v) on a parity with the
Common Stock with respect to the payment of dividends, and (vi) senior to any
series or class of the Corporation's common or preferred stock hereafter
authorized (other than Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock,
Series I Preferred Stock or Common Stock), with respect to the payment of
dividends and the distribution of assets on liquidation, dissolution and winding
up.
(b) Dividends. Holders of Series F Preferred Stock shall be entitled
to dividends in cash or property when, as and if, declared by the Board of
Directors of the Corporation.
(c) Liquidation Preference.
(i) In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of Series F Preferred Stock shall be entitled to
receive out of the assets of the Corporation, whether such assets are
capital or surplus of any nature, after payment is made to holders of all
series of preferred stock ranking senior to the Series F Preferred Stock
with respect to rights on liquidation, dissolution or winding up, but
before any payment shall be made or any assets distributed to the holders
of Common Stock or any series of preferred stock ranking junior to the
Series F Preferred Stock with respect to rights on liquidation, dissolution
or winding up, an amount equal to the Liquidation Preference and no more.
(ii) If upon any liquidation, dissolution or winding up of the
Corporation the assets of the Corporation to be distributed are
insufficient to permit the payment to all holders of Series F Preferred
Stock and any other series of preferred stock ranking on a parity with
Series F Preferred Stock with respect to rights on liquidation, dissolution
or winding up, to receive their full preferential amounts, the entire
assets of the Corporation shall be distributed among the holders of Series
F Preferred Stock and all such other series ratably in accordance with
their respective Liquidation Preference.
(iii) After payment to the holders of Series F Preferred Stock of the
amounts set forth in paragraph (i) above, the entire remaining assets and
funds of the Corporation legally available for distribution, if any, shall
be distributed among the holders of the Participating Stock in proportion
to the shares of Participating Stock then held by them as of the date of
the liquidation, dissolution or winding up of the Corporation.
(iv) Neither the consolidation or merger of the Corporation with or
into any other Person nor the sale or other distribution to another Person
of all or substantially all the assets, property or business of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Section 4.8(c).
(d) Voting Rights.
(i) In addition to the voting rights set forth in Section 4.12(c)(i)
or otherwise provided by law, the holders of shares of Series F Preferred
Stock shall have the voting rights provided in paragraph (ii) below.
(ii) The affirmative vote of holders of not less than a majority of
Series F Preferred Stock shall be required to (A) authorize, increase the
authorized number of shares of or issue (including on conversion or
exchange of any convertible or exchangeable securities or by
reclassification) any shares of any class or classes of stock ranking
senior to or pari passu with the Series F Preferred Stock or any additional
shares of Series F Preferred Stock, except upon conversion or exchange of
outstanding securities pursuant to Section 4.14, (B) authorize, adopt or
approve each amendment to this Amended and Restated Certificate of
Incorporation that would increase or decrease the par value of the shares
of Series F Preferred Stock, alter or change the powers, preferences or
rights of the shares of Series F Preferred Stock or alter or change the
powers, preferences or rights of any other capital stock of the Corporation
if such alteration or change results in such capital stock ranking senior
to or pari passu with the Series F Preferred Stock, (C) amend, alter or
repeal any provision of this Amended and Restated Certificate of
Incorporation so as to affect the shares of Series F Preferred Stock
adversely, or (D) authorize or issue any security convertible into,
exchangeable for or evidencing the right to purchase or otherwise receive
any shares of any class or classes of stock senior to or pari passu with
the Series F Preferred Stock. For purposes hereof, Common Stock shall not
be deemed to be pari passu with or on parity with the Series F Preferred
Stock.
(e) Conversion. The shares of Series F Preferred Stock shall be
convertible into shares of Common Stock as follows:
(i) Optional Conversion. Each share of Series F Preferred Stock shall
be convertible, at the option of the holder thereof, at any time and from
time to time, into one fully paid and non-assessable share of Class A
Common Stock; provided that, unless and until the Tracked Common Stock
shall be convertible into Class A Common Stock in accordance with Section
4.12(e), each of the first 195,063 shares of Series F Preferred Stock
converted pursuant to this paragraph shall be convertible into one fully
paid and non-assessable share of Class D Common Stock.
(ii) Mechanics of Optional Conversion. In order for a holder of Series
F Preferred Stock to convert such shares into shares of Common Stock, such
holder shall surrender the certificate(s) for such shares of Series F
Preferred Stock at the office of the transfer agent for the Series F
Preferred Stock (or if the Corporation serves as its own transfer agent, at
the principal office of the Corporation), together with written notice that
such holder elects to convert all or any number of the shares of the Series
F Preferred Stock represented by such certificate(s). If required by the
Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or
his or its attorney duly authorized in writing. The date of receipt of such
certificates and notice by the transfer agent (or by the Corporation if the
Corporation serves as its own transfer agent) shall be the conversion date
(the "Optional Conversion Date"). The Corporation shall, within ten
Business Days after the Optional Conversion Date, issue and deliver at such
office to such holder of Series F Preferred Stock, or to his or its
nominees, one or more certificates for the number of whole shares of Common
Stock (and any shares of Series F Preferred Stock represented by the
certificate delivered to the Corporation by the holder thereof that are not
converted into Common Stock) issuable upon such conversion in accordance
with the provisions hereof.
(iii) Reservation of Shares. The Corporation shall at all times when
the Series F Preferred Stock shall be outstanding, reserve and keep
available out of its authorized but unissued stock, for the purpose of
effecting the conversion of the Series F Preferred Stock, such number of
its duly authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Series F
Preferred Stock. Before taking any action which would cause Common Stock
upon the conversion of Series F Preferred Stock, to be issued below the
then par value of the shares of Common Stock the Corporation will take any
corporate action that may, in the opinion of its counsel, be necessary in
order that the Corporation may validly and legally issue fully paid and
non-assessable shares of Common Stock, as the case may be, to the holders
of Series F Preferred Stock.
(iv) Adjustments for Dividends. Upon any conversion of Series F
Preferred Stock, no adjustment to the conversion ratio shall be made for
declared and unpaid dividends on the Series F Preferred Stock surrendered
for conversion or on the Common Stock delivered upon conversion.
(v) Termination of Rights. All shares of Series F Preferred Stock
which shall have been surrendered for conversion as herein provided shall
no longer be deemed to be outstanding and all rights with respect to such
shares, including the rights, if any, to receive notices and to vote, shall
immediately cease and terminate on the Optional Conversion Date, except
only the right of the holders thereof to receive shares of Common Stock in
exchange therefor and payment of any declared and unpaid dividends thereon.
On and as of the Optional Conversion Date, the shares of Common Stock
issuable upon such conversion shall be deemed to be outstanding, and the
holder thereof shall be entitled to exercise and enjoy all rights with
respect to such shares of Common Stock including the rights, if any, to
receive notices and to vote. Shares of Series F Preferred Stock converted
into Common Stock will be restored to the status of authorized but unissued
shares of Common Stock or preferred stock without designation as to class
or series, and may thereafter be issued, whether or not designated as
shares of Class A Common Stock or Series F Preferred Stock.
(vi) No Conversion Charge or Tax. The issuance and delivery of
certificates for shares of Common Stock upon the conversion of shares of
Series F Preferred Stock shall be made without charge to the holder of
shares of Series F Preferred Stock for any issue or transfer tax, or other
incidental expense in respect of the issuance or delivery of such
certificates or the securities represented thereby, all of which taxes and
expenses shall be paid by the Corporation.
(vii) Reorganization, Reclassification and Merger Adjustment. If there
occurs any capital reorganization or any reclassification of the Common
Stock of the Corporation, the consolidation or merger of the Corporation
with or into another Person (other than a merger or consolidation of the
Corporation in which the Corporation is the continuing corporation and
which does not result in any reclassification or change of outstanding
shares of its Common Stock) or the sale or conveyance of all or
substantially all of the assets of the Corporation to another Person, then
each share of Series F Preferred Stock shall thereafter be convertible into
the same kind and amounts of securities (including shares of stock) or
other assets, or both, which were issuable or distributable to the holders
of outstanding Common Stock of the Corporation upon such reorganization,
reclassification, consolidation, merger, sale or conveyance, in respect of
that number of shares of Common Stock into which such share of Series F
Preferred Stock might have been converted immediately prior to such
reorganization, reclassification, consolidation, merger, sale or
conveyance; and, in any such case, appropriate adjustments (as determined
in good faith by the Board of Directors of the Corporation, whose
determination shall be conclusive) shall be made to assure that the
provisions set forth herein shall thereafter be applicable, as nearly as
reasonably may be practicable, in relation to any securities or other
assets thereafter deliverable upon the conversion of the Series F Preferred
Stock.
(viii) Effect of Dividends, Distributions, Subdivisions of
Combinations. If the Corporation declares a dividend or other distribution
payable in Common Stock or Securities convertible into or exchangeable for
Common Stock or subdivides its outstanding shares of Common Stock into a
larger number or combines its outstanding shares of Common Stock into a
smaller number, then the number of shares of Common Stock issuable upon
conversion of the Series F Preferred Stock shall be appropriately adjusted
to give effect to such dividend, other distribution, subdivision or
combination.
(ix) Effect of Distributions In Kind. In case the corporation shall
distribute to the holders of its capital stock any additional shares of its
capital stock or other securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding
cash dividends) or options, warrants or rights, then, in such case,
immediately following the record date fixed for the determination of the
holders of common Stock entitled to receive such distribution, the number
of shares of Common Stock issuable upon conversion of the Series F
Preferred Stock shall be appropriately adjusted to give effect to such
distribution. Such adjustment shall be made on the date such distribution
is made, and shall become effective at the opening of business on the
business day following the record date for the determination of
stockholders entitled to such distribution.
(f) Certain Restrictions.
(i) Notwithstanding the provisions of Sections 4.8(b), cash dividends
on the Series F Preferred Stock may not be declared, paid or set apart for
payment, nor may the Corporation redeem, purchase or otherwise acquire any
shares of Series F Preferred Stock, if (A) the Corporation is not solvent
or would be rendered insolvent thereby or (B) at such time the terms and
provisions of any law or agreement of the Corporation, including any
agreement relating to its indebtedness, specifically prohibit such
declaration, payment or setting apart for payment or such redemption,
purchase or other acquisition, or provide that such declaration, payment or
setting apart for payment or such redemption, purchase or other acquisition
would constitute a violation or breach thereof or a default thereunder.
(ii) The Corporation shall not permit any Subsidiary of the
Corporation, or cause any other Person, to make any distribution with
respect to, or purchase or otherwise acquire for consideration, any shares
of Common Stock or other shares of capital stock of the Corporation ranking
junior to or on a parity basis with the Series F Preferred Stock unless the
Corporation could, pursuant to paragraph (i) above, make such distribution
or purchase or otherwise acquire such shares at such time and in such
manner.
(g) Redemption. The Series F Preferred Stock is not redeemable.
(h) Sinking Fund. There shall be no sinking fund for the payment of
dividends or Liquidation Preferences on the Series F Preferred Stock.
4.9 Powers, Preferences and Rights of the Series G Preferred Stock
(a) The powers, preferences and rights of the Series G Preferred
Stock, and the qualifications, limitations, and restrictions thereof, shall be
identical to those of the Series F Preferred Stock, except that (i) unless and
until the Tracked Common Stock shall be convertible into Class A Common Stock or
Class B Common Stock in accordance with Section 4.12(e)(iii), instead of each
share of Class A Common Stock issuable upon conversion by a holder of Series G
Preferred Stock being convertible on a one-for-one basis, each holder shall
receive their pro rata share (based on the number of shares of Series G
Preferred Stock outstanding) of (i) 14,971,876 shares of Class A Common Stock
and (ii)(A) 9,494 shares of Class F Common Stock, or (B) if the Tritel Tracking
Stock is convertible into Class A or Class B Common Stock in accordance with
Section 4.12(e)(iii), an additional 9,494 shares of Class A Common Stock, and
(ii) the words "Series G Preferred Stock" and "Series F Preferred Stock" shall
be substituted for all references in Section 4.8 to Series F Preferred Stock and
Series G Preferred Stock, respectively.
4.10 Powers, Preferences and Rights of the Series H Preferred Stock.
The Series H Preferred Stock shall rank on a parity with the Series A Preferred
Stock, the Series B Preferred Stock and Series I Preferred Stock, and the
powers, preferences and rights of the Series H Preferred Stock, and the
qualifications, limitations, and restrictions thereof, shall be identical to
those of the Series A Preferred Stock, except that (a) shares of Series H
Preferred Stock shall not have any right to vote on any matters to be voted on
by the stockholders of the Corporation except as provided in Sections 4.2(e)(i)
and 4.3(d)(i) and (ii), or as provided by law, and shall not be included in
determining the number of shares voting or entitled to vote on any such matters
(other than the matters described in Sections 4.2 (e)(i) and 4.3(d)(i) and (ii)
or otherwise required by law), (b) shares of Series H Preferred Stock shall not
be, pursuant to the terms of Section 4.3(i) or otherwise, convertible into
shares of Common Stock or any other security issued by the Corporation, (c) the
Corporation may redeem shares of Series H Preferred Stock in accordance with the
terms of Section 4.3(e) at any time without regard to whether the redemption
date is before, on or after the date referred to in Section 4.3(e)(i), (d)
shares of Series H Preferred Stock may be issued by the Corporation in
accordance with the terms of Section 4.14, (e) holders of Series H Preferred
Stock shall not, pursuant to Section 4.3(d) or otherwise, have the right to
designate any directors of the Corporation (except to the extent provided in
Section 4.2(e)(i)), and (f) the words "Series H Preferred Stock" and "Series A
Preferred Stock" shall be substituted for all references in Section 4.3 to
Series A Preferred Stock and Series H Preferred Stock, respectively.
4.11 Powers, Preferences and Rights of the Series I Preferred Stock.
The Series I Preferred Stock shall rank on a parity with the Series A Preferred
Stock, the Series B Preferred Stock and Series H Preferred Stock, and the
powers, preferences and rights of the Series I Preferred Stock, and the
qualifications, limitations, and restrictions thereof, shall be identical to
those of the Series B Preferred Stock, except that (a) shares of Series I
Preferred Stock shall not have any right to vote on any matters to be voted on
by the stockholders of the Corporation (except as provided in Sections 4.2(e)(i)
and 4.3(d)(i) and (ii)), or as provided by law, and shall not be included in
determining the number of shares voting or entitled to vote on any such matters
(other than the matters described in Sections 4.2(e)(i) and 4.3(d)(i) and (ii)
or otherwise required by law), (b) shares of Series I Preferred Stock shall not
be, pursuant to the terms of Section 4.3(i) or otherwise, convertible into
shares of Common Stock or any other security issued by the Corporation, (c) the
Corporation may redeem shares of Series I Preferred Stock in accordance with the
terms of Section 4.3(e) at any time without regard to whether the redemption
date is before, on or after the date referred to in Section 4.3(e)(i), (d)
shares of Series I Preferred Stock may be issued by the Corporation in
accordance with the terms of Section 4.14, (e) holders of Series I Preferred
Stock shall not, pursuant to Section 4.3(d) or otherwise, have the right to
designate any directors of the Corporation (except to the extent provided in
Section 4.2(e)(i)), and (f) the words "Series I Preferred Stock" and "Series B
Preferred Stock" shall be substituted for all references in Section 4.4 to
Series B Preferred Stock and Series I Preferred Stock, respectively.
4.12 Common Stock.
(a) General. Except as otherwise provided herein, all shares of Common
Stock issued and outstanding shall be identical, and shall entitle the holders
thereof to the same rights, powers and privileges of stockholders under Delaware
law. For purposes of this Section 4.12 (and the definitions relating thereto),
the Class A Common Stock and the Class B Common Stock are herein collectively
referred to as the "Non-Tracked Common Stock" and the Class C Common Stock, the
Class D Common Stock, the Class E Common Stock and the Class F Common Stock are
herein collectively referred to as the "Tracked Common Stock".
(b) Dividends. Subject to Section 4.13(a)(ii) and (b)(ii) and the
express terms of any outstanding series of Preferred Stock, dividends may be
paid in cash or otherwise with respect to each class of Common Stock out of the
assets of the Corporation, upon the terms, and subject to the limitations,
provided in this Section 4.12(b), as the Board of Directors may determine.
(i) Dividends on the Non-Tracked Common Stock. Dividends on the
Non-Tracked Common Stock may be declared and paid only out of the excess of
(A) the funds of the Corporation legally available therefor over (B) the
Tracked Business Available Dividend Amount (the "Non-Tracked Business
Available Dividend Amount").
(ii) Dividends on Class C and D Common Stock. Dividends on the Class C
Common Stock and the Class D Common Stock (the "TeleCorp Tracking Stock")
may be declared and paid only out of the lesser of (A) the funds of the
Corporation legally available therefor and (B) the TeleCorp Tracked
Business Available Dividend Amount. The Corporation shall not declare or
pay cash dividends on, or redeem, purchase or otherwise acquire for
consideration, any shares of TeleCorp Tracking Stock unless concurrently
therewith the Corporation shall declare or pay cash dividends on, or
redeem, purchase or otherwise acquire for consideration, as the case may
be, on the same terms, all shares of TeleCorp Tracking Stock ratably in
accordance with the number of shares of each class of TeleCorp Tracking
Stock then outstanding.
(iii) Dividends on the Class E and F Common Stock. Dividends on the
Class E Common Stock and the Class F Common Stock (the "Tritel Tracking
Stock") may be declared and paid only out of the lesser of (A) the funds of
the Corporation legally available therefor and (B) the Tritel Tracked
Business Available Dividend Amount. The Corporation shall not declare or
pay cash dividends on, or redeem, purchase or otherwise acquire for
consideration, any shares of Tritel Tracking Stock unless concurrently
therewith the Corporation shall declare or pay cash dividends on, or
redeem, purchase or otherwise acquire for consideration, as the case may
be, on the same terms, all shares of the Tritel Tracking Stock ratably in
accordance with the number of shares of each class of Tritel Tracking Stock
then outstanding.
(iv) Discrimination in Dividends Among the Tracked and Non-Tracked
Common Stock. The Board of Directors may at any time, subject to the
provisions of Sections 4.12(b)(i), (ii) and (iii) and Section 4.13, declare
and pay dividends exclusively on the Non-Tracked Common Stock, exclusively
on the TeleCorp Tracking Stock, exclusively on the Tritel Tracking Stock or
on each of such category of Common Stock in equal or unequal amounts,
notwithstanding the relative amounts of the Non-Tracked Business Available
Dividend Amount, the TeleCorp Tracked Business Available Dividend Amount or
the Tritel Tracked Business Available Dividend Amount.
(c) Voting.
(i) The holders of shares of Common Stock , Series F Preferred Stock
and Series G Preferred Stock shall be entitled to such voting rights as
hereinafter provided, and shall be entitled to notice of any stockholders'
meeting and to vote upon such matters as provided herein and in the Bylaws
of the Corporation, and as may be provided by law. Holders of any class of
Common Stock, Series F Preferred Stock or Series G Preferred Stock shall
not be entitled to cumulate their votes for any purpose. Except as
otherwise required by law or provided herein, regardless of the number of
shares of any class of Common Stock, Series F Preferred Stock or Series G
Preferred then outstanding, the Common Stock (other than the Class B Common
Stock and the Voting Preference Common Stock), the Series F Preferred Stock
and the Series G Preferred Stock shall be entitled to the number of votes
set forth below and the number of votes or fractional votes to which each
share of a particular class of Common Stock (other than the Class B Common
Stock and the Voting Preference Common Stock), Series F Preferred Stock and
Series G Preferred Stock shall be entitled shall be the quotient determined
by dividing the aggregate number of votes to which the Common Stock (other
than the Class B Common Stock and Voting Preference Common Stock), the
Series F Preferred Stock and the Series G Preferred Stock is entitled by
the number of shares of all Common Stock (other than the Class B Common
Stock and Voting Preference Common Stock), Series F Preferred Stock and
Series G Preferred Stock then outstanding. For purposes of such vote, the
shares of Series F Preferred Stock and Series G Preferred Stock shall be
entitled to the number of votes that the holders thereof would receive upon
conversion of such shares into Common Stock. Except as otherwise required
by law or provided herein, the Common Stock (other than the Class B Common
Stock and Voting Preference Common Stock), the Series F Preferred Stock and
the Series G Preferred Stock shall have 4,690,000 votes, the Voting
Preference Common Stock shall have 5,010,000 votes and the Class B Common
Stock shall have no votes.
(ii) A quorum for the transaction of business shall be present when a
majority of the shares of Voting Preference Common Stock outstanding as of
the record date are present and when shares of all classes of Common Stock
and Preferred Stock with at least 5,010,000 votes are present, except that
with respect to actions requiring a majority vote of any of the Class A
Common Stock, Class B Common Stock, Class C Common Stock, Class D Common
Stock, Class E Common Stock, Class F Common Stock, Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series
G Preferred Stock, Series H Preferred Stock or Series I Preferred Stock,
the presence of a majority of the outstanding shares of such class or
series shall also be required for a quorum to be present. Except as
otherwise required by law or provided herein, the majority vote of the
Voting Preference Common Stock present at any meeting at which a quorum is
present shall be sufficient to approve any action required to be approved
by the holders of the Common Stock and Preferred Stock.
(iii) In any matter requiring a separate class vote of holders of any
class of Common Stock or a separate vote of two or more classes of Common
Stock voting together as a single class, for the purposes of such a class
vote, each share of Common Stock of such class shall be entitled to one
vote per share.
(iv) In the event that the Corporation shall have received an opinion
of regulatory counsel of nationally recognized standing to the effect that
the rules, regulations or policies of the Federal Communications Commission
(the "FCC") permit the Class A Common Stock and the Voting Preference
Common Stock (x) to be voted as a single class on all matters, (y) to be
treated as a single class for purposes of all quorum requirements and (z)
to have one vote per share, then, unless the Board of Directors of the
Corporation shall have determined, within 30 days after the date of receipt
of such opinion, that obtaining the FCC consent described below would be
reasonably expected to have a significant detrimental effect on the
Corporation, the Corporation shall, upon the affirmative vote of 66-2/3% or
more of the Class A Common Stock, seek consent from the FCC to permit the
Class A Common Stock and Voting Preference Common Stock to vote and act as
a single class in the manner described above. From and after the date that
such consent is obtained, the Class A Common Stock and the Voting
Preference Common Stock shall be voted as a single class on all matters,
shall be treated as a single class for purposes of all quorum requirements,
and shall have one vote per share; provided, that the voting rights of the
Class B Common Stock, Class C Common Stock, Class D Common Stock, Class E
Common Stock, Class F Common Stock and the Preferred Stock shall remain
unaffected.
(v) The holders of shares of Class B Common Stock shall be entitled to
vote as a separate class on any amendment, repeal or modification of any
provision of this Amended and Restated Certificate of Incorporation that
adversely affects the powers, preferences or special rights of the holders
of the Class B Common Stock.
(vi) The holders of shares of Voting Preference Common Stock shall
have the exclusive right, voting separately as a single class, to elect two
directors to the Board of Directors of the Corporation. Each director so
elected shall be entitled to 1/2 of a vote on all matters voted upon by the
directors of the Corporation. The foregoing right to elect two directors
may be exercised at any annual meeting of stockholders or a special meeting
of stockholders or holders of Voting Preference Common Stock held for such
purpose or any adjournment thereof, or by the written consent, delivered to
the Secretary of the Corporation, of the holders of a majority of the
issued and outstanding shares of Voting Preference Common Stock.
Notwithstanding the foregoing, the holders of a majority of the shares of
Voting Preference Common Stock shall have the right, exercisable at any
time by written notice delivered to the Secretary of the Corporation, to
surrender and cancel irrevocably all or a portion of such right to elect
such directors. In the event any director so nominated by the holders of
the Voting Preference Common Stock ceases to be a director of the
Corporation during such director's term (whether or not such director
resigns, is removed from the Board of Directors with or without cause or
ceases to be a director by reason of death, disability or for any other
reason), the remaining director shall be entitled to one vote and the
voting rights of the holders of the shares of Voting Preference Common
Stock set forth in this Section 4.12(e)(vi) shall terminate and be of no
further force and effect. In the event the Corporation receives an opinion
from regulatory counsel as described in subparagraph (c)(iv) of this
Section, the voting rights of the holders of the shares of Voting
Preference Common Stock set forth in this Section 4.12(e)(vi) shall
terminate and be of no further force and effect.
(d) Dissolution, Liquidation 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, (i) the holders of the TeleCorp Tracking Stock shall be
entitled to receive pro rata the TeleCorp Tracked Business Available Liquidation
Amount, (ii) the holders of the Tritel Tracking Stock shall be entitled to
receive pro rata the Tritel Tracked Business Available Liquidation Amount and
(iii) the holders of the Non-Tracked Common Stock shall be entitled to receive
pro rata the excess of (A) all the remaining assets of the Corporation available
for distribution to its stockholders over (B) the TeleCorp Tracked Business
Available Liquidation Amount plus the Tritel Tracked Business Available
Liquidation Amount.
(e) Conversion.
(i) Each share of Class B Common Stock may, at the option of the
holder thereof, at any time, be converted into one fully paid and
non-assessable share of Class A Common Stock.
(ii) Each share of Class A Common Stock may, at the option of the
holder thereof, at any time, be converted into one fully paid and
non-assessable share of Class B Common Stock.
(iii) In the event that the Corporation shall have received an opinion
of regulatory counsel of nationally recognized standing to the effect that
the rules, regulations or policies of the FCC permit the conversion of
shares of Tracked Common Stock into Class A Common Stock or Class B Common
Stock, then, unless the Board of Directors of the Corporation shall have
determined, within 30 days after receipt of such opinion, that permitting
such conversion would be reasonably expected to have a significant
detrimental effect on the Corporation, each share of Class C Common Stock,
Class D Common Stock, Class E Common Stock and Class F Common Stock shall,
at the option of the holder thereof and upon the affirmative vote of
66-2/3% or more of the Class A Common Stock, be converted into one fully
paid and non-assessable share of Class A Common Stock or Class B Common
Stock.
4.13 Participating Stock.
(a) Participating Stock
(i) Changes in Capital Stock. The Corporation shall not effect any
change in or reclassification of any class or series of the outstanding
Participating Stock whether through stock dividends, stock splits, reverse
stock splits, combinations or otherwise, without the payment to the
Corporation of any consideration therefor in money, services or property,
unless concurrently therewith the Corporation shall effect a corresponding
change in each other class and series of the outstanding Participating
Stock.
(ii) Dividends and Distributions. The Corporation shall not declare or
pay cash dividends on, or redeem, purchase or otherwise acquire for
consideration, any shares of Participating Stock unless concurrently
therewith the Corporation shall declare or pay cash dividends on, or
redeem, purchase or otherwise acquire for consideration, as the case may
be, on the same terms, all shares of Participating Stock ratably in
accordance with the number of shares of each class and series of
Participating Stock then outstanding.
(iii) Notices. Any written notice or communication by the Corporation
to holders of any class or series of Participating Stock shall be sent to
all holders of Participating Stock.
(b) Tritel Tracking Stock.
(i) Changes in Capital Stock. The Corporation shall not effect any
change in or reclassification of any class or series of the outstanding
Tritel Tracking Stock, whether through stock dividends, stock splits,
reverse stock splits, combinations or otherwise, without the payment to the
Corporation of any consideration therefor in money, services or property,
unless concurrently therewith the Corporation shall effect a corresponding
change in each other class and series of the outstanding Tritel Tracking
Stock.
(ii) Dividends and Distributions. The Corporation shall not declare or
pay cash dividends on, or redeem, purchase or otherwise acquire for
consideration, any shares of Tritel Tracking Stock unless concurrently
therewith the Corporation shall declare or pay cash dividends on, or
redeem, purchase or otherwise acquire for consideration, as the case may
be, on the same terms, all shares of Tritel Tracking Stock ratably in
accordance with the number of shares of each class and series of Tritel
Tracking Stock then outstanding.
(iii) Notices. Any written notice or communication by the Corporation
to holders of any class or series of Tritel Tracking Stock shall be sent to
all holders of Tritel Tracking Stock.
4.14 Exchange of Capital Stock. Notwithstanding any other provision of
this Amended and Restated Certificate of Incorporation to the contrary, in the
event that AT&T Wireless terminates its obligations under Section 8.6 of the
Stockholders Agreement pursuant to Section 8.8(c) thereof with respect to any
Overlap Territory (as defined therein) (any such termination being referred to
hereinafter as the "Exchange Event"), the following provisions shall apply:
(a) Right to Exchange. The Corporation shall have the right,
exercisable in its sole discretion by written notice (the "Exchange Notice")
given to the Initial Holders and Section 4.14 Transferees within 60 days after
the Exchange Event, to:
(i) require the Initial Holders and each Section 4.14 Transferee to
exchange for an equivalent number of shares of Series H Preferred Stock
either (A) all of the shares of Series A Preferred Stock then owned by the
Initial Holders and each Section 4.14 Transferee or (B) a number of shares
of Series A Preferred Stock then owned by each such holder equal to the
product of (x) the number of shares of Series A Preferred Stock then owned
by such holder multiplied by (y) a fraction, the numerator of which is
equal to the number of POPs (as defined in the Stockholders Agreement) in
the Overlap Territory and the denominator of which is equal to the total
number of POPs in the Territory (as defined in the Stockholders Agreement);
(ii) require the Initial Holders and each Section 4.14 Transferee to
exchange, for a number of shares of Series H Preferred Stock determined in
accordance with paragraph (b) below, either (A) all of the shares of
capital stock of the Corporation received in exchange for TeleCorp Original
Shares and that the Initial Holders or a Section 4.14 Transferee continues
to own on the date of delivery of the Exchange Notice (any such shares
being referred to hereinafter collectively as "TeleCorp Exchange Shares")
or (B) a number of TeleCorp Exchange Shares equal to the product of (x) the
number of TeleCorp Exchange Shares then owned by each such holder,
multiplied by (y) a fraction, the numerator of which is equal to the number
of POPs in the Overlap Territory and the denominator of which is equal to
the total number of POPs in the Territory; provided, that (x) if the
Corporation exercises its right under clause (i)(A) of this paragraph (a),
it shall be required to exercise its right under clause (ii)(A) of this
paragraph (a), and vice-versa; and if the Corporation exercises its right
under clause (i)(B) of this paragraph (a), it shall be required to exercise
its right under clause (ii)(B) of this paragraph (a), and vice-versa and
(y) the provisions of this Section 4.14(a) shall not apply to any Section
4.14 Transferee which is a Cash Equity Investor;
(iii) require the Initial Holders and each Section 4.14 Transferee to
exchange for an equivalent number of shares of Series I Preferred Stock
either (A) all of the shares of Series B Preferred Stock then owned by the
Initial Holders and each Section 4.14 Transferee or (B) a number of shares
of Series B Preferred Stock then owned by each such holder equal to the
product of (x) the number of shares of Series B Preferred Stock then owned
by such holder multiplied by (y) a fraction, the numerator of which is
equal to the number of POPs (as defined in the Stockholders Agreement) in
the Overlap Territory and the denominator of which is equal to the total
number of POPs in the Territory (as defined in the Stockholders Agreement);
and
(iv) require the Initial Holders and each Section 4.14 Transferee to
exchange, for a number of shares of Series I Preferred Stock determined in
accordance with paragraph (b) below, either (A) all of the shares of
capital stock of the Corporation received in exchange for Tritel Original
Shares and that the Initial Holders or a Section 4.14 Transferee continues
to own on the date of delivery of the Exchange Notice (any such shares
being referred to hereinafter collectively as "Tritel Exchange Shares") or
(B) a number of Tritel Exchange Shares equal to the product of (x) the
number of Tritel Exchange Shares then owned by each such holder, multiplied
by (y) a fraction, the numerator of which is equal to the number of POPs in
the Overlap Territory and the denominator of which is equal to the total
number of POPs in the Territory; provided, that (x) if the Corporation
exercises its right under clause (iii)(A) of this paragraph (a), it shall
be required to exercise its right under clause (iv)(A) of this paragraph
(a), and vice-versa; and if the Corporation exercises its right under
clause (iii)(B) of this paragraph (a), it shall be required to exercise its
right under clause (iv)(B) of this paragraph (a), and vice-versa and (y)
the provisions of this Section 4.14(a) shall not apply to any Section 4.14
Transferee which is a Cash Equity Investor.
(TeleCorp Exchange Shares and Tritel Exchange Shares subject to exchange
pursuant to this Section 4.14 are hereinafter referred to collectively as
"Exchange Shares.")
(b) Number of Shares of Series H and I Preferred Stock Issuable in
Exchange. The number of shares of Series H Preferred Stock issuable in exchange
for TeleCorp Exchange Shares pursuant to clause (ii) of paragraph (a) above
shall be equal to the quotient of the aggregate purchase price paid by the
Initial Holders for the TeleCorp Exchange Shares being exchanged, divided by
$1,000. The number of shares of Series I Preferred Stock issuable in exchange
for Tritel Exchange Shares pursuant to clause (iv) of paragraph (a) above shall
be equal to the quotient of the aggregate purchase price paid by the Initial
Holders for the Tritel Exchange Shares being exchanged, divided by $1,000.
(c) Fractional Shares. Notwithstanding any other provision of this
Amended and Restated Certificate of Incorporation, the Corporation shall not be
required to issue fractions of shares upon exchange of any Exchange Shares or to
distribute certificates which evidence fractional shares. In lieu of fractional
shares, the Corporation may pay therefor, at the time of any exchange of
Exchange Shares as herein provided, an amount in cash equal to such fraction
multiplied by the Market Price of a share of Common Stock on such date.
(d) Mechanics of Exchange. The Exchange Notice shall specify the date
fixed for the exchange (the "Exchange Date"), which shall be at least ten but no
more than 60 days following delivery of the Exchange Notice, and the place
designated for exchange of the Exchange Shares pursuant to this Section 4.14.
Such notice will be sent by first class or registered mail, postage prepaid, to
the Initial Holders and each Section 4.14 Transferee at such holder's address
last shown on the records of the transfer agent for the Exchange Shares (or the
records of the Corporation if it serves as its own transfer agent). On or before
the Exchange Date, the Initial Holders and each Section 4.14 Transferee shall
surrender its certificate or certificates for all such shares to the Corporation
at the place designated in such notice. If required by the Corporation,
certificates surrendered for exchange shall be endorsed or accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the Initial Holders and each Section 4.14
Transferee or its attorney duly authorized in writing.
(e) Termination of Rights. On and after the Exchange Date (whether or
not the applicable certificates have theretofore been surrendered), all rights
with respect to the Exchange Shares, including the rights, if any, to receive
notices and to vote, will terminate, except only the rights of the Initial
Holders and Section 4.14 Transferees to receive certificates for the number of
shares of Series H Preferred Stock or Series I Preferred Stock, as applicable,
into which such Exchange Shares have been exchanged, upon surrender of its
certificate or certificates therefor, and payment of any declared but unpaid
dividends thereon (which shall accrue and be payable at the times and on the
other terms applicable to such dividends when declared) and payment of any
deferred dividends in respect of Series A Preferred Stock and Series B Preferred
Stock which shall be payable as set forth in Section 4.3(b)(iii). Within ten
Business Days after the Exchange Date, the Corporation shall issue and deliver
to the Initial Holders and each Section 4.14 Transferee, or on its written order
to its nominees, a certificate or certificates for the number of whole shares of
Series H Preferred Stock or Series I Preferred Stock, as applicable, issuable
upon such exchange in accordance with the provisions hereof, together with cash
in lieu of fractional shares calculated in accordance with paragraph (c) of this
Section 4.14.
(f) Reservation of Shares. The Corporation shall at all times reserve
and keep available for issuance upon the exchange of Exchange Shares the maximum
number of its authorized but unissued shares of Series H Preferred Stock and
Series I Preferred Stock as is reasonably anticipated to be sufficient to permit
the exchange of all outstanding Exchange Shares, and shall take all action
required to increase the authorized number of shares of Series H Preferred Stock
and Series I Preferred Stock if at any time there shall be insufficient
authorized but unissued shares of Series H Preferred Stock or Series I Preferred
Stock to permit such reservation or to permit the exchange of all outstanding
Exchange Shares.
(g) Adjustments for Dividends. Upon any exchange of Exchange Shares,
no adjustment to the rate of conversion shall be made for accrued and unpaid
dividends (whether or not declared) on the Exchange Shares, as the case may be,
surrendered for exchange or on the Series H Preferred Stock or Series I
Preferred Stock delivered upon exchange.
(h) No Exchange Charge or Tax. The issuance and delivery of
certificates for shares of Series H Preferred Stock or Series I Preferred Stock
upon the exchange of Exchange Shares shall be made without charge to the Initial
Holder for any issue or transfer tax, or other incidental expense in respect of
the issuance or delivery of such certificates or the securities represented
thereby, all of which taxes and expenses shall be paid by the Corporation.
4.15 Redemption of Capital Stock; FCC Approval.
(a) Redemption. Notwithstanding any other provision of this Amended
and Restated Certificate of Incorporation to the contrary, outstanding shares of
capital stock of the Corporation held by Disqualified Holders 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 GCL 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:
(i) the redemption price of the shares to be redeemed pursuant to this
Section 4.15 shall be equal to the lesser of (x) the Market Price or (y) if
such stock was purchased by such Disqualified Holder within one year of the
Section 4.15 Redemption Date, such Disqualified Holder's purchase price for
such shares;
(ii) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(iii) if less than all the 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;
(iv) at least 30 days' written notice of the Section 4.15 Redemption
Date shall be given to the record holders of the shares selected to be
redeemed (unless waived in writing by any such holder); provided, however,
that only 10 days' written notice of the Redemption Date shall be given to
record holders if the cash or Redemption Securities necessary to effect the
redemption shall have been deposited in trust for the benefit of such
record holders and subject to immediate withdrawal by them upon surrender
of the stock certificates for their shares to be redeemed; provided,
further, that the record holders of the shares selected to be redeemed may
transfer such shares prior to the Section 4.15 Redemption Date to any
holder that is not a Disqualified Holder and, thereafter, for so long as
such shares are not held by a Disqualified Holder, such shares shall not be
subject to redemption by the Corporation;
(v) from and after the Section 4.15 Redemption Date, any and all
rights of whatever nature (including without limitation any rights to vote
or participate in dividends declared on stock of the same class or series
as such shares) with respect to the shares selected from redemption held by
Disqualified Holders on the Section 4.15 Redemption Date shall cease and
terminate and such Disqualified Holders thenceforth shall be entitled only
to receive the cash or Redemption Securities payable upon redemption; and
(vi) such other terms and conditions as the Board of Directors shall
determine.
(b) FCC Approval. Notwithstanding anything herein to the contrary, if
Federal Communications Commission or other regulatory approval is required to be
obtained prior to the conversion of shares of any series or class of Preferred
Stock or Common Stock, the holder thereof may nevertheless elect to convert any
or all of its shares by written notice given to the Corporation in accordance
with the applicable provision hereof, provided, that such conversion shall not
become effective until the close of business on the date of the receipt of the
last of any such approvals and of the surrender of the certificates representing
the shares of the applicable Preferred Stock or Common Stock to be converted,
and the rights of the holder thereof shall continue in full force and effect
pending the receipt of all such approvals, except that, in the case of the
Series A Preferred Stock and the Series B Preferred Stock, no dividends shall be
payable in respect of the period following the Series A Conversion Date or
Series B Conversion Date, respectively, unless the required approvals are not
obtained and the conversion has not been effected within one year of the Series
A Conversion Date or the Series B Conversion Date, as applicable, and the
applicable conversion notice is withdrawn, in which event the obligation to pay
dividends from and after the Series A Conversion Date or Series B Conversion
Date shall be payable in accordance with the terms of Section 4.3(b).
4.16 Definitions. For the purposes of this Amended and Restated
Certificate of Incorporation, the following terms shall have the meanings
indicated:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
"Appraisal Procedure" means the following procedure for determining
the Market Price, for the purpose of calculating the Series A Conversion Rate or
Series B Conversion Rate, in the event that the shares of Class A Common Stock
are not listed or admitted for trading on any national securities exchange and
are not quoted on NASDAQ or any similar service:
(i) Two independent accounting or investment banking firms of
nationally recognized standing (each, an "Appraiser"), one chosen by the
Corporation and one chosen by the holders of a majority of the outstanding
shares of Series A Preferred Stock and the Series B Preferred Stock, as the
case may be, shall each determine and attempt to mutually agree upon, the
Market Price. Each party shall deliver a notice to the other appointing its
Appraiser within 15 days after the applicable notice and surrender pursuant
to Section 4.3(e)(iv). If either the Corporation or such holders fail to
appoint an appraiser within such 15-day period, the Market Price shall be
determined by the Appraiser that has been so appointed.
(ii) If within 30 days after appointment of the two Appraisers they
are unable to agree upon the Market Price, an independent accounting or
investment banking firm of nationally recognized standing shall within ten
days thereafter be chosen to serve as a third Appraiser by the mutual
consent of such first two Appraisers. The determination of the Market Price
by the third Appraiser so appointed and chosen shall be made within 30 days
after the selection of such third Appraiser.
(iii) If three Appraisers shall be appointed and the determination of
one Appraiser is disparate from the middle determination by more than twice
the amount by which the other determination is disparate from the middle
determination, then the determination of such Appraiser shall be excluded,
the remaining two determinations shall be averaged, and such average shall
be binding and conclusive on the Corporation and the holders of the Series
A Preferred Stock and the Series B Preferred Stock; as the case may be,
otherwise the average of all three determinations shall be binding and
conclusive on the Corporation and the holders of the Series A Preferred
Stock and the Series B Preferred Stock, as the case may be.
(iv) In connection with any appraisal conducted pursuant to this
Appraisal Procedure, the Appraiser shall adhere to the guidelines provided
in the definition of "Market Price" set forth below, including the proviso
thereto.
(v) The fees and expenses of each Appraiser shall be borne by the
Corporation.
"AT&T Wireless" shall mean AT&T Wireless PCS, LLC, a Delaware limited
liability company.
"Board of Directors" has the meaning specified in Section 4.2(a).
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in the City of New York are authorized or
required by law or executive order to close.
"Class A Common Stock" has the meaning specified in Section 4.1.
"Class B Common Stock" has the meaning specified in Section 4.1.
"Class C Common Stock" has the meaning specified in Section 4.1.
"Class D Common Stock" has the meaning specified in Section 4.1.
"Class E Common Stock" has the meaning specified in Section 4.1.
"Class F Common Stock" has the meaning specified in Section 4.1.
"Closing Price" shall mean, with respect to each share of any class or
series of capital stock for any day, (i) the last reported sale price regular
way or, in case no such sale takes place on such day, the average of the closing
bid and asked prices regular way, in either case as reported on the principal
national securities exchange on which such class or series of capital stock is
listed or admitted for trading or (ii) if such class or series of capital stock
is not listed or admitted for trading on any national securities exchange, the
last reported sale price or, in case no such sale takes place on such day, the
average of the highest reported bid and the lowest reported asked quotation for
such class or series of capital stock, in either case as reported on NASDAQ or a
similar service if NASDAQ is no longer reporting such information.
"Common Stock" has the meaning specified in Section 4.1.
"Disqualified Holder" shall mean any holder of shares of capital stock
of the Corporation whose holding of such stock, either individually or when
taken together with the holding of shares of capital 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
or affiliates to conduct any portion of the business of the Corporation or any
of its subsidiaries or affiliates.
"Dividend Payment Date" shall mean the last day of each March, June,
September and December, except that if any Dividend Payment Date is not a
Business Day, then the next succeeding Business Day shall be the Dividend
Payment Date.
"Fully Diluted Basis" shall mean, with respect to the outstanding
shares of Common Stock, the number of shares of Common Stock outstanding
assuming the conversion of all outstanding convertible securities (other than
the Series A Preferred Stock and Series B Preferred Stock) and the exercise of
all outstanding warrants, options or other rights to subscribe for or purchase
any shares of Common Stock.
"Initial Holder" means AT&T Wireless PCS, LLC, a Delaware limited
liability company and/or any of their respective Affiliates that is a Subsidiary
of AT&T Corp.
"Invested Amount" means, as of any date with respect to each share of
Series C Preferred Stock held by any stockholder, an amount equal to the
quotient of (i) the aggregate paid-in capital actually paid with respect to all
shares of Series C Preferred Stock held by such stockholder as of such date, or
any Predecessor Stock exchanged therefor, divided by (ii) the total number of
shares of Series C Preferred Stock held by such stockholder.
"Junior Stock" shall mean, with respect to shares of Series A
Preferred Stock, Series B Preferred Stock, Series H Preferred Stock or Series I
Preferred Stock, any capital stock of the Corporation, including without
limitation the Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock, Series G Preferred Stock and the
Common Stock, ranking junior to the Series A Preferred Stock, Series B Preferred
Stock, Series H Preferred Stock or Series I Preferred Stock, as the case may be,
with respect to dividends, distribution in liquidation or any other preference,
right or power.
"Liquidation Preference" shall mean, as of any date, and subject to
adjustment for subdivisions or combinations affecting the number of shares of
the applicable series of Preferred Stock:
(i) with respect to each share of Series A Preferred Stock and Series
B Preferred Stock, $1,000 plus accrued and unpaid dividends thereon, and,
with respect to shares of Series A Preferred Stock and Series B Preferred
Stock received in exchange for any Predecessor Stock, $1,000 plus accrued
and unpaid dividends from the date when such Predecessor Stock was issued.
(ii) with respect to each share of Series C Preferred Stock, the
Invested Amount plus accrued and unpaid dividends on such share (if any),
plus an amount equal to interest on the Invested Amount at the rate of six
percent (6%) per annum, compounded quarterly, less the amount of dividends
(if any) theretofore declared and paid in respect of such share;
(iii) with respect to each share of Series D Preferred Stock, $1,000
plus accrued and unpaid dividends thereon (if any), plus an amount equal to
interest on $1,000 at the rate of six percent (6%) per annum, compounded
quarterly, from the date of issuance of such share and, with respect to
shares of Series D Preferred Stock received in exchange for any Predecessor
Stock, the date when such Predecessor Stock was issued, to and including
the date of the calculation, less the amount of dividends (if any)
theretofore declared and paid in respect of such share;
(iv) with respect to each share of Series E Preferred Stock, accrued
and unpaid dividends thereon (if any), plus an amount equal to interest on
$1,000 at the rate of six percent (6%) per annum, compounded quarterly,
from the date of issuance of such share and, with respect to shares of
Series E Preferred Stock received in exchange for any Predecessor Stock,
the date when such Predecessor Stock was issued, to and including the date
of the calculation, less the amount of dividends (if any) theretofore
declared and paid in respect of such share;
(v) with respect to each share of Series F Preferred Stock, $.000032
plus accrued and unpaid dividends thereon;
(vi) with respect to each share of Series G Preferred Stock, $1,000
plus declared but unpaid dividends thereon (if any), plus an amount equal
to interest on $1,000 at the rate of six and one-half percent (6.5%) per
annum, compounded quarterly, from the date of issuance of such share, with
respect to shares of Series G Preferred Stock received in exchange for any
Predecessor Stock, the date when such Predecessor Stock was issued, to and
including the date of calculation; and
(vii) with respect to each share of Series H Preferred Stock, $1,000
plus accrued and unpaid dividends thereon.
(viii) with respect to each share of Series I Preferred Stock, $1,000
plus accrued and unpaid dividends thereon.
"Market Price" shall mean, with respect to each share of any class or
series of capital stock for any day, (i) the average of the daily Closing Prices
for the ten consecutive trading days commencing 15 days before the day in
question or (ii) if on such date the shares of such class or series of capital
stock are not listed or admitted for trading on any national securities exchange
and are not quoted on NASDAQ or any similar service, the cash amount that a
willing buyer would pay a willing seller (neither acting under compulsion) in an
arm's-length transaction without time constraints per share of such class or
series of capital stock as of such date, viewing the Corporation on a going
concern basis, as determined (A) in the case of a determination of "Market
Price" for the purpose of calculating the Series A Conversion Rate or Series B
Conversion Rate, as the case may be, pursuant to the Appraisal Procedure and (B)
in the case of a determination of Market Price for any other purpose, in good
faith by the Board of Directors, whose determination shall be conclusive;
provided that, in determining such cash amount, the following shall be ignored:
(i) any contract or legal limitation in respect of shares of Common Stock or
Preferred Stock, including transfer, voting and other rights, (ii) the "minority
interest" or "control" status of shares of Common Stock into which shares of
Series A Preferred Stock or Series B Preferred Stock, as the case may be, would
be converted, and (iii) any illiquidity arising by contract in respect of the
shares of Common Stock and any voting rights or control rights amongst the
stockholders.
"NASDAQ" shall mean the National Association of Securities Dealers
Automated Quotations System.
"Non-Tracked Common Stock" has the meaning specified in Section
4.12(a).
"Non-Tracked Business Available Dividend Amount" has the meaning
specified in Section 4.12(b)(i).
"Optional Conversion Date" has the meaning specified in 4.8(e)(ii).
"Parity Stock" shall mean, with respect to shares of Series A
Preferred Stock, Series B Preferred Stock, Series H Preferred Stock or Series I
Preferred Stock, any capital stock of the Corporation ranking on a parity with
the Series A Preferred Stock, Series B Preferred Stock, Series H Preferred
Stock, or Series I Preferred Stock, as the case may be, with respect to
dividends, distribution in liquidation or any other preference, right or power.
"Participating Stock" shall mean, collectively, the Series F Preferred
Stock, the Series G Preferred Stock and the Non-Tracked Common Stock.
"Person" shall mean any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, governmental agency or political subdivision thereof or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Preferred Stock" has the meaning specified in Section 4.1.
"Predecessor Stock" shall mean any share of Class A Voting Common
Stock, Class B Non-Voting Common Stock, Class C Common Stock, Class D Common
Stock, Voting Preference Common Stock, Series A Convertible Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, or Series F Preferred Stock of TeleCorp PCS, Inc. or
any share of Class A Voting Common Stock, Class B Non-Voting Common Stock, Class
C Common Stock, Class D Common Stock, Voting Preference Stock, Series A
Convertible Preferred Stock, Series B Preferred Stock, Series C Convertible
Preferred Stock and Series D Preferred Stock of Tritel, Inc.
"Qualified Transfer" shall mean a sale, transfer or other disposition
of shares of Series A Preferred Stock or Series B Preferred Stock to any
prospective transferee specified in a Qualified Transfer Notice, other than a
prospective transferee as to which the Corporation disapproves in accordance
with the terms of the second sentence of Section 4.3(j), provided such sale,
transfer or other disposition is made pursuant to a binding agreement entered
into no later than 180 days after the applicable Qualified Transfer Notice is
given.
"Qualified Transferee" shall mean, with respect to any shares of
Series A Preferred Stock or Series B Preferred Stock, (i) any Cash Equity
Investor that acquired such shares pursuant to Section 4.2 of the Stockholders
Agreement or (ii) any other holder that acquired such shares in a Qualified
Transfer from an Initial Holders or Qualified Transferee.
"Qualified Transfer Notice" has the meaning specified in Section
4.3(i)(x).
"Redemption Securities" shall mean any debt or equity securities of
the Corporation, any of its subsidiaries or affiliates or any other corporation,
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 payable pursuant to Section 4.15, in the opinion
of any nationally recognized investment banking firm selected by the Board of
Directors (which may be a firm which provides investment banking, brokerage or
other services to the Corporation), has a value, at the time notice of
redemption is given pursuant to Section 4.15(d) at least equal to the price
required to be paid pursuant to Section 4.15(a) (assuming, in the case of
Redemption Securities to be publicly traded, that such Redemption Securities
were fully distributed and subject only to normal trading activity).
"Section 4.15 Transferee" shall mean any transferee of shares of (i)
Series A Convertible Preferred Stock, Series D Preferred Stock and Series F
Preferred Stock of TeleCorp PCS, Inc. issued to the Initial Holder on July 17,
1998 or any capital stock of Holding Company exchanged therefor (or any shares
of Common Stock into which any such shares are converted) or (ii) Series A
Convertible Preferred Stock or Series D Convertible Preferred Stock of Tritel,
Inc. issued to an Initial Holder on January 7, 1999 or any capital stock of
Holding Company exchanged therefor (or any shares of Common Stock into which any
such shares are converted) that are acquired in a private transaction.
"Section 4.15 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 Section 4.15.
"Senior Stock" shall mean, with respect to shares of Series A
Preferred Stock, Series B Preferred Stock, Series H Preferred Stock or Series I
Preferred Stock, as the case may be, any capital stock of the Corporation
ranking senior to the Series A Preferred Stock, Series B Preferred Stock, Series
H Preferred Stock or Series I Preferred Stock, as the case may be, with respect
to dividends, distribution in liquidation or any other preference, right or
power.
"Series A Conversion Date" has the meaning specified in Section
4.3(i)(iv).
"Series A Conversion Rate" shall mean, as of any date of
determination, a fraction in which the numerator is the Liquidation Preference
of one share of Series A Preferred Stock as of such date, and the denominator is
the Market Price of Class A Common Stock as of such date.
"Series A Preferred Stock" has the meaning specified in Section 4.1.
"Series A Redemption Price" has the meaning specified in Section
4.3(e)(i).
"Series B Conversion Rate" shall mean, as of any date of
determination, a fraction in which the numerator is the Liquidation Preference
of one share of Series B Preferred Stock as of such date, and the denominator is
the Market Price of Class A Common Stock as of such date.
"Series B Redemption Price" the Liquidation Preference of the Series B
Preferred Stock as of any applicable redemption date.
"Series B Preferred Stock" has the meaning specified in Section 4.1.
"Series C Preferred Stock" has the meaning specified in Section 4.1.
"Series C Redemption Price" has the meaning specified in 4.5(e)(i).
"Series D Preferred Stock" has the meaning specified in Section 4.1.
"Series D Redemption Price" has the meaning specified in Section
4.5(e)(i).
"Series E Preferred Stock" has the meaning specified in Section 4.1.
"Series F Preferred Stock" has the meaning specified in Section 4.1.
"Series G Preferred Stock" has the meaning specified in Section 4.1.
"Series H Preferred Stock" has the meaning specified in Section 4.1.
"Series I Preferred Stock" has the meaning specified in Section 4.1.
"Statutory Liquidation" means the liquidation of the Corporation
pursuant to Section 275 of the GCL, as amended.
"Stockholders Agreement" means the Stockholders Agreement by and among
the Corporation, and the other stockholders of the Corporation named therein,
dated as of November 13, 2000, as the same may be amended, modified or
supplemented in accordance with the terms thereof, a copy of which is available
for inspection by any stockholder at the principal executive offices of the
Corporation.
"Subsidiary" shall mean, with respect to any Person, a corporation or
other entity of which 50% or more of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
"TeleCorp Common Stock" shall mean the Class A Voting Common Stock,
$.01 par value per share, the Class B Non-Voting Common Stock, $.01 par value
per share, the Class C Common Stock, $.01 par value per share, and the Class D
Common Stock, $.01 par value per share, and the Voting Preference Common Stock,
$.01 par value per share, of TeleCorp PCS, Inc.
"TeleCorp Exchange Shares" shall have the meaning set forth in Section
4.14(a)(ii).
"Tritel Exchange Shares" shall have the meaning set forth in Section
4.14(a)(iv).
"TeleCorp Holding" shall mean TeleCorp Holding Corp., Inc., a Delaware
corporation, or any successor thereto.
"TeleCorp Original Shares" shall mean (i) the TeleCorp Common Stock
held by the Initial Holders and TWR Cellular, Inc. on July 17, 1998, (ii) the
Series D Preferred Stock, $.01 par value per share, of TeleCorp PCS, Inc. held
by the Initial Holders and TWR Cellular Inc. on July 17, 1998, or any TeleCorp
Common Stock into which such shares were converted and (iii) the Series F
Preferred Stock, $.01 par value per share, of TeleCorp PCS, Inc. held by the
Initial Holders and TWR Cellular Inc. on July 17, 1998, or any TeleCorp Common
Stock into which such shares were converted.
"TeleCorp Tracking Stock" shall have the meaning set forth in Section
4.12(b)(ii).
"TeleCorp Tracked Business Available Dividend Amount" shall mean, on
any date, the excess (if any) of (i) the fair market value of the total assets
of TeleCorp Holding (including, without limitation, investments held by TeleCorp
Holding), less the total amount of the liabilities of TeleCorp Holding, in each
case as of such date determined in accordance with generally accepted accounting
principles, over (ii) the aggregate par value of, or any greater amount
determined in accordance with GCL to be capital in respect of, all outstanding
shares of the TeleCorp Tracking Stock.
"TeleCorp Tracked Business Available Liquidation Amount" shall mean,
on any date, the fair market value of the total assets of TeleCorp Holding
(including, without limitation, investments held by TeleCorp Holding, less the
total amount of the liabilities of TeleCorp Holding, in each case as of such
date determined in accordance with generally accepted accounting principles.
"Tracked Business Available Dividend Amount" shall mean the aggregate
of the TeleCorp Tracked Business Available Dividend Amount plus the Tritel
Tracked Business Available Dividend Amount.
"Tracked Common Stock" has the meaning specified in Section 4.12(a).
"Tritel Common Stock" shall mean the Class A Voting Common Stock, $.01
par value per share, the Class B Non-Voting Common Stock, $.01 par value per
share, the Class C Common Stock, $.01 par value per share, and the Class D
Common Stock, $.01 par value per share, and the Voting Preference Common Stock,
$.01 par value per share, of Tritel PCS, Inc.
"Tritel Holding" shall mean Tritel C/F Holding Corp., a Delaware
corporation, or any successor thereto.
"Tritel Original Shares" shall mean the Series D Preferred Stock, $.01
par value, of Tritel PCS, Inc. owned by the Initial Holders and TWR Cellular
Inc. on January 7, 1999, or any shares of Tritel Series C Preferred Stock or
Tritel Common Stock into which such shares or any shares of Tritel Series A
Preferred Stock or Tritel Series C Preferred Stock were converted.
"Tritel Series A Preferred Stock" shall mean the Series A Convertible
Preferred Stock, $.01 par value, of Tritel PCS, Inc.
"Tritel Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock, $.01 par value, of Tritel PCS, Inc.
"Tritel Tracking Stock" shall have the meaning set forth in Section
4.12(b)(iii).
"Tritel Tracked Business Available Dividend Amount" shall mean, on any
date, the excess (if any) of (i) the fair market value of the total assets of
Tritel Holding (including, without limitation, investments held by Tritel
Holding), less the total amount of the liabilities of Tritel Holding, in each
case as of such date determined in accordance with generally accepted accounting
principles, over (ii) the aggregate par value of, or any greater amount
determined in accordance with GCL to be capital in respect of, all outstanding
shares of the Tritel Tracking Stock.
"Tritel Tracked Business Available Liquidation Amount" shall mean, on
any date, the fair market value of the total assets of Tritel Holding
(including, without limitation, investments held by Tritel Holding, less the
total amount of the liabilities of Tritel Holding, in each case as of such date
determined in accordance with generally accepted accounting principles.
ARTICLE V
Election of Directors need not be by written ballot.
ARTICLE VI
6.1 Amendment of Amended and Restated Certificate of Incorporation.
Subject to the separate class vote requirements relating to any class or series
of Preferred Stock, the holders of shares of capital stock representing at least
two-thirds (2/3) of the votes entitled to be cast for the election of directors
of the Corporation, voting together as a single class, in person or by proxy, at
a special or annual meeting of stockholders called for the purpose, or by
written consent, may amend, alter or repeal this Amended and Restated
Certificate of Incorporation.
6.2 Amendment of the Bylaws. Except as otherwise provided by law or by
this Amended and Restated Certificate of Incorporation, the Bylaws of the
Corporation, as from time to time altered or amended, may be made, altered or
amended by the holders of shares of capital stock representing at least
two-thirds (2/3) of the votes entitled to be cast for the election of directors
of the Corporation, voting together as a single class, in person or by proxy at
any annual or special meeting of the stockholders called for such purpose, of
which the notice shall specify the subject matter of the proposed alteration or
amendment or new bylaw or the article or articles to be affected thereby, or by
written consent of such holders having such requisite number of votes. The
Bylaws may also be made, altered or amended by a majority of the whole number of
directors then in office. Notwithstanding anything to the contrary contained in
this Section 6.2, the rights of any Stockholder (as such term is defined in the
Stockholders Agreement) or group of Stockholders under Section 2.11(b) of the
Bylaws shall not be amended, altered or repealed without the prior written
approval of any such Stockholder or group of Stockholders, as the case may be.
ARTICLE VII
7.1 Indemnification. Any person who was or is a party or is threatened
to be made a party to any threatened, pending, or completed action, suit, or
proceeding (a "Proceeding"), whether civil, criminal, administrative, or
investigative (whether or not by or in the right of the Corporation), by reason
of the fact that such person, or a person of whom such person is the legal
representative, is or was a director, officer, incorporator, employee, or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, incorporator, employee, partner, trustee, or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise (an "Other Entity"), shall be entitled to be indemnified by the
Corporation to the full extent then permitted by law against expenses (including
counsel fees and disbursements), judgments, fines (including excise taxes
assessed on a person with respect to an employee benefit plan), and amounts paid
in settlement incurred by him in connection with such Proceeding. Persons who
are not Directors or officers of the Corporation may be similarly indemnified in
respect of service to the Corporation or to an Other Entity at the request of
the Corporation to the extent the Board of Directors at any time specifies that
such persons are entitled to the benefits of this Article VII.
7.2 Advancement of Expenses. The Corporation shall, from time to time,
reimburse or advance to any Director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses, including
attorneys' fees and disbursements, incurred in connection with any Proceeding,
in advance of the final disposition of such Proceeding; provided, however, that,
if (and only if) required by the GCL, such expenses incurred by or on behalf of
any Director or officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such Director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
7.3 Rights Not Exclusive. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article VII shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, this Amended and Restated
Certificate of Incorporation, the Bylaws, any agreement, any 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.
7.4 Continuing Rights. The rights to indemnification and reimbursement
or advancement of expenses provided by, or granted pursuant to, this Article VII
shall continue as to a person who has ceased to be a Director or officer (or
other person indemnified hereunder), shall inure to the benefit of the
executors, administrators, legatees and distributees of such person, and in
either case, shall inure whether or not the claim asserted is based on matters
which antedate the adoption of this Article VII.
7.5 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 or agent of an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article VII, the Bylaws or under Section
145 of the GCL or any other provision of law.
7.6 Contract Rights; No Repeal. The provisions of this Article VII
shall be a contract between the Corporation, on the one hand, and each Director
and officer who serves in such capacity at any time while this Article VII is in
effect and any other person indemnified hereunder, on the other hand, pursuant
to which the Corporation and each such Director, officer, or other person intend
to be legally bound. No repeal or modification of this Article VII shall affect
any rights or obligations with respect to any state of facts then or, heretofore
or thereafter brought or threatened based in whole or in part upon any such
state of facts.
7.7 Enforceability; Burden of Proof. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article VII shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) to have made a
determination prior to the commencement of such action that such indemnification
or reimbursement or advancement of expenses is proper in the circumstances nor
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel and its stockholders) that such person is not
entitled to such indemnification or reimbursement or advancement of expenses
shall constitute a defense to the action or create a presumption that such
person is not so entitled. Such a person shall also be indemnified for any
expenses incurred in connection with successfully establishing his or her right
to such indemnification or reimbursement or advancement of expenses, in whole or
in part, in any such Proceeding.
7.8 Service at the Request of the Corporation. Any Director or officer
of the Corporation serving in any capacity in (a) another corporation of which a
majority of the shares entitled to vote in the election of its directors is
held, directly or indirectly, by the Corporation or (b) any employee benefit
plan of the Corporation or any corporation referred to in clause (a) shall be
deemed to be doing so at the request of the Corporation.
7.9 Right to Be Covered by Applicable Law. Any person entitled to be
indemnified or to reimbursement or advancement of expenses as a matter of right
pursuant to this Article VII may elect to have the right to indemnification or
reimbursement or advancement of expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events
giving rise to the applicable Proceeding, to the extent permitted by law, or on
the basis of the applicable law in effect at the time such indemnification or
reimbursement or advancement of expenses is sought. Such election shall be made,
by a notice in writing to the Corporation, at the time indemnification or
reimbursement or advancement of expenses is sought; provided, however, that if
no such notice is given, the right to indemnification or reimbursement or
advancement of expenses shall be determined by the law in effect at the time
indemnification or reimbursement or advancement of expenses is sought.
7.10 Section 203 Election. The Corporation elects not to have Section
203 of the GCL govern the issuance of capital stock of the Corporation to (a)
AT&T Wireless or its Affiliates, (b) Gerald T. Vento or (c) Thomas H. Sullivan.
ARTICLE VIII
No Director of the Corporation shall be liable to the Corporation or
any of its stockholders for monetary damages for breach of fiduciary duty as a
Director, provided that this provision does not eliminate the liability of the
Director (i) for any breach of the 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 GCL or (iv) for any transaction from which the Director
derived an improper personal benefit. For purposes of the prior sentence, the
term "damages" shall, to the extent permitted by law, include without
limitation, any judgment, fine, amount paid in settlement, penalty, punitive
damages, excise or other tax assessed with respect to an employee benefit plan,
or expense of any nature (including, without limitation, counsel fees and
disbursements). Each person who serves as a Director of the Corporation while
this Article VIII is in effect shall be deemed to be doing so in reliance on the
provisions of this Article VIII, and neither the amendment or repeal of this
Article VIII, nor the adoption of any provision of this Amended and Restated
Certificate of Incorporation inconsistent with this Article VIII, shall apply to
or have any effect on the liability or alleged liability of any Director of the
Corporation for, arising out of, based upon, or in connection with any acts or
omissions of such Director occurring prior to such amendment, repeal, or
adoption of an inconsistent provision. The provisions of this Article VIII are
cumulative and shall be in addition to and independent of any and all other
limitations on or eliminations of the liabilities of Directors of the
Corporation, as such, whether such limitations or eliminations arise under or
are created by any law, rule, regulation, bylaw, agreement, vote of stockholders
or disinterested Directors, or otherwise.
ARTICLE IX
9.1 Number, Terms and Election of Directors.
(a) Subject to the rights, if any, of the holders of any class or
series of Preferred Stock to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be fixed and may
be increased or decreased from time to time by the Board of Directors, but in no
case shall the number be less than one nor more than fifteen.
(b) The directors, other than the directors designated by the holders
of the Voting Preference Common Stock pursuant to Section 3.1(e) of the
Stockholders' Agreement (the "Voting Preference Directors"), shall be divided
into three classes, as nearly equal in number as possible, by the affirmative
vote (which vote may be taken prior to such closing) of a majority of the
directors then holding office. One class of directors shall be appointed to the
Board of Directors for a term expiring at the first annual meeting of
stockholders to be held after the filing of this Amended and Restated
Certificate of Incorporation, another class of directors shall be appointed to
the Board of Directors for a term expiring at the second annual meeting of
stockholders to be held after the filing of this Amended and Restated
Certificate of Incorporation, and another class of directors shall be appointed
to the Board of Directors for a term expiring the third annual meeting of
stockholders to be held after the filing of this Amended and Restated
Certificate of Incorporation, with members of each class to hold office until
their successors are elected and qualified. At each succeeding annual meeting of
the stockholders of the Corporation, the successors of the class of directors
whose term expires at that meeting shall be elected by plurality vote of all
votes cast at such meeting to hold office for a term expiring at the annual
meeting of stockholders held in the third year following their year of election.
The Voting Preference Directors shall be elected to the Board of Directors for a
one year term expiring at each annual meeting.
9.2 Newly Created Directorships and Vacancies. Subject to the rights,
if any, of the holders of any and all series of Preferred Stock to elect
additional directors pursuant to the terms and conditions of such Preferred
Stock, newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the board of directors, or by a sole remaining
director. Any director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of directors in
which the new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of an incumbent director.
9.3 Removal. Subject to the rights, if any, of the holders of any and
all series of Preferred Stock to elect additional directors pursuant to the
terms and conditions of such Preferred Stock, any director may be removed from
office by the stockholders with or without cause in the following manner. At any
annual meeting or special meeting of the stockholders of the Corporation, the
notice of which shall state that the removal of a director or directors is among
the purposes of the meeting, the affirmative vote of the holders of at least a
majority of the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of the directors, voting together as a single
class, may remove such director or directors with or without cause.
9.4 Additional Rights of Certain Stockholders Regarding Directors.
Notwithstanding anything to the contrary contained in this Article IX, so long
as a Stockholder (as such term is defined in the Stockholders' Agreement) or
group of Stockholders has the right to nominate one or more of the directors of
the Corporation pursuant to the terms of the Stockholders' Agreement or this
Amended and Restated Certificate of Incorporation (including, without
limitation, the right of the Initial Holders to nominate a director pursuant to
Section 4.3(d)(iii) and Section 4.4 hereof), then, with respect to any directors
so nominated by such Stockholder or group of Stockholders, such Stockholder or
group of Stockholders, as the case may be, shall have the right to cause the
Corporation to remove any director so nominated by such Stockholder or group of
stockholders, as the case may be, with or without cause, and any vacancy caused
by the removal of such director or otherwise during the term of such director
(whether or not such director resigns, is removed from the Board of Directors
with or without cause or ceases to be a director by reason of death, disability
or for any other reason) shall be filled in accordance with the terms of the
Stockholders' Agreement or this Amended and Restated Certificate of
Incorporation, as the case may be.
<PAGE>
IN WITNESS WHEREOF, the undersigned officer of the Corporation has
executed this Amended and Restated Certificate of Incorporation this 31st day of
October, 2000.
/s/ Thomas H. Sullivan
---------------------------------------
Name: Thomas H. Sullivan
Title: Executive Vice President-Chief
Financial Officer
