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Exhibit 3.3
RESTATED
CERTIFICATE OF INCORPORATION
OF
CORECOMM LIMITED
The undersigned, Thomas Gravina, certifies that he is the Co-President,
Co-Chief Operating Officer and Assistant Secretary of ATX Telecommunications
Services, 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 ATX Telecommunications Services, Inc.,
and the original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on February
9, 2000.
(2) This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
(3) The text of the Restated Certificate of Incorporation of the
Corporation as amended hereby is restated to read in its entirety, as
follows:
ARTICLE I
NAME OF THE CORPORATION
The name of the Corporation is CoreComm Limited (hereinafter, the
"Corporation").
ARTICLE II
ADDRESS OF THE REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is [9 Loockerman Street, City of Dover 19901, County of Kent]. The name
of its registered agent at that address is [National Registered Agents, Inc.]
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ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
ARTICLE IV
CAPITAL STOCK
A. Authorized Capital. The total number of shares of stock which the
Corporation shall have the authority to issue is 205,000,000 shares,
consisting of 200,000,000 shares of common stock, par value $0.01 per
share (the "Common Stock"), and 5,000,000 shares of preferred stock,
par value $0.01 per share (the "Preferred Stock").
B. The designation, relative rights, preferences and limitations of the
shares of each class are as follows:
1. The shares of Preferred Stock may be issued from time to time
in one or more series of any number of shares, provided that
the aggregate number of shares issued and not cancelled of any
and all such series shall not exceed the total number of
shares of Preferred Stock hereinabove authorized, and with
distinctive serial designations, all as shall hereafter be
stated and expressed in the resolution or resolutions
providing for the issue of such shares of Preferred Stock from
time to time adopted by the Board of Directors pursuant to
authority so to do which is hereby vested in the Board of
Directors. Each series of shares of Preferred Stock (a) may
have such voting powers, full or limited, or may be without
voting powers; (b) may be subject to redemption at such time
or times and at such prices; (c) may be entitled to receive
dividends (which may be cumulative or non-cumulative) at such
rate or rates, on such conditions and at such times, and
payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of
stock; (d) may have such rights upon the dissolution of, or
upon any distribution of the assets of, the Corporation; (e)
may be made convertible into or exchangeable for, shares of
any other class or classes or of any other series of the same
or any other class or classes of shares of the Corporation at
such price or prices or at such rates of exchange and with
such adjustments; (f) may be entitled to the benefit of a
sinking fund to be applied to the purchase or redemption of
shares of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and
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restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issue of any
additional shares (including additional shares of such series
or of any other series) and upon the payment of dividends or
the making of other distributions on, and the purchase,
redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding shares of the Corporation and
(h) may have such other relative, participating, optional or
other special rights, qualifications, limitations or
restrictions thereof; all as shall be stated in said
resolution or resolutions providing for the issue of such
shares of Preferred Stock. Any of the voting powers,
designations, preferences, rights and qualifications,
limitations or restrictions of any such series of Preferred
Stock may be made dependent upon facts ascertainable outside
of the resolution or resolutions providing for the issue of
such Preferred Stock adopted by the Board of Directors
pursuant to the authority vested in it by this Section B.1.,
provided that the manner in which such facts shall operate
upon the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such series of
Preferred Stock is clearly and expressly set forth in the
resolution or resolutions providing for the issue of such
Preferred Stock. The term "facts" as used in the immediately
preceding sentence shall have the meaning given to it in
Section 151(a) of the GCL. Shares of Preferred Stock of any
series that have been redeemed (whether through the operation
of a sinking fund or otherwise) or that if convertible or
exchangeable, have been converted into or exchanged for shares
of any other class or classes shall have the status of
authorized and unissued shares of Preferred Stock of the same
series and may be reissued as a part of the series of which
they were originally a part or may be reclassified and
reissued as part of a new series of shares of Preferred Stock
to be created by resolution or resolutions of the Board 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.
2. Subject to the provisions of any applicable law or of the
By-laws of the Corporation, as from time to time amended, with
respect to the closing of the transfer books or the fixing of
a record date for the determination of stockholders entitled
to vote and except as otherwise provided by law or by the
resolution or resolutions providing for the issue of any
series of shares of Preferred Stock, the holders of
outstanding shares of Common Stock shall exclusively possess
voting power for the election of directors and for all other
purposes, each holder of record of shares of Common Stock
being entitled to one vote for each share of Common Stock
standing in his or her name on the books of the Corporation.
Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of shares of Preferred
Stock, the holders of shares of Common
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Stock shall be entitled, to the exclusion of the holders of
shares of Preferred Stock of any and all series, to receive
such dividends as from time to time may be declared by the
Board of Directors. In the event of any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been made
to the holders of shares of Preferred Stock of the full amount
to which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of shares of
Preferred Stock, the holders of shares of Common Stock shall
be entitled, to the exclusion of the holders of shares of
Preferred Stock of any and all series, to share, ratably
according to the number of shares of Common Stock held by
them, in all remaining assets of the Corporation available for
distribution to its stockholders.
3. Subject to the provisions of this 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.
C. 3% Convertible Exchangeable Preferred Stock, Series A. The powers,
preferences and relative, participating, optional and other special
rights, and the qualifications, limitations and restrictions, of the
shares of Preferred Stock designated the "3% Convertible Exchangeable
Preferred Stock, Series A" are as set forth in this Article IV and in
Exhibit A to this Restated Certificate of Incorporation.
ARTICLE V
BOARD OF DIRECTORS
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. The number of directors
of the Corporation shall be as from time to time fixed by, or in the
manner provided in, the By-laws of the Corporation. The directors shall
be divided into three classes, designated Class I, Class II and Class
III. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire
Board of Directors. The term of the initial Class I directors shall
terminate on the date of the 2003 annual meeting of stockholders; the
term of the initial Class II directors shall terminate on the date of
the 2004 annual meeting of stockholders and the term of the initial
Class III directors shall terminate on the date of the 2005 annual
meeting of stockholders. At each annual meeting of stockholders
beginning in 2003, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term.
If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to
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maintain the number of directors in each class as nearly equal as
possible, and any additional directors of any class elected to fill a
vacancy resulting from an increase in such class shall hold office for
a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of directors shorten the term
of any incumbent director. A director shall hold office until the
annual meeting for the year in which such director's term expires and
until such director's successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
B. Any vacancy on the Board of Directors, howsoever resulting, may be
filled by a majority of the directors then in office, even if less than
a quorum, or by a sole remaining director. Any director elected to fill
a vacancy shall hold office for a term that shall coincide with the
term of the class to which such director shall have been elected.
C. Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of
such directorships shall be governed by the terms of this Restated
Certificate of Incorporation or the resolution or resolutions adopted
by the Board of Directors pursuant to Article IV applicable thereto,
and such directors so elected shall not be divided into classes
pursuant to this Article V unless expressly provided by such terms.
ARTICLE VI
REMOVAL OF DIRECTORS
Subject to the rights, if any, of the holders of shares of Preferred
Stock then outstanding, any or all of the directors of the Corporation may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of two-thirds (66-2/3%) of the outstanding shares of the
Corporation then entitled to vote generally in the election of directors,
considered for purposes of this Article VI as one class.
ARTICLE VII
PROHIBITION ON ACTIONS BY WRITTEN CONSENT
OF STOCKHOLDERS
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Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only upon the vote of the stockholders at
an annual or special meeting duly noticed and called, as provided in the By-laws
of the Corporation, and may not be taken by a written consent of the
stockholders pursuant to the GCL.
ARTICLE VIII
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of the stockholders of the Corporation for any purpose
or purposes may be called at any time by the Board of Directors, the Chairman of
the Board of Directors or the President. Special meetings of the stockholders of
the Corporation may not be called by any other person or persons.
ARTICLE IX
CERTAIN TRANSACTIONS
A. In addition to any affirmative vote required by law or this Restated
Certificate of Incorporation or the By-laws of the Corporation, and
except as otherwise expressly provided in Section B of this Article IX,
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 thereafter would be an Affiliate or
Associate of such Interested Stockholder shall require the affirmative
vote of not less than sixty-six and two-thirds percent (66-2/3%) of the
votes entitled to be cast by the holders of all the then outstanding
shares of Voting Stock (as hereinafter defined), voting together as a
single class, excluding Voting Stock beneficially owned by any
Interested Stockholder or any Affiliate or Associate of such Interested
Stockholder. 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 or in any agreement with
any national securities exchange or otherwise.
B. The provisions of Section A of this Article IX 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
or any other provision of this Restated Certificate of Incorporation or
the By-laws of the Corporation, if all of the conditions specified in
either of the following Paragraphs 1 or 2 are met:
1. The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined).
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2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and 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 highest
amount determined under clauses (i) and (ii) below:
(i) (if applicable) 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 acquired
by it (x) within the two-year period
immediately prior to the first public
announcement of the proposed Business
Combination (the "Announcement Date") or (y)
in the transaction 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 the Common Stock; and
(ii) the Fair Market Value per share of Common
Stock on the Announcement Date or on the
date on which the Interested Stockholder
became an Interested Stockholder (the
"Determination Date"), whichever is higher,
as adjusted for any subsequent stock split,
stock dividend, subdivision or
reclassification with respect to the Common
Stock.
(b) The aggregate amount of the cash and 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 (as
hereinafter defined), other than Common Stock, shall
be at least equal to the highest amount determined
under clauses (i), (ii) and (iii) below:
(i) (if applicable) 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-year period
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immediately prior to the Announcement Date
or (y) in the transaction 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;
(ii) the Fair Market Value per share of
such class or series of Capital
Stock on the Announcement Date or on
the Determination Date, whichever is
higher, as adjusted for any
subsequent stock split, stock
dividend, subdivision or
reclassification with respect to
such class or series of Capital
Stock; and
(iii) (if applicable) the highest
preferential amount per share to
which the holders of shares of such
class or series of Capital Stock
would be entitled 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.
The provisions of this Paragraph 2 shall be required to be met
with respect to every class or series of outstanding Capital
Stock, whether or not the Interested Stockholder has
previously acquired beneficial ownership of any shares of a
particular class or series of Capital Stock.
(c) 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 varied as to form, the form
of consideration for such class or series of Capital
Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of
shares of such class or series of Capital Stock
previously acquired by the Interested Stockholder.
(d) After the Determination Date and prior to the
consummation of such Business Combination: (i) except
as approved by a majority of the Continuing
Directors, there shall have been no failure to
declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative)
payable in accordance with
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the terms of any outstanding Capital Stock; (ii)
there shall have been no reduction in the annual rate
of dividends paid on the Common Stock (except as
necessary to reflect any stock split, stock dividend
or subdivision of the Common Stock), except as
approved by a majority of the Continuing Directors;
(iii) there shall have been an increase in the annual
rate of dividends paid on the Common Stock as
necessary to reflect any reclassification (including
any reverse stock 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 such annual rate is approved by a majority
of the Continuing Directors; and (iv) such Interested
Stockholder shall not have become the beneficial
owner of any additional shares of Capital Stock
except as part of the transaction that result in such
Interested Stockholder becoming an Interested
Stockholder and except in a transaction that, after
giving effect thereto, would not result in any
increase in the Interested Stockholder's percentage
beneficial ownership of any class or series of
Capital Stock.
(e) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder
(the "Act") (or any subsequent provisions replacing
such Act, rules or regulations) shall be mailed to
all stockholders of the Corporation at least 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 such
Act or subsequent provisions). The proxy or
information statement shall contain on the first page
thereof, in a prominent place, any statement as to
the advisability (or inadvisability) of the Business
Combination that the Continuing Directors, or any of
them, may choose to make and, if deemed advisable by
a majority of the Continuing Directors, an opinion of
an investment banking firm selected by a majority of
the Continuing Directors as to the fairness (or
unfairness) 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.
(f) Such Interested Stockholder shall not have made any
major change in the Corporation's business or equity
capital structure without the approval of a majority
of the Continuing Directors.
C. The following definitions shall apply with respect to this Article IX:
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1. The term "Business Combination" shall mean:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any
Interested Stockholder or (ii) any other company
(whether or not itself an Interested Stockholder)
which 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 security arrangement,
investment, loan, advance, guarantee, agreement to
purchase, agreement to pay, extension of credit,
joint venture participation or other arrangement (in
one transaction or 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, securities or commitments of
the Corporation, any Subsidiary or any Interested
Stockholder or any Affiliate or Associate of any
Interested Stockholder (except for any arrangement,
whether as employee, consultant or otherwise, other
than as a director, pursuant to which any Interested
Stockholder or any Affiliate or Associate thereof
shall, directly or indirectly, have any control over
or responsibility for the management of any aspect of
the business or affairs of the Corporation, with
respect to which arrangements the value tests set
forth below shall not apply), together with all other
such arrangements (including all contemplated future
events), has an aggregate Fair Market Value and/or
involves aggregate commitments of $5,000,000 or more
or constitutes more than 5 percent of the book value
of the total assets (in the case of transactions
involving assets or commitments other than capital
stock) or 5 percent 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, securities and/or
commitments constituting any Substantial Part; or
(c) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or for
any amendment to the Corporation's By-laws; or
(d) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
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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 Capital
Stock or into 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, contract or other arrangement
providing for any one or more of the actions
specified in the foregoing clauses (a) to (d).
2. The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under
Article IV of this Restated Certificate of Incorporation, and
the term "Voting Stock" shall mean all Capital Stock which by
its terms may be voted on all matters submitted to
stockholders of the Corporation generally.
3. The term "person" shall mean any individual, firm, company or
other entity and shall include any group comprised 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.
4. 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 (a) is or has announced or
publicly disclosed a plan or intention to become the
beneficial owner of Voting Stock representing fifteen percent
(15%) or more of the votes entitled to be cast by the holders
of all then outstanding shares of Voting Stock; or (b) is an
Affiliate or Associate of the Corporation and at any time
within the two-year period immediately prior to the date in
question was the beneficial owner of Voting Stock representing
fifteen percent (15%) or more of the votes entitled to be cast
by the holders of all then outstanding shares of Voting Stock.
5. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; (b) which such
person or any of its Affiliates or Associates has, directly or
indirectly, (i) 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
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otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or (c) 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 4 of this Section C, the number of shares of Capital
Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through applications of this
Paragraph 5 of Section C, but shall not include any other
shares of Capital Stock that may be issuable pursuant to an
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
6. The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Act, as in effect on ________,
2000 (the term "registrant" in said Rule 12b-2 meaning in this
case the Corporation).
7. "Subsidiary" means any company of which a majority of any
class of equity security is beneficially owned by the
Corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in Paragraph 4
of this Section C, the term "Subsidiary" shall mean only a
company of which a majority of each class of equity security
is beneficially owned by the Corporation.
8. The term "Continuing Director" means 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 Affiliate or
Associate or representative of the Interested Stockholder and
was a member of the Board of Directors prior to the time that
the Interested Stockholder became an Interested Stockholder,
and any successor of a Continuing Director while such
successor is a member of the Board of Directors, who is not an
Affiliate or Associate or representative of the Interested
Stockholder and is recommended or elected to succeed the
Continuing Director by a majority of Continuing Directors.
9. The term "Fair Market Value" means: (a) in the case of cash,
the amount of such cash; (b) in the case of stock, the highest
closing sale price during the 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
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Exchange, on the principal United States securities exchange
registered under the Act on which such stock is listed or, if
such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock
during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated
Quotations System, in the pink sheets of the National
Quotation Bureau or any similar system then in use, or if no
such quotations are available, the fair market value on the
date in question of a share of such stock as determined by a
majority of the Continuing Directors in good faith; and (c) 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 Continuing Directors.
10. 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 2.a. and 2.b. of
Section B of this Article IX 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.
D. A majority of the Continuing Directors shall have the power and duty to
determine for the purpose of this Article IX, on the basis of
information known to them after reasonable inquiry, all questions
arising under this Article IX, including, without limitation, (a)
whether a person is an Interested Stockholder, (b) the number of shares
of Capital Stock or other securities beneficially owned by any person,
(c) whether a person is an Affiliate or Associate of another, (d)
whether a Proposed Action (as hereinafter defined) is with, or proposed
by, or on behalf of an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder, (e) whether the assets that are
the subject of any Business Combination have, or the consideration to
be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $5,000,000 or more, and (f) whether the
assets or securities that are the subject of any Business Combination
constitute a Substantial Part. Any such determination made in good
faith shall be binding and conclusive on all parties. The good faith
determination of a majority of the Continuing Directors on such matters
shall be conclusive and binding for all purposes of this Article IX.
E. Nothing contained in this Article IX shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
F. The fact that any Business Combination complies with the provisions of
Section B of this Article IX 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,
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with respect to evaluations of or actions and responses taken with
respect to such Business Combination.
G. For the purposes of this Article IX, a Business Combination or any
proposal to amend, repeal or adopt any provision of this Restated
Certificate of Incorporation inconsistent with this Article IX
(collectively, "Proposed Action") is presumed to have been proposed by,
or on behalf of, an Interested Stockholder or an Affiliate or Associate
of an Interested Stockholder or a person who thereafter would become
such if (1) after the Interested Stockholder became such, the Proposed
Action is proposed following the election of any director of the
Corporation who with respect to such Interested Stockholder, would not
qualify to serve as a Continuing Director or (2) such Interested
Stockholder, Affiliate, Associate or person votes for or consents to
the adoption of any such Proposed Action, unless as to such Interested
Stockholder, Affiliate, Associate or person a majority of the
Continuing Directors makes a good faith determination that such
Proposed Action is not proposed by or on behalf of such Interested
Stockholder, Affiliate, Associate or person, based on information known
to them after reasonable inquiry.
H. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-laws of the Corporation (and notwithstanding
the fact that a lesser percentage or separate class vote may be
specified by law, this Restated Certificate of Incorporation or the
By-laws of the Corporation), any proposal to amend, repeal or adopt any
provision of this Restated Certificate of Incorporation inconsistent
with this Article IX which is proposed by or on behalf of an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder
shall require the affirmative vote of the holders of not less than
sixty-six and two-thirds percent (66-2/3%) of the votes entitled to be
cast by the holders of all the then outstanding shares of Voting Stock,
voting together as a single class, excluding Voting Stock beneficially
owned by such Interested Stockholder; provided, however, that this
Section H shall not apply to, and such sixty-six and two-thirds percent
(66-2/3%) vote shall not be required for, any amendment, repeal or
adoption unanimously recommended by the Board of Directors if all of
such directors are persons who would be eligible to serve as Continuing
Directors within the meaning of Section C, Paragraph 8 of this Article
IX.
ARTICLE X
LIMITATION ON LIABILITY
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the
<PAGE> 15
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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)
pursuant to Section 174 of the GCL or (iv) for any transaction from which the
director derived an improper personal benefit. No amendment to or repeal to this
Article X shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
ARTICLE XI
ACTIONS WITH RESPECT TO BY-LAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, repeal, alter,
amend or rescind the By-laws of the Corporation. In addition, the By-laws of the
Corporation may be adopted, repealed, altered, amended, or rescinded by the
affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the
outstanding stock of the Corporation entitled to vote thereon.
ARTICLE XII
MODIFICATION OF CERTAIN PROVISIONS OF
THIS RESTATED CERTIFICATE OF INCORPORATION
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the Voting Stock, voting together
as a single class, shall be required to amend, repeal or adopt any provision
inconsistent with Articles V, VII, VIII, IX, X and XI of this Restated
Certificate of Incorporation.
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ARTICLE XIII
FURTHER ACTIONS WITH RESPECT TO
THIS RESTATED CERTIFICATE OF INCORPORATION
The Corporation reserves the right to repeal, alter, amend, or rescind
any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
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17
IN WITNESS WHEREOF, ATX Telecommunications Services, Inc. has caused
this Restated Certificate of Incorporation to be signed by Thomas Gravina, its
Co-President, Co-Chief Operating Officer and Assistant Secretary, this ___ day
of _________, 2000.
ATX TELECOMMUNICATIONS
SERVICES, INC.
By:
_________________________________
Thomas Gravina
Co-President, Co-Chief Operating
Officer and Assistant Secretary
