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FORM OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ALAMOSA HOLDINGS, INC.
The undersigned certifies that he is the Chairman of the Board of Alamosa
Holdings, Inc., a corporation organized and existing under the laws of the State
of Delaware (the "CORPORATION"), and does hereby further certify as follows:
(1) The name of the corporation is Alamosa Holdings, Inc.
(2) The Corporation was originally incorporated under the same name. The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on July 7, 2000.
(3) As of the date hereof, the Corporation has not received any payment for
any of its stock.
(4) This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with the provisions of Sections 241 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL").
(5) Pursuant to Sections 241 and 245 of the DGCL, this Amended and Restated
Certificate of Incorporation restates and integrates previous provisions and
also amends certain provisions of the Corporation's Certificate of
Incorporation.
(6) This Amended and Restated Certificate of Incorporation of the
Corporation shall become effective immediately upon the filing thereof with the
Secretary of State of the State of Delaware (the "EFFECTIVE TIME").
(7) The text of the Certificate of Incorporation of the Corporation, as
amended hereby, is restated to read in its entirety as follows:
ARTICLE 1. Name. The name of the Corporation is Alamosa Holdings, Inc.
ARTICLE 2. Address. The address of its registered office in the state of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, Delaware 19801. The name of the registered agent of the Corporation
at such address is The Corporation Trust Company.
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ARTICLE 3. Purpose. The purpose for which the Corporation is organized is
to engage in any lawful act or activity for which a corporation may be organized
under the DGCL.
ARTICLE 4. Description and Authorization of Stock.
(a) Stock Authorization. The aggregate number of shares of capital
stock that the Corporation shall have the authority to issue is 300,000,000
shares, which shall consist of (i) 290,000,000 shares of Common Stock, par value
$0.01 per share (the "COMMON STOCK") and (ii) 10,000,000 shares of Preferred
Stock, $0.01 par value per share (the "PREFERRED STOCK").
(b) Common Stock.
(i) Voting Rights. The holders of Common Stock will be entitled to
one vote per share on all matters to be voted on by the stockholders of the
Corporation, including the election of directors. The holders of Common Stock
shall not have cumulative voting rights.
(ii) Dividends. Subject to the prior rights of any Preferred Stock
issued by the Corporation, as and if dividends are declared thereon by the Board
of Directors of the Corporation out of funds legally available therefor, whether
payable in cash, property or securities of the Corporation, the holders of
Common Stock will be entitled to share equally, on a share-for-share basis, in
all such dividends.
(iii) Liquidation. Upon any liquidation, dissolution or winding up
of the Corporation, after all amounts due and owing to the holders of any
Preferred Stock of the Corporation have been paid or the payment has been fully
provided for, the holders of Common Stock shall be entitled to receive all of
the remaining assets of the Corporation available for distribution to holders of
Common Stock and will be entitled to share equally, on a share-for-share basis,
in such distribution. Neither the merger or consolidation of the Corporation
with or into another corporation or corporations, nor the sale or transfer by
the Corporation of all or part of its assets, nor the reduction of its capital
stock, will be deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this paragraph.
(c) Preferred Stock.
(i) Issuance. The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the shares of
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof.
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(A) The number of authorized shares of Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the series of Preferred Stock.
(B) Except as otherwise required by law, holders of Common
Stock, as such, shall not be entitled to vote on any amendment to this Amended
and Restated Certificate of Incorporation (including a certificate establishing
a series of Preferred Stock) that alters or changes the powers, preferences,
rights or other terms of one or more outstanding series of Preferred Stock if
the holders of such affected series are entitled to vote, either separately or
together with the holders of one or more other such series, on such amendment
pursuant to this Amended and Restated Certificate of Incorporation (including a
certificate establishing a series of Preferred Stock) or pursuant to the DGCL.
(ii) Increases and Decreases in Series. The Board of Directors of
the Corporation may increase the number of shares (but not above the total
number of authorized shares of the class) of the Preferred Stock designated for
any existing series by a resolution adding to such series authorized and
unissued shares of the Preferred Stock not designated for any other series. The
Board of Directors of the Corporation may decrease the number of shares of the
Preferred Stock (but not below the number of shares thereof then outstanding)
designated for any existing series by a resolution, subtracting from such series
unissued shares of the Preferred Stock designated for such series, and the
shares so subtracted shall become authorized, unissued, and undesignated shares
of the Preferred Stock.
ARTICLE 5. Rights of Stockholders. No holder of shares of stock of the
Corporation shall have any preemptive or other similar right, except as such
rights are expressly provided by contract, or by resolution creating a series of
Preferred Stock, to purchase or subscribe for or receive any shares of any
class, or series thereof, of stock of the Corporation, whether now or hereafter
authorized, or any warrants, options, bonds, debentures or other securities
convertible into, exchangeable for or carrying any right to purchase any shares
of any class of stock, or series thereof; but such additional shares of stock
and such warrants, options, bonds, debentures or other securities convertible
into, exchangeable for or carrying any right to purchase any shares of any class
of stock, or series thereof, may be issued or disposed of by the Board of
Directors to such persons, and on such terms and for such lawful consideration,
as in its discretion it shall deem advisable or as to which the Corporation
shall have by binding contract agreed.
ARTICLE 6. Meetings of Stockholders. Effective upon the consumation of the
merger between a subsidiary of the Corporation and Alamosa PCS Holdings, Inc.,
pursuant to that certain Amended and Restated Agreement and Plan of
Reorganization, entered into as of December 14, 2000, as it may be amended, by
and among Alamosa PCS Holdings, Inc., Alamosa (Delaware), Inc., Alamosa
Holdings, Inc., and Alamosa Sub I, Inc. (the "COMMENCEMENT TIME"), any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting
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of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders. Special meetings of stockholders of the
Corporation may be called only by the Chairman of the Board, if there is one, by
the President, or by the Board of Directors pursuant to a resolution adopted by
a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time such
resolution is presented to the Board of Directors for adoption).
ARTICLE 7. Duration of Existence. The Corporation is to have perpetual
existence.
ARTICLE 8. Amendments to the Bylaws. In furtherance of, and not in
limitation of, the powers conferred by statute, the Board of Directors is
expressly authorized to adopt, amend or repeal the Bylaws of the Corporation or
adopt new Bylaws, without any action on the part of the stockholders; provided,
however, that, upon the Commencement Time, the adoption, amendment or repeal of
the Bylaws in a manner that would make them inconsistent with ARTICLE 4(c)
(Description and Authorization of Stock -- Preferred Stock), ARTICLE 6 (Meetings
of Stockholders), this ARTICLE 8 (Amendments to the Bylaws), ARTICLE 9 (Board of
Directors), ARTICLE 10 (Amendments to the Certificate) or ARTICLE 13 (Fair
Price), shall be made only by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of the Voting Stock (as defined
hereinafter), voting together as a single class. In the event that any term or
provision of the Bylaws is inconsistent, or conflicts, with the terms or
provisions of this Amended and Restated Certificate of Incorporation, this
Amended and Restated Certificate of Incorporation shall control.
ARTICLE 9. Board of Directors.
(a) Number. Except as otherwise fixed by the provisions of a resolution
adopted pursuant to ARTICLE 4(c) (Description and Authorization of Stock --
Preferred Stock) relating to the rights of the holders of the Preferred Stock to
elect additional directors under specified circumstances, the number of
directors which shall constitute the whole Board of Directors shall be not less
than three and shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in the previously
authorized directorships at the time any such resolution is presented to the
Board of Directors for adoption).
(b) Staggered Board of Directors. After the Commencement Time, the
directors shall be divided into three classes, designated Class I, Class II and
Class III (which at all times shall be as nearly equal in number as possible),
with the term of office of Class I directors to expire at the 2001 Annual
Meeting of Stockholders, the term of office of Class II directors to expire at
the 2002 Annual Meeting of Stockholders, and the term of office of Class III
directors to expire at the 2003 Annual Meeting of Stockholders, upon election
and qualification of their successors. At each annual meeting of stockholders
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following such initial classification and election, directors elected to succeed
those directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election, upon election and qualification of their successors.
(c) Removal of Directors. After the Commencement Time, subject to the
right of the holders of any class or series of Preferred Stock then outstanding,
any director, or the entire Board of Directors, may be removed from office at
any time, but only for cause and only by the affirmative vote of the holders of
at least eighty percent (80%) of the voting power of the Voting Stock, voting
together as a single class. Except as may otherwise be provided by law, cause
for removal shall exist only if the director whose removal is proposed:
(i) has been convicted of a felony by a court of competent
jurisdiction and such conviction is no longer subject to direct appeal;
(ii) has been adjudged by a court of competent jurisdiction to be
liable for gross negligence or misconduct in the performance of such director's
duties to the Corporation in a matter of substantial importance to the
Corporation, and such adjudication has become final and non-appealable; or
(iii) has missed six consecutive meetings of the Board of
Directors.
(d) Vacancies. Subject to the rights of the holders of any class or
series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies of the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other reason shall be
solely filled by a majority vote of the directors then in office, though less
than a quorum, or by a sole remaining director. Directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been elected expires, upon
election and qualification of their successors. No decrease in the number of
authorized directors constituting the entire Board of Directors shall shorten
the term of any incumbent director. Under no circumstances shall the
Corporation's stockholders fill any newly created directorships.
(e) Ballots, Cumulative Voting. Election of directors need not be by
written ballot unless the Bylaws shall so provide. No holders of shares of
capital stock of the Corporation shall have any rights to cumulate votes in the
election of directors.
(f) Preferred Stock, Directors. Notwithstanding the foregoing, whenever
the holders of Preferred Stock shall have the right to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies, and other features of such directorships shall be governed by the
terms of any resolution adopted pursuant to ARTICLE 4 (Description and
Authorization of Stock)
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of this Amended and Restated Certificate of Incorporation applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
ARTICLE 9 (Board of Directors) unless expressly provided by such terms.
ARTICLE 10. Amendments to the Certificate. The Corporation shall have the
right, subject to any express provisions or restrictions contained in this
Amended and Restated Certificate of Incorporation of the Corporation, from time
to time, to amend this Amended and Restated Certificate of Incorporation or any
provision thereof in any manner now or hereafter provided by law.
Notwithstanding the foregoing or any other provisions of this Amended and
Restated Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any vote required
by law or this Amended and Restated Certificate of Incorporation, after the
Commencement Time, the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of the Voting Stock, voting together as a
single class, shall be required to adopt any provision inconsistent with, or to
amend or repeal ARTICLE 4(c) (Description and Authorization of Stock --
Preferred Stock), ARTICLE 6 (Meetings of Stockholders), ARTICLE 8 (Amendments to
the Bylaws), ARTICLE 9 (Board of Directors), this ARTICLE 10 (Amendments to the
Certificate) or ARTICLE 13 (Fair Price). The Corporation reserves the right to
amend, alter, change or repeal any provision contained in this Amended and
Restated Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE 11. Indemnification.
(a) The Corporation shall indemnify any person who was, is or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of any
foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exists or may hereafter be
amended. Notwithstanding the foregoing, except as provided in (c) below, the
Corporation shall indemnify any such person in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation.
(b) Such rights shall be contract rights and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
the director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this ARTICLE 11 (Indemnification)
is in effect. Any repeal or amendment of this ARTICLE 11 (Indemnification) shall
be prospective only and shall not limit the rights of any such director or
officer or the obligations of the Corporation with respect to any claim arising
from or related to the services of such director or officer in any of the
foregoing capacities prior to any such repeal or amendment to this ARTICLE 11
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(Indemnification). Such right shall include the right to be paid by the
Corporation expenses incurred in defending any such proceeding in advance of its
final disposition to the maximum extent permitted under the DGCL.
(c) If a claim for indemnification or advancement of expenses hereunder
is not paid in full by the Corporation within sixty (60) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim, and if successful in whole or in part, the claimant shall also be
entitled to be paid the expenses of prosecuting such claim. It shall be a
defense to any such action that such indemnification or advancement of costs of
defense are not permitted under the DGCL, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
the Board of Directors or any Committee thereof, independent legal counsel, or
stockholders) to have made its determination prior to the commencement of such
action that indemnification of, or advancement of costs of defense to, the
claimant, is permissible in the circumstances nor an actual determination by the
Corporation (including the Board of Directors or any Committee thereof,
independent legal counsel, or stockholders) that such indemnification or
advancement is not permissible shall be a defense to the action or create a
presumption that such indemnification by the Corporation is not permissible.
(d) In the event of the death of any person having rights of
indemnification under the foregoing provisions, such rights shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, bylaw,
resolution of stockholders or directors, agreement or otherwise. The Corporation
may additionally indemnify any employee or agent of the Corporation to the
fullest extent permitted by law.
(e) As used herein, the term "PROCEEDING" means any threatened pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an action,
suit, or proceeding, and any inquiry or investigation that could lead to such an
action, suit, or proceeding.
ARTICLE 12. Limitation on Liability. No director of the Corporation shall
be liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL hereafter is amended to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the Corporation,
in addition to the limitation on personal liability provided herein, shall be
limited to the fullest extent permitted by the amended DGCL. Any repeal or
modification of this ARTICLE 12 (Limitation on Liability) by the stockholders of
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the Corporation shall be prospective only and shall not adversely affect any
limitation of the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
ARTICLE 13. Fair Price.
(a) Special Vote Required For Certain Business Combinations. In
addition to any affirmative vote required by law or this Amended and Restated
Certificate of Incorporation or the Bylaws of the Corporation, and except as
otherwise expressly provided in Section (b) of this ARTICLE 13 (Fair Price --
When Special Vote Not Required), a Business Combination (as hereinafter defined)
with, or proposed by or on behalf of any Interested Stockholder (as hereinafter
defined) or any Affiliate or Associate (as hereinafter defined) of any
Interested Stockholder or any person who after such Business Combination would
be an Affiliate or Associate of such Interested Stockholder shall require the
affirmative vote of the holders of not less than eighty percent (80%) of the
voting power of the Voting Stock, voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage or separate class vote may be specified,
by law, by any other provision of this Amended and Restated Certificate of
Incorporation or the Bylaws of the Corporation, by any agreement with any
national securities exchange or otherwise.
(b) When Special Vote Not Required. The provisions of Section (a) of
this ARTICLE 13 (Fair Price -- Special Vote Required for Certain Business
Combinations) shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote, if any,
as is required by law, by any other provision of this Amended and Restated
Certificate of Incorporation or the Bylaws of the Corporation, by any agreement
with any national securities exchange or otherwise if, in the case of a Business
Combination involving the receipt of consideration by the holders of the
Corporation's outstanding Capital Stock (as hereinafter defined), the condition
specified in paragraph (i) below is met or all of the conditions specified in
paragraph (ii) below are met or if, in the case of a Business Combination not
involving the receipt of consideration by the holders of the Corporation's
outstanding Capital Stock, the condition specified in paragraph (i) below is
met:
(i) Approval by Disinterested Directors. The Business Combination
(either specifically or as a transaction which is within an approved category of
transactions) shall have been approved by a majority of the Disinterested
Directors (as hereinafter defined) prior to the stockholder becoming an
Interested Stockholder, it being understood that this condition shall not be
capable of satisfaction unless there are at least three Disinterested Directors.
(ii) Minimum Price, Form of Consideration and Other Requirements.
All of the following conditions shall have been met:
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(A) Minimum Price Requirements. With respect to every class
or series of outstanding Capital Stock of the Corporation, whether or not the
Interested Stockholder has previously acquired beneficial ownership of any
shares of such class or series of Capital Stock:
(1) The aggregate amount of cash plus the Fair Market
Value (as hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at least equal
to the higher of the amounts determined pursuant to clauses (aa) and (bb) below:
(aa) the highest per-share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Stockholder for any share of Common Stock in
connection with the acquisition by the Interested Stockholder of beneficial
ownership of shares of Common Stock (x) within the two (2)-year period
immediately prior to the Announcement Date (as hereinafter defined) or (y) in
the transaction or series of related transactions in which it became an
Interested Stockholder, whichever is higher, in either case as adjusted for any
subsequent stock split, stock dividend, subdivision or reclassification with
respect to Common Stock; and
(bb) the Fair Market Value per share of Common
Stock (x) on the Announcement Date or (y) on the Determination Date (as
hereinafter defined), whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with respect to Common
Stock.
(2) The aggregate amount of cash plus the Fair Market
Value, as of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of shares of
any class or series of outstanding Capital Stock, other than Common, shall be at
least equal to the highest of the amounts determined pursuant to clauses (aa),
(bb) and (cc) below:
(aa) the highest per-share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Stockholder for any share of such class or series of
Capital Stock in connection with the acquisition by the Interested Stockholder
of beneficial ownership of shares of such class or series of Capital Stock (x)
within the two (2)-year period immediately prior to the Announcement Date or (y)
in the transaction or series of related transactions in which it became an
Interested Stockholder, whichever is higher, in either case as adjusted for any
subsequent stock split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock;
(bb) the Fair Market Value per share of such class
or series of Capital Stock (x) on the Announcement Date or (y) on the
Determination Date, whichever is
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higher, as adjusted for any subsequent stock split, stock dividend, subdivision
or reclassification with respect to such class or series of Capital Stock; and
(cc) the highest preferential amount per share, if
any, to which the holders of shares of such class or series of Capital Stock
would be entitled to in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation regardless of
whether the Business Combination to be consummated constitutes such an event.
(B) Form of Consideration and Other Requirements.
(1) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be in cash or in
the same form as previously has been paid by or on behalf of the Interested
Stockholder in connection with its direct or indirect acquisition of beneficial
ownership of shares of such class or series of Capital Stock. If the
consideration so paid for shares of any class or series of Capital Stock varies
as to form, the form of consideration of such class or series of Capital Stock
shall be in cash or the form paid by or on behalf of the Interested Stockholder
in connection with its direct or indirect acquisition of beneficial ownership of
the largest number of shares of such class or series of Capital Stock.
(2) After the Determination Date and prior to the
consummation of such Business Combination:
(aa) there shall have been no failure to declare
and pay at the regular date therefor any full regular dividends (whether or not
cumulative) payable in accordance with the terms of any outstanding Capital
Stock, other than the Common Stock, except as approved by a majority of the
Disinterested Directors;
(bb) there shall have been no reduction in the
amount, or change in the frequency of payment, of any dividends regularly paid
on the Common Stock (except as necessary to reflect any stock split, stock
dividend, subdivision or reclassification of the Common Stock), except as
approved by a majority of the Disinterested Directors; and
(cc) there shall have been an increase in the
amount of any dividends regularly paid on the Common Stock as necessary to
reflect any reverse stock split or reclassification of the Common Stock, or any
split, recapitalization, reorganization or any similar transaction that has the
effect of reducing the number of outstanding shares of Common Stock, unless the
failure so to increase the amount of such dividends is approved by a majority of
the Disinterested Directors.
(3) Such Interested Stockholder shall not have become
the beneficial owner of any additional shares of Capital Stock except as part of
or otherwise in connection with
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the transaction or series of related transactions that resulted in such
Interested Stockholder becoming an Interested Stockholder.
(4) After the Determination Date and prior to the
consummation of such Business Combination, such Interested Stockholder shall not
have received the benefit, directly or indirectly (except proportionately as a
stockholder of the Corporation), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax advantages provided
by the Corporation, whether in anticipation of or in connection with such
Business Combination or otherwise.
(5) After the Determination Date and prior to the
consummation of such Business Combination, such Interested Stockholder shall not
have made any major change in the Corporation's business or capital structure
without the approval of a majority of the Disinterested Directors.
(6) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended (the "1934 ACT"), shall be mailed to
all stockholders of the Corporation at least thirty (30) days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to the 1934 Act). Such
proxy or information statement shall contain, in a prominent place, any
statement as to the advisability (or inadvisability) of the Business Combination
that the Disinterested Directors, or any of them, may choose to make and, if
deemed advisable by a majority of the Disinterested Directors, the opinion of an
investment banking firm selected by a majority of the Disinterested Directors as
to the fairness (or not) of the terms of the Business Combination from a
financial point of view to the holders of the outstanding shares of Capital
Stock other than the Interested Stockholder and its Affiliates or Associates,
such investment banking firm to be paid a reasonable fee for its services by the
Corporation.
(c) Certain Definitions. The following definitions shall apply with
respect to this ARTICLE 13 (Fair Price):
(i) The term "BUSINESS COMBINATION" shall mean:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (1) any Interested Stockholder or (2)
any other company (whether or not itself an Interested Stockholder) that is or
after such merger or consolidation would be an Affiliate or Associate of an
Interested Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition, or any security arrangement, investment, loan, advance,
guarantee, agreement to purchase,
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agreement to pay, extension of credit, joint venture participation or other
arrangement, in one transaction or in a series of transactions, with or for the
benefit of any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder involving any assets, cash flow, earning power,
securities or commitments of the Corporation, any Subsidiary, any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder that,
together with all other such arrangements, has an aggregate Fair Market Value or
involves aggregate commitments equal to ten percent (10%) or more of the assets,
cash flow or earning power (in the case of transactions involving assets or
commitments other than capital stock) or ten percent (10%) or more of the
stockholders' equity (in the case of transactions in capital stock) of the
entity in question (the "SUBSTANTIAL PART"), as reflected in the most recent
fiscal year-end consolidated balance sheet of such entity existing at the time
the stockholders of the Corporation would be required to approve or authorize
the Business Combination involving the assets, cash flow, earning power,
securities or commitments constituting any Substantial Part; or
(C) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation; or
(D) any issuance or reclassification of securities
(including any stock dividend, split or reverse split or any other distribution
of securities in respect of stock), any recapitalization of the Corporation, any
merger or consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of increasing the
proportionate share of any class or series of Capital Stock, or any securities
convertible into or rights, options or warrants to acquire Capital Stock, or
equity securities of any Subsidiary, that is beneficially owned by any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
(E) any agreement, arrangement or other understanding
providing for any one or more of the actions specified in the foregoing clauses
(A) to (D);
Notwithstanding any of the foregoing, the transactions between the
Corporation and Alamosa PCS Holdings, Inc., Washington Oregon Wireless, L.L.C.,
or Roberts Wireless Communications, L.L.C., provided for in those certain
agreements entitled, (1) Amended and Restated Agreement and Plan of
Reorganization, entered into as of December 14, 2000, by and among Alamosa PCS
Holdings, Inc., Alamosa (Delaware), Inc., Alamosa Holdings, Inc., and Alamosa
Sub I, Inc.; (2) Amended and Restated Agreement and Plan of Reorganization,
entered into as of July 31, 2000, by and among Alamosa PCS Holdings, Inc.,
Alamosa Holdings, Inc., Alamosa Sub I, Inc., and Washington Oregon Wireless,
LLC, certain members of Washington Oregon Wireless, LLC, and WOW Holdings, LLC;
and (3) Amended and Restated Agreement and Plan of Reorganization, entered into
as of July 31, 2000, by and among Alamosa PCS Holdings, Inc., Alamosa Holdings,
Inc., Alamosa Sub I, Inc., and Roberts Wireless Communications, L.L.C., and the
members of Roberts Wireless Communications, L.L.C., respectively, shall not be
deemed to be Business Combinations.
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(ii) The term "CAPITAL STOCK" shall mean the capital stock of the
Corporation authorized to be issued from time to time under ARTICLE 4
(Description and Authorization of Stock), and the term "VOTING STOCK" shall mean
all issued and outstanding shares of Capital Stock entitled to vote generally in
the election of directors or that otherwise are entitled to vote with such stock
on the specific matter in question.
(iii) The term "PERSON" shall mean any individual, firm, company or
other entity and shall include any group composed of any person and any other
person with whom such person or any Affiliate or Associate of such person has
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital Stock.
(iv) The term "INTERESTED STOCKHOLDER" shall mean any person (other
than the Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the Corporation or
any Subsidiary or any trustee of or fiduciary with respect to any such plan when
acting in such capacity) who or which:
(A) is the beneficial owner, directly or indirectly, of Voting
Stock representing 20% or more of the voting power of all Voting Stock;
provided, however, for purposes of this ARTICLE 13(c)(iv), that no person shall
be deemed an Interested Stockholder prior to the Commencement Time and that if
any of the Caroline Hunt Trust Estate, South Plains Advanced Communications &
Electronics, Inc., West Texas PCS, LLC, Taylor Telecommunications, Inc., Tregan
International Corp., Plateau Telecommunications, Incorporated, XIT
Telecommunication & Technology, Inc., LEC Development, Inc., Wes-Tex
Telecommunications, Inc., and Longmont PCS, L.L.C., is a party to an agreement
that governs the voting of shares of Common Stock, which agreement (x) has been
approved by the Board of Directors prior to the time it was entered into by such
parties, (y) does not govern the voting of Common Stock with respect to matters
other than the election of members of the Board of Directors and (z) does not
govern the voting of Common Stock held by persons other than those entities
named above in this proviso, then for purposes of this ARTICLE 13(c)(iv), such
voting agreement shall not cause any such Person (or any of such Person's
Affiliates or Associates) or all of such Persons acting together to be the
"beneficial owner" of, or to "beneficially own," any securities owned by any
other entity named above in this proviso that are subject to such voting
agreement; or
(B) is an Affiliate or Associate of the Corporation and at any time
within the two (2)-year period immediately prior to the date in question (the
"LOOK-BACK PERIOD") was the beneficial owner, directly or indirectly, of Voting
Stock representing 20% or more of the voting power of all Voting Stock;
provided, however, the Look-Back Period shall not include any period prior to
the Commencement Time; or
(C) is an assignee of or has otherwise succeeded to any shares of
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Voting Stock which were at any time within the Look-Back Period beneficially
owned by an Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933, as amended;
provided, however, the Look-Back Period shall not include any period prior to
the Commencement Time.
(v) A person shall be a "BENEFICIAL OWNER" of, shall "BENEFICIALLY OWN"
and shall have "BENEFICIAL OWNERSHIP" of any Capital Stock (1) that such person
or any of its Affiliates or Associates owns, directly or indirectly; (2) that
such person or any of its Affiliates or Associates has, directly or indirectly,
(x) the right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (y) the right to vote pursuant to any
agreement, arrangement or understanding; or (3) which is beneficially owned,
directly or indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of Capital
Stock. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph (iv) above, the number of shares of Capital
Stock deemed to be outstanding shall include shares deemed beneficially owned by
such person through application of this paragraph (v), but shall not include any
other shares of Capital Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(vi) The terms "AFFILIATE" and "ASSOCIATE" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the 1934 Act in effect on the date that this ARTICLE 13 (Fair
Price) is approved by the Board of Directors of the Corporation (the term
"REGISTRANT" in Rule 12b-2 meaning in this case the Corporation).
(vii) The term "SUBSIDIARY" means with reference to any person, any
corporation or other entity of which a majority of the voting power of equity
securities or majority of the equity interest is beneficially owned, directly or
indirectly, by such person, or otherwise controlled by such person; provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in paragraph (iv) above, the term "SUBSIDIARY" shall mean only a
corporation or other entity of which a majority of each class of equity
securities is beneficially owned by the Corporation.
(viii) "COMMON STOCK" shall mean the common stock, par value $0.01 per
share, of the Corporation, except that "COMMON STOCK" when used with reference
to any person other than the Corporation shall mean the capital stock of such
person with the greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such person.
(ix) The term "DISINTERESTED DIRECTOR," with respect to any particular
Business Combination with, or proposed by or on behalf of, any Interested
Stockholder or any Affiliate or Associate
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of any Interested Stockholder or any person who thereafter would be an Affiliate
or Associate of any Interested Stockholder, means (1) any member of the Board of
Directors of the Corporation, while such person is a member of the Board of
Directors, who is not an Interested Stockholder, an Affiliate or Associate of an
Interested Stockholder, or a representative of an Interested Stockholder or of
any such Affiliate or Associate, and was a member of the Board of Directors as
of the Commencement Time, or (2) any person who subsequently becomes a member of
the Board of Directors, while such person is a member of the Board of Directors,
who is not an Interested Stockholder, an Affiliate or Associate of an Interested
Stockholder, or a representative of an Interested Stockholder or of any such
Affiliate or Associate, if such person's nomination for election or election to
the Board of Directors is recommended or approved by a majority of the
Disinterested Directors then in office.
(x) The term "FAIR MARKET VALUE" means (1) in the case of cash, the
amount of such cash; (2) in the case of stock, the highest closing sale price
during the thirty (30)-day period immediately preceding the date in question of
a share of such stock on the Composite Tape for New York Stock Exchange-listed
stocks, or, if such stock is not quoted on the Composite Tape, on the New York
Stock Exchange, or, if such stock is not listed on such exchange, on the
principal United States securities exchange registered under the 1934 Act on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sale price with respect to a share of such stock
during the thirty (30)-day period immediately preceding the date in question as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System or any similar system then in use, or if no such sale prices
are available, the highest of the means between the last reported bid and asked
price with respect to a share of such stock on each day during the thirty
(30)-day period immediately preceding the date in question as reported by the
National Association of Securities Dealers, Inc. Automated Quotation System, or
if not so reported, as determined by a member firm of the National Association
of Securities Dealers, Inc. selected by a majority of the Disinterested
Directors, or if no such bid and asked prices are available, the fair market
value you on the date in question of a share of such stock as determined in good
faith by a majority of the Disinterested Directors; and (3) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Disinterested
Directors.
(xi) In the event of any Business Combination in which the Corporation
survives, the phrase "CONSIDERATION OTHER THAN CASH TO BE RECEIVED" as used in
paragraphs (1) and (2) of Section (b)(ii)(A) of this ARTICLE 13 (Fair Price--
Minimum Price Requirements) shall include the shares of Common Stock and/or the
shares of any other class or series of Capital Stock retained by the holders of
such shares.
(xii) The term "ANNOUNCEMENT DATE" means the date on which the proposed
Business Combination is first publicly announced, disclosed or reported.
(xiii) The term "DETERMINATION DATE" means with respect to any
Interested Stockholder, the date on which such Interested Stockholder became an
Interested Stockholder.
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(xiv) "BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the State of Texas are authorized or
obligated by law or executive order to close.
(d) Powers of Directors. For the purpose of this ARTICLE 13 (Fair Price), a
majority of the Disinterested Directors (whether or not any vacancies then exist
on the Board of Directors) shall exercise the powers of the Disinterested
Directors hereunder, and shall have the power and duty to determine in good
faith, on the basis of information known to them after reasonable inquiry, all
questions arising under this ARTICLE 13 (Fair Price), including, without
limitation, (1) whether a person is an Interested Stockholder, (2) the number of
shares of Capital Stock beneficially owned by any person, (3) whether a person
is an Affiliate or Associate of another, (4) whether a Business Combination is
with, or proposed by or on behalf of, an Interested Stockholder or an Affiliate
or Associate of an Interested Stockholder or a person who thereafter would be an
Interested Stockholder or an Affiliate or Associate of an Interested
Stockholder, and (5) whether any transaction specified in paragraph (i)(B) of
Section (c) of this ARTICLE 13 (Fair Price -- Certain Definitions) meets the
Substantial Part test set forth therein. Any such determination made in good
faith shall be binding and conclusive on all parties.
(e) No Effect On Fiduciary Obligations.
(i) Nothing contained in this ARTICLE 13 (Fair Price) shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(ii) The fact that any Business Combination complies with the
provisions of Section (b) of this ARTICLE 13 (Fair Price-- When Special Vote Not
Required) shall not be construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof, to approve such
Business Combination or recommend its adoption or approval to the stockholders
of the Corporation, nor shall such compliance limit, prohibit or otherwise
restrict in any manner the Board of Directors, or any member thereof, with
respect to evaluations of or actions and responses taken with respect to such
Business Combination.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.
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IN WITNESS WHEREOF, Alamosa Holdings, Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by David E. Sharbutt, its
Chairman of the Board and Chief Executive Officer, as of ___________, 2001.
ALAMOSA HOLDINGS, INC.,
a Delaware corporation
By:
----------------------------------------
David E. Sharbutt
Chairman of the Board and Chief
Executive Officer
