SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
_______________________LEVEL 3 COMMUNICATIONS, INC.________________________
(Exact name of registrant as specified in its charter)
Delaware 47-0210602
(State of incorporation or (I.R.S. Employer
organization) Identification No.)
1000 Kiewit Plaza
Omaha, Nebraska 68131
(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [ ]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [x]
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share________________
(Title of class)
Item 1. Description of Registrant's Securities to be Registered.
Pursuant to the merger of the Registrant and Level 3 Communications,
Inc., the Registrant's first tier, wholly owned subsidiary, effective March
27, 1998, the name of the Registrant was changed from "Peter Kiewit Sons',
Inc." to "Level 3 Communications, Inc." Pursuant to the filing of a Restated
Certificate of Incorporation on March 31, 1998, the Class D Diversified Group
Convertible Exchangeable Stock, par value $.0625 per share of the Registrant
was redesignated as Common Stock, par value $.01 per share (the "Common
Stock"). For a description of the Common Stock, see "Comparison of Class D
Stock and Diversified Holdings Stock" included in the Registrant's
Registration Statement on Form S-4 (File No. 333-34627) as filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), on August 29, 1997, as amended by
Amendment No. 1 to the Registration Statement on Form S-4 filed on October 10,
1997, Amendment No. 2 to the Registration Statement on Form S-4 filed on
November 6, 1997 and Amendment No. 3 to the Registration Statement on Form S-4
filed on November 10, 1997, which description shall be deemed to be
incorporated herein by reference.
Item 2. Exhibits.
1. The Restated Certificate of Incorporation of the Registrant, dated
March 31, 1998.
2. The Amended and Restated By-laws of the Registrant.
3. Specimen of Stock Certificate of Common Stock, par value $.01 per
share.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
LEVEL 3 COMMUNICATIONS, INC.
Dated: March 31, 1998 By: /s/ Matthew J. Johnson
Name: Matthew J. Johnson
Title: Vice President
Exhibit Index
1. The Restated Certificate of Incorporation of the Registrant, Inc.,
dated March 31, 1998.
2. The Amended and Restated By-laws of the Registrant.
3. Specimen of Stock Certificate of Common Stock, par value $.01 per
share.
Exhibit 1
RESTATED CERTIFICATE OF INCORPORATION
OF
LEVEL 3 COMMUNICATIONS, INC.
Pursuant to Section 245
of the Delaware General Corporation Law
Level 3 Communications, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is Level 3 Communications, Inc. The
Corporation was originally incorporated under the name Peter Kiewit Sons',
Inc.
2. The original Certificate of Incorporation of the Corporation was
filed in the office of the Secretary of State of the State of Delaware on
July 1, 1941 and the Restated Certificate of Incorporation of the Corporation
was filed in such office on January 5, 1992.
3. This Restated Certificate of Incorporation, which was duly
adopted pursuant to Sections 242 and 245 of the Delaware General Corporation
Law, restates and integrates and further amends the provisions of the Restated
Certificate of Incorporation of the Corporation.
4. The text of the Restated Certificate of Incorporation as
heretofore amended or supplemented is hereby restated and further amended, as
of 5:00 p.m. CST on March 31, 1998, to read in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is: Level 3 Communications, Inc.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware
(the "DGCL").
ARTICLE IV
AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall
have the authority to issue is 518,500,000 shares, consisting of 500,000,000
shares of Common Stock, par value $.01 per share (the "Common Stock"),
8,500,000 shares shall be Class R Convertible Common Stock, par value $0.01
per share (the "Class R Stock") and 10,000,000 shares of Preferred Stock, par
value $.01 per share ("Preferred Stock").
Ten shares of the Common Stock are hereby designated as Common Stock,
Non-Redeemable Series. The rights, powers, preferences, privileges and
limitations of Common Stock, Non-Redeemable Series shall be identical to those
of all other shares of Common Stock, except as described in Articles V and IX
hereof.
Upon the filing of this Restated Certificate of Incorporation with the
office of the Secretary of the State of Delaware (the "Effective Time"),
(i) each share of the Corporation's Class D Diversified Group Convertible
Exchangeable Common Stock, par value of $.0625 per share ("Class D Stock"),
that is issued and outstanding, reserved for issuance or held in the
Corporation's treasury at the Effective Time, shall be automatically
redesignated and reclassified, without any action on the part of the
respective holders thereof, as Common Stock, and (ii) each share of Class D
Stock that is designated as Class D Stock, Non-Redeemable Series and that is
issued and outstanding, reserved for issuance or held in the Corporation's
treasury at the Effective Time, shall be automatically redesignated and
reclassified, without any action on the part of the respective holders
thereof, as Common Stock, Non-Redeemable Series.
ARTICLE V
COMMON STOCK
A. Dividends. After dividends payable on any Preferred Stock
have been declared and set aside on such Preferred Stock having a preference
over the Common Stock with respect to the payment of such dividends, the
holders of Common Stock shall be entitled to receive, together with holders of
Class R Stock, when and as declared, out of assets and funds legally available
therefor, cash or non-cash dividends payable as and when the Board of
Directors in its sole business judgment so declares. Any such dividend shall
be payable ratably to all record holders of Common Stock as of the record date
fixed by the Board of Directors in accordance with the By-laws of the
Corporation for the payment thereof.
B. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation
("Liquidation"), the holders of Common Stock, together with holders of Class R
Stock, then outstanding shall be entitled to be paid ratably out of the assets
and funds of the Corporation available for distribution to its stockholders,
after and subject to the payment in full of all amounts required to be
distributed to the holders of any Preferred Stock upon Liquidation, an amount
equal to their share (including any declared but unpaid dividends on the
Common Stock, subject to proportionate adjustment in the event of any stock
dividend, stock split, stock distribution or combination with respect to such
shares) of such assets and funds.
C. Voting.
1. Except as required by law, or as otherwise provided
herein or in any amendment hereof, the entire voting power of the Corporation
with respect to all matters other than the election of directors shall be
vested in the holders of Common Stock voting together as a single class.
Except as required by law, or as otherwise provided herein or in any amendment
hereof, the entire voting power of the Corporation with respect to the
election of directors shall be vested in the holders of Common Stock and
Class R Stock voting together as a single class.
2. Each holder of Common Stock entitled to vote shall at
every meeting of the stockholders of the Corporation be entitled to one vote
for each share of Common Stock registered in his or her name on the record of
stockholders.
D. Designation of Common Stock, Non-Redeemable Series.
In the event that the Common Stock is Publicly Traded (as defined),
(i) each share of Common Stock, Non-Redeemable Series shall automatically, and
without further action by or on behalf of the Corporation, the Corporation's
transfer agent or the holder of any share of Common Stock, Non-Redeemable
Series, be converted into an equal number of shares of Common Stock which are
not Common Stock, Non-Redeemable Series, and the rights, powers, preferences,
privileges and limitations of such shares so converted shall be identical to
those of all other shares of Common Stock in all respects, and (ii) Common
Stock, Non-Redeemable Series shall no longer be designated as a separate
series of Common Stock.
ARTICLE VI
CLASS R STOCK
A. Certain Definitions.
"Appraised Value" shall have the meaning given to it in
paragraph E.3. hereof.
"Attached Class R Stock" shall mean Class R Stock which is
attached to PKS Holdings Stock pursuant to the terms hereof.
"Attached Transfer" shall mean the simultaneous transfer to the
same transferee of a share of Class R Stock (or fraction thereof) and the
share of PKS Holdings Stock to which such share of Class R Stock (or fraction
thereof) is attached; provided that such transfer of such share of PKS
Holdings Stock is permitted by the Certificate of Incorporation of PKS
Holdings.
"Base Conversion Value" shall mean $25.00.
"Base Price" shall mean $82.00 per share, subject to adjustment
as provided in paragraph F. hereof.
"Business Day" means any day other than a Saturday, a Sunday or
a day on which banking institutions in the City of New York or the city in
which the Corporation's transfer agent maintains its principal office or a
place of payment are authorized by law, regulation or executive order to
remain closed.
"Change of Control" shall mean the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Corporation and
its subsidiaries taken as a whole, to any "person" (as such term is used in
Section 13(d)(3) of the Exchange Act); (ii) the adoption of a plan relating to
the liquidation or dissolution of the Corporation; (iii) the consummation of
any transaction (including, without limitation, any merger or consolidation)
the result of which is that any "person" (as defined above), becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act), directly or indirectly, of shares representing more than
50% of the total outstanding voting power of the Corporation or the surviving
corporation of any such merger or consolidation (if other than the
Corporation); (iv) the first day on which a majority of the members of the
Board of Directors are not Continuing Directors; or (v) the adoption by the
Board of Directors of a plan for the distribution of all or substantially all
of the assets of the Corporation and its subsidiaries taken as a whole, to
stockholders of the Corporation; provided, however, that the Class C Exchange
shall not be considered a Change of Control.
"Class C Exchange" shall mean the exchange by the Corporation,
pursuant to the Separation Agreement, of one share of PKS Holdings Stock for
each outstanding share of Class C Stock.
"Class C Stock" shall mean the Class C Construction & Mining
Group Restricted Redeemable Convertible Exchangeable Common Stock, par value
$0.0625 per share, of the Corporation which was exchanged for PKS Holdings
Stock pursuant to the Class C Exchange.
"Continuing Director" shall mean, as of any date of
determination, any member of the Board of Directors of the Corporation who
(i) was a member of such Board of Directors immediately following the
consummation of the Class C Exchange or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time
of such nomination or election.
"Conversion Condition" shall mean, with respect to a given
share of Class R Stock (or fraction thereof), the occurrence of the earliest
of: (i) the repurchase or redemption by PKS Holdings of the share of PKS
Holdings Stock to which it is attached; (ii) the exchange of the share of PKS
Holdings Stock to which it is attached into another class of stock or
securities of PKS Holdings intended to be issued primarily to persons leaving
employment of PKS Holdings; (iii) April 15, 2006; and (iv) a Change of Control
of the Corporation; provided, however, that the Conversion Condition shall not
be deemed to have occurred as a result of the Class C Exchange.
"Conversion Ratio" shall have the meaning given to it in
paragraph E. hereof.
"Conversion Ratio Certificate" shall mean either a Private
Conversion Ratio Certificate or a Public Conversion Ratio Certificate, each
having the meaning given to it in paragraph E. hereof.
"Conversion Value" shall mean, as of any given date, the
Conversion Value set forth in the most recent Conversion Ratio Certificate
delivered pursuant to paragraph E. hereof on or prior to such date, subject to
any adjustment required by paragraph F. hereof. The Conversion Value set forth
in any such Conversion Ratio Certificate shall be equal to: (i) in the event
that the Trading Price is greater than or equal to the Base Price, the Base
Conversion Value; (ii) in the event that the Trading Price is less than the
Base Price, an amount equal to (a) the Base Conversion Value minus (b) an
amount equal to (x) the Excess Amount Factor, multiplied by (y) the amount by
which the Base Price exceeds the Trading Price; provided, however, that in no
event shall the Conversion Value be less than the Minimum Value.
"Convertible Security" shall mean any right or warrant to
subscribe for or to purchase, or any option for the purchase of, shares of
Common Stock or any stock, or other securities convertible into or
exchangeable for shares of Common Stock; provided, however, that Class R Stock
shall not be a Convertible Security.
"Current Trading Value" of any Publicly Traded security on a
given date shall mean the arithmetic mean of the daily Mean Reported Prices of
such security for each Business Day during the period commencing on and
including the fourteenth Business Day preceding such date and ending on and
including such date.
"Excess Amount Factor" shall mean 1.0, subject to adjustment as
provided in paragraph F. hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Extraordinary Dividend" shall mean any dividend, or portion
thereof, on the Common Stock (i) paid in property other than (a) cash,
(b) shares of Common Stock in a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), or (c) pursuant to any rights
agreement in connection with a stockholder rights plan approved by the Board
of Directors or (ii) paid in cash, to the extent that such dividend, together
with all cash dividends paid on the Common Stock during the twelve-month
period ending on the date of payment of such dividend exceeds, on a per share
basis, 10% of the Trading Price of the Common Stock as of the record date of
such dividend; provided, however, that in no event shall such excess be
greater than the amount of such dividend.
"Fixed Conversion Value" shall mean $25.00, as adjusted
pursuant to paragraph F. hereof.
"Fixed Terms" shall mean each of the Fixed Conversion Value and
the Base Price, each as adjusted pursuant to paragraph F. hereof.
"Initial Issuance Date" shall mean the date of issuance of the
first share of Class R Stock (or fraction thereof) to be issued.
"Inverse Fixed Terms" shall mean each of the Excess Amount
Factor and the Minimum Conversion Liquidation Ratio, each as adjusted pursuant
to paragraph F. hereof.
"Investment Bank" shall mean any investment bank of national
reputation selected by the Board of Directors.
"Liquidation Ratio" shall mean, as of any date, a fraction, the
numerator of which is the product of (i) the number of shares of Class R Stock
outstanding as of such date and (ii) the Conversion Ratio, and the denominator
of which is sum of (a) the number of shares of Common Stock outstanding as of
such date and (b) the numerator of such fraction; provided, however, that in
no event shall the Conversion Ratio used to calculate such Liquidation Ratio
be less than the Minimum Conversion Liquidation Ratio.
"Mandatory Conversion Date" shall mean April 15, 2010.
"Mean Reported Price" shall mean on a given day with respect to
any Publicly Traded security, the arithmetic mean between the highest reported
sales price and the lowest reported sales price, in each case regular way, for
such security, as reported on the Composite Quotation System, or, if such
security is not reported on the Composite Quotation System, on the principal
national securities exchange on which such security is listed or admitted to
trading, or if such security is not listed or admitted to trading on any
national securities exchange, reported by the Nasdaq National Market or Nasdaq
SmallCap Market, as appropriate, or a similar organization if Nasdaq is no
longer reporting such information.
"Minimum Conversion Liquidation Ratio" shall mean 0.25, as
adjusted pursuant to paragraph F. hereof.
"Minimum Value" shall mean $15.00.
"Permitted Transfer" shall mean any transfer of Class R Stock
to the Corporation or any designee of the Corporation, including a Forced
Conversion or the Mandatory Conversion.
"PKS Holdings" shall mean PKS Holdings, Inc., together with its
successors and assigns.
"PKS Holdings Stock" shall mean common stock, par value $.01
per share, of PKS Holdings.
"Private Conversion Period" shall mean the 25-day period
commencing on and including the first day following the Corporation's mailing
to the registered holders of Class R Stock of a Private Conversion Ratio
Certificate; provided, however, that in 2006 such term shall run through May
15, 2006, regardless of the date of such mailing.
"Public Conversion Period" shall mean the period commencing on
and including the first Business Day of each calendar month, through and
including the fifth Business Day thereafter, except for the calendar month of
April 2010, for which the Public Conversion Period shall mean the period from
and including the first Business Day of such month, through and including
April 15, 2010.
"Publicly Traded" shall mean, with respect to any security,
that such security is listed on a national securities exchange, or is traded
on the Nasdaq National Market System or the Nasdaq SmallCap Market, and has
been so listed or traded for at least 15 Business Days prior to the date in
question.
"Regular Dividend" shall mean any dividend on the Common Stock
paid in cash that is not an Extraordinary Dividend.
"Restricted Period Termination Date" shall mean, with respect
to a given share of Class R Stock (or fraction thereof), the date on which the
Conversion Condition with respect to such share of Class R Stock (or fraction
thereof) has been satisfied.
"Separation Agreement" shall mean that certain Separation
Agreement dated as of , 1997 among the Corporation, PKS Holdings,
Kiewit Diversified Group, Inc. and Kiewit Construction Group, Inc.
"Trading Price" shall mean, as of any date, the Trading Price
set forth in the most recent Conversion Ratio Certificate, as described in
paragraphs E.3. and E.4. hereof.
B. Attachment.
1. Upon issuance, each share of Class R Stock (or fraction
thereof) which was issued prior to the Effective Time attached to the share of
Class C Stock with respect to which it was distributed. Upon the occurrence of
the Class C Exchange, each share of Class R Stock (or fraction thereof) which
was attached to a share of Class C Stock, automatically and without further
action by or on behalf of the Corporation, PKS Holdings, the Corporation's
transfer agent or the holder of such share of Class R Stock or Class C Stock,
attached to the share of PKS Holdings Stock for which such share of Class C
Stock was exchanged.
2. Each share of Class R Stock (or fraction thereof) attached
to a share of PKS Holdings Stock immediately prior to the Effective Time shall
remain attached to such share of PKS Holdings Stock after the Effective Time
unless and until otherwise provided herein.
3. In the event that PKS Holdings shall (i) pay a dividend on
PKS Holdings Stock in shares of PKS Holdings Stock, (ii) subdivide its
outstanding shares of PKS Holdings Stock, (iii) combine its outstanding shares
of PKS Holdings Stock into a smaller number of shares of PKS Holdings Stock or
(iv) issue any shares of capital stock in a reclassification of PKS Holdings
Stock (including any such reclassification in connection with a consolidation
or merger), shares of Class R Stock (or fractions thereof) which were attached
to PKS Holdings Stock immediately prior to the occurrence of any such event
shall, upon the effectiveness of any such event, attach on a pro rata basis to
(x) the PKS Holdings Stock held by such holder to which such shares of Class R
Stock (or fractions thereof) were attached; and/or (y) any capital stock so
issued having ownership restrictions comparable to those applicable to the PKS
Holdings Stock at the time of the Class C Exchange to which such shares of
Class R Stock (or fractions thereof) were attached at such time, as
appropriate.
A share of Class R Stock (or fraction thereof) shall detach
from the share of PKS Holdings Stock to which it is attached only upon the
occurrence of (i) the Conversion Condition with respect to such share of
Class R Stock (or fraction thereof), or (ii) a Permitted Transfer. If, at any
time prior to the first anniversary of the Class C Exchange, any holder, who
had sold or transferred to the Corporation prior to the Class C Exchange
shares of Class C Stock to which Class R Stock was attached, purchases or
acquires PKS Holdings Stock, the number of shares of Class R Stock (or
fractions thereof) held by such holder which are not attached to PKS Holdings
Stock multiplied by the Reattachment Ratio shall, unless otherwise determined
by the Board of Directors, immediately attach, without further action by or on
behalf of the Corporation, PKS Holdings, the Corporation's transfer agent or
the holder of such share of Construction Stock, to such newly purchased or
acquired shares of PKS Holdings Stock on a pro rata basis, and the Conversion
Condition and the Restricted Period Termination Date shall be deemed not to
have occurred with respect to such shares of Class R Stock (and fractions
thereof) so attached.
"Reattachment Ratio" shall mean the lesser of (i) 1.0 or (ii) a
fraction, the numerator of which equals the purchase price paid to PKS
Holdings, for such newly purchased or acquired shares of PKS Holdings Stock,
and the denominator of which equals the purchase price paid to such holder by
the Corporation for such repurchase of such shares of Class C Stock.
4. Certificates representing Attached Class R Stock shall
contain such legends as the Corporation shall deem appropriate.
C. Transfer Restrictions.
1. Prior to the occurrence of the Restricted Period
Termination Date for a given share of Class R Stock (or fraction thereof), any
attempted transfer of such share of Class R Stock (or fraction thereof),
except an Attached Transfer, or a Permitted Transfer, shall be void and of no
effect. Neither the Corporation nor its transfer agent shall register any
attempted transfer of any certificate representing a share of Class R Stock
(or fraction thereof) prior to the occurrence of the Restricted Period
Termination Date for such share of Class R Stock (or fraction thereof), except
an Attached Transfer or a Permitted Transfer. For purposes hereof, neither the
Class C Exchange, the attachment of Class R Stock to PKS Holdings Stock upon
the occurrence of the Class C Exchange nor the reattachment of Class R Stock
to PKS Holdings Stock pursuant to paragraph B.3. hereof shall be considered a
transfer of Class R Stock.
2. Following the Class C Exchange and the occurrence of the
Restricted Period Termination Date for a given share of Class R Stock (or
fraction thereof), such share of Class R Stock (or fraction thereof) shall
separate from the share of PKS Holdings Stock to which it was attached and,
until the close of business on the Mandatory Conversion Date, shall be freely
transferable, and the Corporation or its transfer agent shall from time to
time register the transfer of the certificate representing such share of Class
R Stock (or fraction thereof) upon the books of the Corporation, upon
surrender of such certificate, duly endorsed, accompanied by documentation
reasonably satisfactory to the Corporation evidencing that the Restricted
Period Termination Date has occurred with respect to such Class R Stock (or
fraction thereof).
3. In the event of an Attached Transfer or a Permitted
Transfer of a share of Class R Stock (or fraction thereof) following the
Class C Exchange and prior to the Restricted Period Termination Date of such
share of Class R Stock (or fraction thereof), the Corporation or its transfer
agent shall from time to time register such Attached Transfer or Permitted
Transfer of the certificate representing such share of Class R Stock (or
fraction thereof) upon the books of the Corporation, upon surrender of such
certificate, duly endorsed, accompanied by documentation reasonably
satisfactory to the Corporation evidencing the Attached Transfer or Permitted
Transfer, as the case may be, of such Class R Stock.
D. Optional Conversion.
1. Subject to the provisions hereof, each share of Class R
Stock may be converted, at the option of the holder thereof (an "Optional
Conversion"), into the number of fully paid and nonassessable shares of Common
Stock, which are not Class D Stock, Non-Redeemable Series, equal to the
Conversion Ratio then in effect, and each fraction of a share of Class R Stock
may be converted into the number of fully paid and nonassessable shares of
such Common Stock equal to such fraction multiplied by the Conversion Ratio
then in effect. No share of Class R Stock (or fraction thereof) may be
converted into Common Stock prior to the occurrence of the Conversion
Condition with respect to such share of Class R Stock (or fraction thereof),
except as provided in paragraph K. hereof.
2. Other than as set forth in paragraphs K. and L. hereof,
Class R Stock may not be converted into Common Stock except as follows:
a) In the event that the Common Stock is not Publicly
Traded, each share of Class R Stock (or fraction thereof) for which the
Conversion Condition has been met may be converted into Common Stock on any
Business Day during any Private Conversion Period following the earlier of
(i) December 31, 1999, or (ii) a Change of Control; and
b) In the event that the Common Stock is Publicly Traded,
each share of Class R Stock (or fraction thereof) for which the Conversion
Condition has been met may be converted into Common Stock on any Business Day
during any Public Conversion Period after the Blackout Period. The "Blackout
Period" shall mean the 90-day period commencing on the first day on which the
Common Stock is Publicly Traded; provided, however, that the Board of
Directors may, by resolution, extend the Blackout Period up to 180 days from
the first day on which the Common Stock is Publicly Traded if so requested by
a managing underwriter of Common Stock in connection with an underwritten
initial public offering thereof. A copy of such resolution of the Board of
Directors shall be made available to any stockholder of the Corporation upon
request thereby.
3. Upon the occurrence of any Forced Conversion or Mandatory
Conversion of Class R Stock or any liquidation of the Corporation, the right
of Optional Conversion shall terminate at the close of business on the full
Business Day next preceding the date fixed for such Forced Conversion or
Mandatory Conversion or for the payment of any amounts distributable on
liquidation to the holders of Class R Stock.
4. The Corporation may issue fractions of shares of Class R
Stock. The Corporation shall not issue fractions of shares of Common Stock or
scrip in lieu thereof upon conversion of Class R Stock. If any fraction of a
share of Common Stock would, except for the provisions of this paragraph D.4.,
be issuable upon conversion of any Class R Stock, the Corporation shall in
lieu thereof pay to the person entitled thereto an amount in cash equal to the
Trading Price then in effect multiplied by the fraction represented by such
fraction of a share of Common Stock.
5. In order to exercise the Optional Conversion privilege, the
holder of any Class R Stock to be converted shall surrender such holder's
certificate or certificates therefor to the principal office of the transfer
agent for the Class R Stock (or if no transfer agent be at the time appointed,
then the Corporation at its principal office), and shall give written notice
to the Corporation at such office that the holder elects to convert the
Class R Stock represented by such certificates, or any number thereof. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion, and for any shares of Class R Stock (or fractions thereof)
represented by the certificate or certificates so surrendered which are not to
be converted, shall be issued, subject to any restrictions on transfer
relating to such shares of the Class R Stock (or fractions thereof). If so
required by the Corporation, certificates surrendered for conversion shall be
duly endorsed and accompanied by documentation satisfactory to the Corporation
evidencing that the Restricted Period Termination Date has occurred with
respect to such Class R Stock.
6. As soon as practicable after receipt during a Conversion
Period of such notice and documentation and the surrender of the certificate
or certificates for Class R Stock for which the Conversion Condition has been
met, as aforesaid, the Corporation shall cause to be issued and delivered at
such office to such holder, or on his or its written order, a certificate or
certificates for the number of full shares of Common Stock issuable on such
conversion in accordance with the provisions hereof, cash as provided in
paragraph D.4. hereof in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion and a certificate or certificates for
the number of shares of Class R Stock (or fractions thereof) representing the
shares of Class R Stock (or fractions thereof) surrendered pursuant to
paragraph D.5. hereof but not so converted. Such shares of Common Stock, when
issued, shall be fully paid and nonassessable and free from all taxes, liens,
charges and security interests created by or imposed upon the Corporation with
respect to the issuance and holding thereof.
7. The Corporation shall at all times when the Class R Stock
shall be outstanding reserve and keep available out of its authorized but
unissued Common Stock, for the purposes of effecting the conversion of the
Class R 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 Class R Stock. Before taking any action which would cause an
adjustment reducing the Conversion Value below the then par value of the
shares of Common Stock issuable upon conversion of the Class R Stock, the
Corporation shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of such Common Stock at such
adjusted Conversion Value.
8. All shares of Class R Stock (and fractions thereof) 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 forthwith
cease and terminate except only the right of the holder thereof to receive
shares of Common Stock and cash for fractional shares of Common Stock in
exchange therefor and payment of any accrued and unpaid dividends thereon. Any
shares of Class R Stock (and fractions thereof) so converted shall be retired
and canceled and shall not be reissued, and the Corporation shall from time to
time take such appropriate action as may be necessary to reduce the authorized
Class R Stock accordingly.
E. Determination of Conversion Ratio; Obligation of the
Corporation to Provide Conversion Ratio Certificates and Appraisals.
1. The Conversion Ratio, Conversion Value and Trading Price
used for any purpose, including with respect to the conversion of Class R
Stock, shall be as set forth in the most recent Conversion Ratio Certificate,
and shall in any case be as adjusted pursuant to paragraph F. hereof;
provided, however, that prior to the delivery of the first Conversion Ratio
Certificate, the Conversion Value shall be the Fixed Conversion Value, the
Trading Price shall be the Base Price and the Conversion Ratio shall be equal
to the Fixed Conversion Value divided by the Base Price, as each of such terms
shall be adjusted pursuant to the terms hereof.
2. The "Conversion Ratio" shall be equal to (i) the Conversion
Value divided by (ii) the Trading Price.
3. If, at the end of any fiscal year of the Corporation,
beginning with the end of the fiscal year ending in 1999, the Common Stock is
not Publicly Traded, the Corporation shall, no earlier than 20 days nor later
than 60 days following the end of such fiscal year, cause to be provided to
each office designated for conversion of Class R Stock, a copy of a
certificate (the "Private Conversion Ratio Certificate") signed by two
officers of the Corporation setting forth the Conversion Ratio, Conversion
Value and Trading Price as of the end of such fiscal year, calculated in each
case pursuant to this paragraph E. In addition, if a Change of Control occurs
when the Common Stock is not Publicly Traded, the Corporation shall within 60
days following such Change of Control, cause to be provided to each office
designated for conversion of Class R Stock, such a Private Conversion Ratio
Certificate.
The "Trading Price" set forth in such Private Conversion Ratio
Certificate shall be the Appraised Value set forth in the most recent
Appraisal delivered to the Corporation and approved by the Board of Directors.
If, at the end of any fiscal year of the Corporation, beginning
with the end of the fiscal year ending in 1999, the Common Stock is not
Publicly Traded, the Corporation shall cause to be prepared and delivered to
the Board of Directors and approved by the Board of Directors, prior to 60
days following the end of such fiscal year, an appraisal (an "Appraisal") of
the per share value of the Common Stock as of the last day of such fiscal year
by an Investment Bank. If a Change of Control occurs or the Board of Directors
should determine to cause a Forced Conversion, and the Common Stock is not
Publicly Traded, the Corporation shall cause to be prepared and delivered to
the Board of Directors and approved by the Board of Directors, within 60 days
following such Change of Control or determination of the Board of Directors,
an Appraisal of the per share value of the Common Stock as of the date of such
Change of Control or determination of the Board of Directors. Such Investment
Bank shall determine the per share value of the Common Stock as if the Common
Stock was Publicly Traded and shall submit such per share value to the Board
of Directors for its approval. The value per share of the Common Stock as
approved by the Board of Directors shall be the "Appraised Value." In
determining the Appraised Value, the Investment Bank shall place substantial,
but not exclusive, emphasis on valuations of comparable companies in the
public equity markets, and shall not take into account factors such as control
premiums, minority discounts or illiquidity discounts that would not generally
apply to such companies.
As promptly as practicable following its delivery of any
Private Conversion Ratio Certificate, the Corporation shall cause to be given
to each of the registered holders of Class R Stock at such holder's address
appearing upon the books of the Corporation a copy of such Private Conversion
Ratio Certificate by first class mail, postage prepaid.
4. During any period in which the Common Stock is Publicly
Traded, the Corporation shall, on the last Business Day of each calendar
month, cause to be provided to each office designated for conversion of
Class R Stock, a copy of a certificate (the "Public Conversion Ratio
Certificate"), signed by two officers of the Corporation, setting forth the
Conversion Ratio, Conversion Value and Trading Price as of the close of
business on such Business Day, calculated in each case pursuant to this
paragraph E.
The "Trading Price" set forth in such Public Conversion Ratio
Certificate shall be equal to the Current Trading Value of one share of Common
Stock as of the close of business on the last Business Day of such calendar
month. Notwithstanding anything herein to the contrary, if, during any period
being used to calculate such Current Trading Value (the "Calculation Period"),
any event has occurred to cause the Conversion Ratio and/or the Conversion
Value to be adjusted pursuant to paragraph F. hereof (an "Adjustment Event"),
the Corporation shall in good faith determine such Conversion Ratio and/or the
Conversion Value, as appropriate, so as to give pro forma effect to the
Adjustment Event immediately prior to the Calculation Period.
The Corporation shall provide any holder of Class R Stock with
a copy of any Public Conversion Ratio Certificate upon request. Beginning on
the day on which the first Public Conversion Ratio Certificate is provided
pursuant to this paragraph E.4., the Corporation shall maintain a reasonable
means to allow holders to be informed of the value of the Conversion Ratio as
set forth in the most recent Public Conversion Ratio Certificate on an
immediate basis during business hours on each Business Day on which Class R
Stock is issued and outstanding.
5. All calculations and determinations required to be made by
the Corporation pursuant hereto shall be made by the Corporation in good
faith. All such calculations and determinations shall be conclusive unless
otherwise specifically provided hereby.
6. Conversion Ratio Certificates may, at the Corporation's
discretion, be prepared by an agent of the Corporation. In such case each such
Conversion Ratio Certificate shall be signed by an authorized signatory of
such agent and countersigned by two officers of the Corporation.
7. Upon any conversion of Class R Stock into Common Stock, in
no event shall any such Class R Stock be converted into Common Stock,
Non-Redeemable Series.
F. Anti-dilution Provisions.
1. If the Corporation shall (a) pay a dividend on any of its
shares of capital stock (including Common Stock) in shares of Common
Stock, (b) subdivide its outstanding shares of Common Stock,
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock or (d) in an event or manner other
than as set forth in paragraph F.4. below issue any shares of its
capital stock in a reclassification of the Common Stock (each, a
"Conversion Term Adjustment Event"):
a) Each of the Fixed Terms shall be adjusted to the value
determined by multiplying (x) the Fixed Term immediately
prior to such Conversion Term Adjustment Event, by (y)
a fraction, the numerator of which is the number of shares
of Common Stock
outstanding immediately prior to such Conversion Term
Adjustment Event, and the denominator of which is the number
of shares of Common Stock outstanding immediately after such
Conversion Term Adjustment Event; and
b) Each of the Inverse Fixed Terms shall be adjusted to
the value determined by multiplying (x) such Inverse Fixed
Term immediately prior to such Conversion Term Adjustment
Event, by (y) a fraction, the numerator of which is the
number of shares
of Common Stock outstanding immediately after such Conversion
Term Adjustment Event, and the denominator of which is the
number of shares of Common Stock outstanding immediately
prior to such Conversion Term Adjustment Event.
2. If the Corporation shall issue Convertible Securities to
all holders of its outstanding Common Stock (other than pursuant to
any rights agreement in connection with a stockholder rights plan
approved by the Board of Directors), without payment of additional
consideration by such holders, entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe
for or purchase shares of Common Stock at a price per share that is
lower than the Trading Price as set forth in the most recent
Conversion Ratio Certificate prior to the record date mentioned
below (or, if no Conversion Ratio Certificate has yet been
provided, equal
to the Base Price immediately prior to such record date) (a
"Discounted Stock Adjustment Event"):
a) Each of the Fixed Terms shall be adjusted to the value
determined by multiplying (x) such term immediately prior to
such Discounted Stock Adjustment Event, by (y) a fraction,
(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the date of such Discounted Stock
Adjustment Event plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock
so offered would purchase at the price per share of Common
Stock equal to the Trading Price as set forth in the most
recent Conversion Ratio Certificate prior to the record date
mentioned
below (or, if no Conversion Ratio Certificate has yet been
provided, equal to the Base Price immediately prior to such
record date), and (ii) the denominator of which shall be the
number of shares of Common Stock outstanding on the date of
such Discounted Stock Adjustment Event plus the number of
additional shares of Common Stock offered for subscription or
purchase.
b) Each of the Inverse Fixed Terms shall be adjusted to
the
value determined by multiplying (x) such term immediately
prior
to such Discounted Stock Adjustment Event, by (y) a fraction,
(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the date of such Discounted Stock
Adjustment Event plus the number of additional shares of
Common
Stock offered for subscription or purchase, and (ii) the
denominator of which shall be the number of shares of Common
Stock outstanding on the date of such Discounted Stock
Adjustment Event plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock
so
offered would purchase at the price per share of Common Stock
equal to the Trading Price as set forth in the most recent
Conversion Ratio Certificate prior to the record date
mentioned
below (or, if no Conversion Ratio Certificate has yet been
provided, equal to the Base Price immediately prior to such
record date).
Such adjustment shall be made whenever such Convertible Securities
are issued, and shall become effective immediately on the date of
issuance retroactive to the record date for the determination of
stockholders entitled to receive such Convertible Securities.
3. If the Corporation shall pay any Regular Dividend or
Extraordinary Dividend (a "Dividend Adjustment Event"):
a) Each of the Fixed Terms shall be adjusted to such value
determined by multiplying (x) such term immediately prior to
such Dividend Adjustment Event, by (y) a fraction, (i) the
numerator of which shall be the Trading Price immediately
prior
to such Dividend Adjustment Event minus the per share amount
received by holders of Common Stock in connection with such
dividend, and (ii) the denominator of which shall be the
Trading Price immediately prior to such Dividend Adjustment
Event.
b) Each of the Inverse Fixed Terms shall be adjusted to
such value determined by multiplying (x) such term immediately
prior to such Dividend Adjustment Event, by (y) a fraction,
(i) the numerator of which shall be the Trading Price
immediately prior to such Dividend Adjustment Event, and
(ii) the denominator of which shall be the Trading Price
immediately prior to such Dividend Adjustment Event minus the
per share amount received by holders of Class R Stock in
connection with such dividend.
Any non-cash portions of an Extraordinary Dividend set forth in this
paragraph F.3. shall be based upon the fair market value of such
non-cash portion at the time such Extraordinary Dividend is declared
or paid, as determined in good faith by the Board of Directors.
4. If any capital reorganization or reclassification of the
capital stock of the Corporation, or consolidation or merger of the
Corporation with another corporation, or share exchange involving
the
outstanding shares of the Corporation's capital stock or the sale of
all or substantially all of its assets to another corporation shall
be effected in such a way that holders of Common Stock shall be
entitled to receive stock, securities, cash or other property with
respect to or in exchange for Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger, share
exchange or sale, lawful and adequate provision shall be made
whereby
the holders of the Class R Stock shall have the right to acquire and
receive upon conversion of the Class R Stock (after and subject to
the rights of holders of Preferred Stock, if any), such shares of
stock, securities, cash or other property issuable or payable (as
part of the reorganization, reclassification, consolidation, merger,
share exchange or sale) with respect to or in exchange for such
number of outstanding shares of Common Stock as would have been
received upon conversion of the Class R Stock at the Conversion
Ratio
immediately prior to such event. The Corporation shall not effect
any
such consolidation, merger or sale, unless prior to the consummation
thereof the successor corporation (if other than the Corporation)
resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument mailed or
delivered to the holders of the Class R Stock at the last address of
each such holder appearing on the books of the Corporation, the
obligation to deliver to each such holder such shares of stock,
securities or assets as, in accordance with the foregoing
provisions,
such holder may be entitled to receive upon conversion of such
holder's shares of Class R Stock.
5. The Corporation shall not effect a reclassification of the
Class R Stock without the approval of holders of a majority of the
shares of Class R Stock.
6. The provisions of this paragraph F. shall not apply to any
Common Stock issued, issuable or deemed outstanding pursuant hereto:
(a) to any person pursuant to any stock option, stock purchase or
similar plan or arrangement for the benefit of employees of the
Corporation or its subsidiaries in effect on the Initial Issuance
Date or thereafter adopted by the Board of Directors of the
Corporation; (b) pursuant to options, warrants and conversion rights
in existence on the Initial Issuance Date; or (c) on conversion of
the Class R Stock.
7. In the event of:
a) the occurrence of any event causing the adjustment of
the Fixed Term or any Inverse Fixed Term pursuant to paragraphs
F.1., F.2. or F.3. hereof; or
b) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation,
including any subdivision or combination of its outstanding
shares of Common Stock, or consolidation or merger of the
Corporation with, or sale of all or substantially all of its
assets to, another corporation; or
c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation; or
d) the occurrence of a Change of Control
then, in connection with such event, the Corporation shall give
to the holders of the Class R Stock:
(1) in the case of (a), (b), or (c) above, at leas
twenty (20) days prior written notice of the date on which the
books of the Corporation shall close or a record shall be taken
for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, provided that if the
Class R Stock is Publicly Traded, such notice must be given
prior to the end of the Public Conversion Period prior to such
record date;
(2) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, at least twenty (20) days prior
written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause shall also
specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common
Stock shall be entitled thereto, and shall also specify the
date
on which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification
consolidation, merger, sale, dissolution, liquidation or
winding
up, as the case may be; and
(3) in the case of d) above, five days after such
Change of Control, unless notice is required sooner by
(1) above; provided that if stockholder approval is required to
effect such Change of Control, notice shall be provided
concurrently with the notice to stockholders in connection with
obtaining such stockholder approval.
Each such written notice shall be given by first class mail, postage
prepaid, addressed to the holders of the Class R Stock at the
address
of each such holder as shown on the books of the Corporation.
8. If any event occurs as to which, in the opinion of the
Board
of Directors of the Corporation, the provisions of this paragraph F.
are not strictly applicable or if strictly applicable would not
fairly protect the rights of the holders of the Class R Stock in
accordance with the essential intent and principles of such
provisions, then the Board of Directors shall make an adjustment in
the application of such provisions, in accordance with such
essential
intent and principles, so as to protect such rights as aforesaid.
Upon the occurrence of any such adjustment pursuant to this
paragraph
F.8., the Corporation shall give notice to the holders of Class R
Stock as provided in paragraph F.7(1), F.7(2) or F.7(3) hereof, as
appropriate. All calculations and determinations required to be made
by the Corporation pursuant hereto shall be made by the Corporation
in good faith. All such calculations and determinations shall be
conclusive unless otherwise specifically provided hereby.
G. Rank.
The Class R Stock shall, with respect to dividend distributions
and with respect to distributions of assets and rights upon the
liquidation, winding up and dissolution of the Corporation, rank on
a parity with Common Stock and junior to Preferred Stock.
H. Dividends.
1. After dividends payable on any Preferred Stock have been
declared and set aside on such Preferred Stock having a preference
over the Common Stock and Class R Stock with respect to the payment
of such dividends, holders of Class R Stock shall only be entitled
to
receive dividends, out of any assets or funds legally available
therefor, in an amount per share of Class R Stock (and
proportionally
to such amount for fractional shares thereof) as set forth below:
a) If and when a Regular Dividend is declared, an amount
which is equal to (i) the Conversion Ratio then in effect
multiplied by (ii) the aggregate per share amount of such
Regular Dividend declared on a share of Common Stock; and
b) Subject to Paragraph K. hereof, if and when an
Extraordinary Dividend is declared, an amount which is equal
to
(i) the Conversion Ratio then in effect multiplied by
(ii) one-fourth of the sum of (A) the aggregate per share
amount of all cash portions of such Extraordinary Dividend
plus (B) the aggregate per share amount (based upon the fair
market value of the non-cash portion of such Extraordinary
Dividend at the time such Extraordinary Dividend is declared
or
paid as determined in good faith by the Board of Directors) of
all non-cash portions of such Extraordinary Dividend, in each
case as declared on a share of Common Stock.
Such dividends shall be declared and paid contemporaneously with the
declaration and payment of the related dividend on the Common Stock;
and the foregoing are the only times when dividends shall be
declared
and paid with respect to the Class R Stock.
2. All dividends paid with respect to shares of Class R Stock
pursuant to this paragraph H. shall be paid pro rata and in like
manner to all of the holders entitled thereto.
3. No Regular or Extraordinary Dividends shall be declared by
the Board of Directors or paid or set apart for payment by the
Corporation on Common Stock unless, contemporaneously therewith, a
like ratable dividend calculated in accordance with this paragraph
H.
is declared and paid, or declared and a sum set apart sufficient for
such payment, on the Class R Stock, payable as set forth herein.
I. Liquidation Rights.
1. In the event of a Liquidation, the holders of Class R Stock
then outstanding shall be entitled to be paid ratably out of the
assets and funds of the Corporation legally available for
distribution to its stockholders, after and subject to the payment
in
full of all amounts required to be distributed to the holders of any
Preferred Stock upon such Liquidation, an amount equal to (a) the
Liquidation Ratio then in effect multiplied by (b) the aggregate
amount of all assets and funds remaining available for distribution
to holders of Common Stock and Class R Stock.
J. Voting.
Each issued and outstanding share of Class R Stock (and fraction
thereof) shall be entitled to vote only (i) for the election of
directors,
and (ii) as required by law. On matters on which the holders of Class R
Stock are entitled to vote, (a) each issued and outstanding share of
Class R Stock shall be entitled to the number of votes equal to the
Conversion Ratio as of the record date for determination of stockholders
entitled to vote on such matter, and (b) each issued and outstanding
fraction of a share of Class R Stock shall be entitled to (x) such
fraction, multiplied by (y) the number of votes equal to the Conversion
Ratio as of the record date for determination of stockholders entitled to
vote on such matter. Except as required by law, holders of Class R Stock
shall vote together with the holders of Common Stock as a single class on
all matters on which holders of Class R Stock are entitled to vote.
K. Forced Conversion.
1. In the event that the Board of Directors determines that
the Corporation should convert all issued and outstanding shares of
Class R Stock (and fractions thereof) into Common Stock, the
Corporation may at its option, elect to cause all, but not less than
all, shares of Class R Stock (and fractions thereof) to be converted
(a "Forced Conversion") into Common Stock at the Conversion Ratio
(i)
in the event that the Common Stock is not Publicly Traded, set forth
in the Private Conversion Ratio Certificate delivered pursuant to
paragraph E.3. hereof as a result of such determination by the Board
of Directors, and (ii) in the event that the Common Stock is
Publicly
Traded, in effect on the date the Board of Directors determines to
cause such a conversion; provided, however, that if such Conversion
Ratio in effect was calculated using a Conversion Value of less than
$25.00, such Conversion Ratio shall be recalculated using a
Conversion Value of $25.00.
2. All holders of record of shares of Class R Stock (or
fractions thereof) will be given at least ten (10) days prior
written
notice of the date fixed and the place designated for such
conversion
of Class R Stock pursuant to this paragraph K. Such notice shall be
sent by mail, first class, postage prepaid, to each record holder of
shares of Class R Stock (or fractions thereof) at such holder's
address appearing on the stock register. On or before the date fixed
for conversion each holder of shares of Class R Stock (or fractions
thereof) shall surrender his or its certificate or certificates for
all such shares to the Corporation at the place designated in such
notice, and shall thereafter receive certificates for the number of
shares of Common Stock and cash in lieu of any fractional shares of
Common Stock to which such holder is entitled pursuant to this
paragraph K. On the date fixed for conversion, all rights with
respect to the Class R Stock so converted will terminate, except
only
the rights of the holders thereof, upon surrender of their
certificate or certificates therefor, to receive certificates for
the
number of shares of Common Stock into which such Class R Stock has
been converted, cash as provided in paragraph D.4. hereof in respect
of any fraction of a share of Common Stock otherwise issuable upon
such conversion and payment of any accrued and unpaid dividends
thereon. If so required by the Corporation, certificates surrendered
for conversion shall be endorsed or accompanied by written
instrument
or instruments of transfer, in form satisfactory to the Corporation,
duly executed by the registered holder or by his attorneys duly
authorized in writing. All certificates evidencing shares of Class R
Stock (or fractions thereof) which are required to be surrendered
for
conversion in accordance with the provisions hereof shall, from and
after the date fixed for conversion, be deemed to have been retired
and canceled and the shares of Class R Stock (or fractions thereof)
represented thereby converted into Common Stock for all purposes,
notwithstanding the failure of the holder or holders thereof to
surrender such certificates on or prior to such date. As soon as
practicable after the date of such conversion and the surrender of
the certificate or certificates for Class R Stock as aforesaid, the
Corporation shall cause to be issued and delivered to such holder,
or
on such holder's written order, a certificate or certificates for
the
number of full shares of Common Stock issuable on such conversion in
accordance with the provisions hereof, cash as provided in paragraph
D.4. hereof in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion and payment of any accrued
and unpaid dividends thereon.
L. Mandatory Conversion.
1. Each share of Class R Stock (and fraction thereof)
outstanding as of the Mandatory Conversion Date shall,
automatically,
and without further action by or on behalf of the Corporation, the
Corporation's transfer agent or the holder of such share of Class R
Stock, be converted (the "Mandatory Conversion") into shares of
Common Stock (and cash in lieu of any fractions of shares of Common
Stock as provided in paragraph D.4. hereof) at the Conversion Ratio
in effect as of such Mandatory Conversion Date.
2. All holders of record of shares of Class R Stock (or
fraction thereof) will be given written notice at least ten
(10) days
prior to the Mandatory Conversion Date stating the place designated
for mandatory conversion of all of such shares of Class R Stock
pursuant to this paragraph L. Such notice shall be sent by mail,
first class, postage prepaid, to each record holder of shares of
Class R Stock (or fraction thereof) at such holder's address
appearing on the stock register. On or before the Mandatory
Conversion Date, each holder of Class R Stock shall surrender his or
its certificate or certificates for all such shares (or fractions
thereof) to the Corporation at the place designated in such notice,
and shall thereafter receive certificates for the number of shares
of
Common Stock and cash in lieu of any fractional shares of Common
Stock to which such holder is entitled pursuant to this paragraph L.
On the date fixed for conversion, all rights with respect to the
Class R Stock so converted will terminate, except only the rights of
the holders thereof, upon surrender of their certificate or
certificates therefor, to receive certificates for the number of
shares of Common Stock into which such Class R Stock has been
converted, cash as provided in paragraph D.4. hereof in respect of
any fraction of a share of Common Stock otherwise issuable upon such
conversion and payment of any accrued and unpaid dividends thereon.
If so required by the Corporation, certificates surrendered for
conversion shall be endorsed or accompanied by written instrument or
instruments of transfer, in form satisfactory to the Corporation,
duly executed by the registered holder or by his attorneys duly
authorized in writing. All certificates evidencing shares of Class R
Stock (and fractions thereof) which are required to be surrendered
for conversion in accordance with the provisions hereof shall, from
and after the date fixed for conversion, be deemed to have been
retired and canceled and the shares of Class R Stock (and fractions
thereof) represented thereby converted into Common Stock for all
purposes, notwithstanding the failure of the holder or holders
thereof to surrender such certificates on or prior to such date. As
soon as practicable after the date of such Mandatory Conversion and
the surrender of the certificate or certificates for Class R Stock
as
aforesaid, the Corporation shall cause to be issued and delivered to
such holder, or on such holder's written order, a certificate or
certificates for the number of full shares of Common Stock issuable
on such conversion in accordance with the provisions hereof, cash as
provided in paragraph D.4. hereof in respect of any fraction of a
share of Common Stock otherwise issuable upon such conversion and
payment of any accrued and unpaid dividends thereon.
N. Taxes.
The Corporation shall pay all documentary stamp taxes attributable
to
the initial issuance of Class R Stock and of the shares of Common Stock
issuable upon conversion of Class R Stock; provided that the Corporation
shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue of any certificates
representing shares of Class R Stock (or fractions thereof) or Common
Stock in a name other than the holder of the certificate or certificates
surrendered upon conversion of Class R Stock, and the Corporation shall
not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax has been paid.
ARTICLE VII
PREFERRED STOCK
The Preferred Stock may be issued from time to time as herein provided in
one or more series. The designations, relative rights, preferences and
limitations of the Preferred Stock, and particularly of the shares of each
series thereof, may, to the extent permitted by law, be similar to or differ
from those of any other series. The Board of Directors is hereby expressly
granted authority, subject to the provisions of this Article VII, to fix, from
time to time before issuance thereof, the number of shares in each series and
all designations, relative rights, preferences and limitations of the shares
in each such series, including, but without limiting the generality of the
foregoing, the following:
A. the designation of the series and the number of shares to
constitute each series;
B. the dividend rate on the shares of each series, conditions on
which and times at which dividends are payable, whether dividends shall
be cumulative, and the preference or relation (if any) with respect to
such dividends (including preferences over dividends on the Common Stock
or any other class or classes);
C. whether the series will be redeemable (at the option of the
Corporation or the holders of such shares or both, or upon the happening
of a specified event) and, if so, the redemption prices and the
conditions and times upon which redemption may take place and whether
for
cash, property or rights, including securities of the Corporation or
another corporation;
D the terms and amount of any sinking, retirement or purchase fund;
E. the conversion or exchange rights (at the option of the
Corporation or the holders of such shares or both, or upon the happening
of a specified event), if any, including the conversion or exchange
price and other terms of conversion or exchange;
F. the voting rights, if any (other than any voting rights that the
Preferred Stock may have as a matter of law);
G. any restrictions on the issue or reissue or sale of additional
Preferred Stock;
H. the rights of the holders upon voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation
(including preferences over the Common Stock or any other class or
classes or series of stock); and
I. such other special rights and privileges, if any, for the
benefit
of the holders of Preferred Stock, as shall not be inconsistent with
provisions of this Restated Certificate of Incorporation.
All shares of Preferred Stock of the same series shall be identical in
all respects, except that shares of any one series issued at different times
may differ as to dates, if any, from which dividends thereon may accumulate.
All shares of Preferred Stock of all series shall be of equal rank and shall
be identical in all respects except that any series may differ from any other
series with respect to any one or more of the designations, relative rights,
preferences and limitations described or referred to in subparagraphs A. to
I. inclusive above.
ARTICLE VIII
DIRECTORS
A. The Board of Directors shall consist of no fewer than six
persons
and no more than fifteen persons, and such number shall be fixed by, or
in the manner provided in, the By-laws of the Corporation.
B. Upon the Effective Time, the Board of Directors shall be divided
into three classes to be designated as Class I, Class II and Class III.
The Board of Directors, by resolution, shall designate the class in
which each of the directors then in office shall serve upon such
classification. The terms of office of the classes of directors so
designated by the Board of Directors shall expire at the times of the
annual meetings of the stockholders as follows: Class I on the first
annual meeting of stockholders following the Effective Time, Class II
on
the second annual meeting following the Effective Time and Class III on
the third annual meeting following the Effective Time, or thereafter in
each case when their respective successors are elected and qualified.
At
each subsequent annual election, the directors chosen to succeed those
whose terms are expiring shall be identified as being of the same class
as the directors whom they succeed, and shall be elected for a term
expiring at the time of the third succeeding annual meeting of
stockholders, or thereafter in each case when their respective
successors are elected and qualified. The number of directorships shall
be apportioned among the classes so as to maintain the classes as
nearly equal in number as possible.
C. A director may be removed from office only for cause and only by
vote of at least a majority of the outstanding stock entitled to vote
in an election of directors.
D. Any vacancy on the Board of Directors, however resulting, may be
filled only 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.
ARTICLE IX
DUTY OF THE CORPORATION TO REPURCHASE COMMON STOCK
A. Subject to the limitations set forth below in this Article
IX,
and only until such time as the Common Stock has become Publicly
Traded, holders of Common Stock may at any time on or prior to the
fifteenth day of any calendar month offer to sell part or all of their
shares of Common Stock to the Corporation by delivering the
certificate
or certificates for such stock with a written notice offering such
stock to the Corporation. Any such offer shall be accepted by the
Corporation, and payment shall be made for such stock within 60 days
after receipt of such certificates and such written notice by the
corporation, without interest.
B. Suspension of Repurchase Duties.
If the Board of Directors determines that the Formula Value at the
end of the fiscal year during which such determination is made is
likely to be less than (i) the Formula Value at the end of the prior
fiscal year less (ii) the aggregate amount of dividends declared on
the
Common Stock since the end of the prior fiscal year, the Board of
Directors may suspend the Corporation's duty to repurchase shares of
Common Stock in accordance with this Article IX. Any such suspension
shall not extend for a period longer than 365 days from the date of
the
Board of Directors' declaration of suspension. During any such
suspension period, the Corporation shall not repurchase any shares of
Common Stock tendered for repurchase pursuant to paragraph A. of this
Article IX.
C. Limitations on Cash Repurchase Duties.
1. For purposes of this paragraph C., the "10% Threshold"
means
a number of shares of Common Stock equal to 10% of the aggregate
number of such shares outstanding as of the end of the fiscal year
ending immediately prior to the date of determination.
2. If, after taking into account the number of shares of
Common
Stock tendered for repurchase by the Corporation during the first 15
days of any calendar month (the "Tendered Shares"), the aggregate
number of shares of such stock that have been tendered for
repurchase
during the fiscal year during which such month falls equals or
exceeds the 10% Threshold, the Board of Directors may declare that
cash payments for the repurchase of Common Stock are not in the best
interests of the Corporation. The Board of Directors shall make any
such declaration prior to the last day of the relevant calendar
month
and shall promptly provide to the holders of Tendered Shares with
respect to such calendar month a notice specifying:
(a) the percentage (the "Specified Percentage") of the
Tendered Shares that will be purchased for cash (which may, in the
discretion of the Board of Directors, be a percentage calculated to
limit the aggregate number of shares purchased for cash during the
relevant fiscal year to the 10% Threshold or a greater percentage);
and
(b) the terms (including interest rate and prepayment
rights, if any) of promissory notes maturing on a date to be
determined by the Board of Directors, but not later than ten years
after the date upon which the holder of such note tendered the
Tendered Shares, which will be issued by the Corporation in
payment
for any Tendered Shares that are not purchased for cash and the
tender of which is not withdrawn pursuant to subparagraph
3, below.
3. Upon receipt of the notice required by subparagraph 2, each
holder of Tendered Shares may elect to withdraw such holder's
tender of a number of shares of Common Stock not exceeding the
number of shares in excess of the number determined by multiplying
the Specified Percentage by the number of shares tendered by such
holder. Notice of any such election shall be provided to the
Corporation not later than ten days after the date upon which such
holder receives the notice provided by the Corporation pursuant to
subparagraph 2, above.
4. After the date of any declaration by the Board of Directors
pursuant to subparagraph 2, the Corporation shall continue to be
obligated to purchase shares of Common Stock subsequently tendered
for repurchase during the relevant fiscal year, but payment for
any
such shares shall be made in the form of a promissory note
maturing
on a date to be determined by the Board of Directors, but not
later
than ten years after the date upon which such shares are tendered.
The terms of any such notes shall be determined by the Board of
Directors at the time at which any of the Common Stock is
tendered;
provided, however, that the Corporation shall provide notice to
any
tendering stockholder of the terms of such note not later than ten
days after the date of tender, and such stockholder shall be
entitled to withdraw the tender of any or all of such shares by
providing written notice of such withdrawal to the Corporation not
later than ten days after the date upon which such holder receives
the notice of such terms from the Corporation.
D. Common Stock Per Share Price.
Subject to the limitations set forth in this Article IX, the
Corporation shall purchase any share of Common Stock pursuant to this
Article IX for a price equal to the Common Stock Per Share Price.
E. Additional Purchase Price
If the Common Stock Per Share Price as in effect at the time of any
such purchase of a share of Common Stock by the Corporation pursuant to
this Article IX is less than such Common Stock Per Share Price would have
been if it had been determined in accordance with the balance sheet
classifications of liabilities and stockholders' equity used by the
Corporation immediately prior to the Exchange Date (as defined below) in
preparing the Corporation's financial statements, the Corporation shall,
subject to the limitations set forth in this Article IX, pay an amount
for
such share, in addition to the Common Stock Per Share Price paid therefor
in accordance with paragraph D., equal to the amount of such deficiency.
F. Definitions for purposes of Article IX.
1. "Common Stock Per Share Price" with respect to any share
of Common Stock, means the amount determined by dividing:
(a) the sum of (i) the Formula Value plus (ii) the face
amount of any outstanding Convertible Debentures, determined
as of the fiscal year end immediately preceding the date of
determination (the "prior year end"); by
(b) the sum of (i) the total number of issued and
outstanding shares of Common Stock, plus (ii) the total
number
of shares reserved for the conversion of outstanding
Convertible Debentures convertible into Common Stock, in each
case determined as of the prior year end; and
deducting from the quotient (rounded to the nearest $0.05)
the amount of any dividends per share declared on Common
Stock subsequent to the prior year end.
2. "Convertible Debenture" means any debenture or other
instrument evidencing indebtedness of the Corporation convertible at
any time into shares of Common Stock.
3. "Formula Value" means:
(a)(i) if such Formula Value is being determined at or
prior to the end of the fiscal year during which the date of
the
exchange (the "Exchange Date") of the shares of the
Corporation's then outstanding Class C Construction & Mining
Group Restricted Redeemable Convertible Exchangeable Common
Stock, par value $.0625 per share, for shares of common stock
of
PKS Holdings, Inc. has occurred, the total stockholders' equity
of the Corporation and its consolidated Subsidiaries,
determined
by independent certified public accountants in conformity with
generally accepted accounting principles applied on a
consistent
basis as of the Exchange Date, after giving effect to the
exchange on that date; or
(ii) if such Formula Value is being determined after the
end of the fiscal year during which the Exchange Date occurs,
the total stockholders' equity as shown on the consolidated
balance sheet contained in the Consolidated Financial
Statements
of the Corporation and consolidated Subsidiaries, prepared in
conformity with generally accepted accounting principles
applied
on a consistent basis for the Corporation and its consolidated
Subsidiaries as of the fiscal year end immediately preceding
the
date of determination (the "prior year end") and audited and
certified by an independent firm of certified public
accountants
selected and engaged by the Board of Directors; minus
(b) the sum of (x) such total stockholders' equity
attributable to any issued and outstanding Preferred Stock,
plus
(y) the amount of any accrued, accumulated and undeclared
dividends thereon, all as of the date of determination.
4. "Subsidiary" means a corporation, partnership or other
entity with respect to which the Corporation holds, directly or
indirectly, at least a majority of the issued and outstanding
capital
stock or other equity interests, measured in terms of total dollar
value if such entity has outstanding more than one class of capital
stock or other equity interests.
G. Notwithstanding any other provision hereof with respect to
the
Common Stock, other than as set forth in Article V, paragraph D., in no
event shall (i) any holder of Common Stock, Non-Redeemable Series have
any
right to require the Corporation to repurchase such holder's shares of
Common Stock, Non-Redeemable Series or (ii) Common Stock, Non-Redeemable
Series be subject to any redemption.
ARTICLE X
STOCKHOLDERS' VOTE
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.
ARTICLE XI
INDEMNIFICATION
The Corporation shall indemnify each person who is or was a director,
officer or employee of the Corporation (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request
of the Corporation as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, to the fullest extent
permitted under applicable law.
The indemnification provided by this Article XI shall not be deemed
exclusive of any other rights to which any of those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE XII
LIMITATION OF LIABILITY
A director of this Corporation shall not be personally 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 which 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 is amended after approval by the stockholders of this Article XII to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL as
so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
ARTICLE XIV
SPECIAL MEETINGS
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
President, the Chief Executive Officer or the Chairman of the Board of
Directors. Special meetings of the stockholders of the Corporation may not be
called by any other person or persons.
ARTICLE XV
RATIFICATION BY STOCKHOLDERS
Any contract, transaction or act of the Corporation or of the directors,
which shall be ratified by a majority of a quorum of the stockholders then
entitled to vote at any annual meeting or at any special meeting called for
such purpose, shall, so far as permitted by law and by this Certificate of
Incorporation, be as valid and as binding as though ratified by every
stockholder entitled to vote at such meeting.
ARTICLE XVI
AMENDMENTS OF CERTIFICATE
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Second Restated Certificate of Incorporation or in
any amendment hereto by the affirmative vote of a majority of the outstanding
stock entitled to vote thereon; provided, however, that the provisions of this
Second Restated Certificate of Incorporation requiring for action by the
stockholders a vote of at least sixty-six and two-thirds percent (66 2/3%)
shall not be amended except by such vote; and provided further, that (A) the
formulae for determining Formula Value or Common Stock Per Share Price shall
not be amended except by the affirmative vote of at least eighty percent (80%)
of the outstanding stock entitled to vote thereon and (B) this Article XVI
shall not be amended except by the affirmative vote of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding stock entitled to vote thereon.
ARTICLE XVII
CREDITORS
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof on the application of
any receiver or receivers appointed for this Corporation under the provisions
of section 291 of Title 8 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation
under the provisions of Section 279 of Title 8 of the DGCL, order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE XVIII
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 at least sixty-six and two-thirds percent (66 2/3%) of the
outstanding stock entitled to vote thereon.
IN WITNESS WHEREOF, the Corporation has caused this Second Restated
Certificate of Incorporation to be signed by James Q. Crowe, its Executive
Vice President, this 30th day of March, 1998.
By: /s/ James Q. Crowe
President
Exhibit 2
BY-LAWS
OF
LEVEL 3 COMMUNICATIONS, INC.
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE AND AGENT. The registered office of
Peter Kiewit Sons', Inc. (the "Corporation") is at 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The registered agent at that
address is The Corporation Trust Company.
SECTION 1.2. OTHER OFFICES. The Corporation may have other offices from
time to time as the directors may designate or as the business may require.
ARTICLE II.
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETINGS. The annual meeting of stockholders shall
be held at such place, date, and time as is designated by the Board of
Directors. At this meeting, directors shall be elected and any other proper
business may be transacted.
SECTION 2.2. SPECIAL MEETINGS. Special meetings of the stockholders of
the Corporation may be called for any purpose or purposes by the Chairman of
the Board, the President, the Chief Executive Officer or by a majority of the
directors. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice of the meeting.
SECTION 2.3. PLACE OF MEETINGS. Meetings of stockholders shall be held
at such place, either within or without the State of Delaware, as shall be
designated by those calling the meeting.
SECTION 2.4. NOTICES OF MEETINGS. A written notice shall be given to
each stockholder entitled to vote at the meeting not less than 10 nor more
than 60 days before each annual or special meeting. The notice shall state
the place, date, and hour of the meeting. The notice of a special meeting
shall state the purposes for which the meeting has been called. Written
notices may be given by either personal delivery or mail. If mailed, notice
is given when deposited in the United States mail, postage prepaid directed to
the stockholder at his address as it appears on the records of the
Corporation. No notice is required to be given to a stockholder to whom
notices of two consecutive annual meetings (and any other written notice sent
between those meetings) have been mailed addressed to that person at his
address as shown on the corporate records and have been returned
undeliverable.
SECTION 2.5. WAIVER OF NOTICE. A written waiver, signed by a
stockholder, whether before or after an annual or special meeting, shall be
equivalent to the giving of such notice. Attendance by a stockholder, without
objection to the notice, whether in person or by proxy, at an annual or
special meeting shall constitute waiver of notice of such meeting.
SECTION 2.6. VOTING LIST. At least ten days before each stockholders'
meeting, the Secretary shall prepare a complete list of stockholders entitled
to vote at such meeting. Arranged in alphabetical order, the list shall show
the name, address, and number of shares of each stockholder entitled to vote.
For at least 10 days before the meeting, the list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, at (1) the meeting place, or (2) at another place
within the city of the meeting which shall be specified in the notice of the
meeting. The list shall also be available at the meeting for inspection by
any stockholder present.
SECTION 2.7. RECORD DATE. The Board of Directors may fix a record date
to determine which stockholders are entitled to: (a) notice of a stockholders'
meeting; (b) vote at a stockholders' meeting; (c) receive payment for a
dividend; (d) receive a distribution or allotment of rights; (e) exercise any
rights in respect of any change, conversion, or exchange of stock; or
(f)notice for the purpose of any other lawful action. The record date shall
not be less than 10 nor more than 60 days before any such action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
SECTION 2.8. Each stockholder eligible to vote may authorize another
person or persons to act for him by proxy. No proxy shall be valid after
three years from its date, unless the proxy provides for a longer period.
SECTION 2.9. VOTING RIGHTS. Unless otherwise provided in the Second
Restated Certificate of Incorporation, each stockholder eligible to vote shall
have one vote for each share of capital stock held by such stockholder.
SECTION 2.10. QUORUM AND REQUIRED VOTE. A majority of the shares
entitled to vote, present in person or represented by proxy, shall constitute
a quorum at a meeting of stockholders. Unless otherwise required by the
Second Restated Certificate of Incorporation or by statute, the affirmative
vote of the majority of shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders. However, if less than a quorum but more than one-third of all
shares eligible to vote is present at a scheduled meeting, a majority of the
shares present may adjourn the scheduled meeting.
SECTION 2.11. ADJOURNED MEETINGS. No new notice is required if the time
and place of the adjourned meeting is announced at the meeting at which the
adjournment is taken and if the adjournment is for not more than 30 days. At
an adjourned meeting, the stockholders may transact any business which might
have been transacted at the original meeting.
SECTION 2.12. NO ACTION WITHOUT A MEETING. Any action required or
permitted at a stockholders' meeting may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, and may
not be taken by a written consent of the stockholders.
SECTION 2.13. CONDUCT OF MEETINGS.
(a) The President of the Corporation shall preside at each meeting of
the stockholders. In the absence of the President, the meeting shall be
chaired by an officer of the Corporation in accordance with the following
order: Chairman of the Board, any Executive Vice President, any Senior Vice
President and any Vice President. In the absence of any of such officers, the
meeting shall be chaired by a person chosen by a majority in interest of the
stockholders present in person or represented by proxy and entitled to vote
thereat, who shall act as chairman. The Secretary or in his or her absence an
Assistant Secretary or a person whom the chairman of the meeting shall appoint
shall act as secretary of the meeting and keep a record of the proceedings
thereof.
(b) The Board of Directors shall be entitled to make such rules or
regulations for the conduct of meeting of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations
of the Board of Directors, if any, the chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of the chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting including,
without limitation, establishing an agenda or order of business for the
meeting, rules and procedures for maintaining order at the meeting and the
safety of those present, limitations on participation in such meeting to
stockholders of record of the Corporation and their duly authorized and
constituted proxies, and such other persons as the chairman shall permit,
restrictions on entry to the meeting after the time fixed for the commencement
thereof, limitations an the time allotted to questions or comment by
participants and regulation of the opening and closing of the ballot. Unless,
and to the extent, determined by the Board of Directors or the chairman of the
meeting, meetings of stockholders shall not be required to be held in
accordance with rules of parliamentary procedure.
SECTION 2.14. ADVANCE NOTIFICATION OF BUSINESS TO BE TRANSACTED AT
STOCKHOLDER MEETINGS.
(a) No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise properly brought
before the annual meeting by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this section.
(b) In addition to any other applicable requirements for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary.
(c) To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive office of the
Corporation not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, notice
by the stockholder in order to be timely must be so received not later than
the close of business on the tenth day following the day on which such notice
of the date of the annual meeting was mailed or public disclosure of the date
of the annual meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such
stockholder, (iii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record by such
stockholder, (iv) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names and
addresses) in connection with the proposal of such business by such
stockholder and any material interest of such stockholder in such business and
(v) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
(e) No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this section; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this section shall be deemed to preclude discussion by
any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE
DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of this
Corporation shall be managed by its Board of Directors.
SECTION 3.2. NUMBER AND QUALIFICATIONS. The Board of Directors shall
fix, by resolution from time to time, the number of directors which shall
constitute the whole Board of Directors; provided, however, that such number
shall be no fewer than six and no more than fifteen. Directors need not be
stockholders.
SECTION 3.3. ELECTION AND TERM. Upon the original filing of the Second
Restated Certificate of Incorporation (the "Effective Time"), the Board of
Directors shall be divided into three classes to be designated as Class I,
Class II and Class III. The Board of Directors, by resolution, shall
designate the class in which each of the directors then in office shall serve
upon such classification. The terms of office of the classes of directors so
designated by the Board of Directors shall expire at the times of the annual
meetings of the stockholders as follows: Class I on the first annual meeting
of stockholders following the Effective Time, Class II on the second annual
meeting following the Effective Time and Class III on the third annual meeting
following the Effective Time, or thereafter in each case when their respective
successors are elected and qualified. At each subsequent annual election, the
directors chosen to succeed those whose terms are expiring shall be identified
as being of the same class as the directors whom they succeed, and shall be
elected for a term expiring at the time of the third succeeding annual meeting
of stockholders, or thereafter in each case when their respective successors
are elected and qualified. The number of directorships shall be apportioned
among the classes so as to maintain the classes as nearly equal in number as
possible.
SECTION 3.4. VACANCIES. Vacancies, however resulting, and newly created
directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office,
although less then a quorum, or by a sole remaining director. Any director
elected to fill such a vacancy or newly created directorship shall hold office
for a term that shall coincide with the term of the class to which such
director shall have been elected.
SECTION 3.5. REMOVAL. Subject to any rights of the holders of any
series of Preferred Stock to elect additional directors under specified
circumstances, 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 sixty-six and two-thirds percent (66 2/3%) of the
outstanding stock entitled to vote thereon.
SECTION 3.6. ANNUAL MEETINGS. The Board of Directors may provide by
resolution for the time and place of annual meetings of the Board of
Directors, without notice other than such resolution.
SECTION 3.7. REGULAR MEETINGS. The Board of Directors may provide by
resolution for the time and place of regular meetings of the Board of
Directors, without notice other than such resolution.
SECTION 3.8. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be called by the Chairman of the Board or the President. The
person calling the meeting may fix the specific time and place of the meeting.
SECTION 3.9. NOTICE OF MEETING. Notice of any special meeting of the
Board of Directors shall be given to each director at his business or
residence in writing or by telegram or by telephone communication or by
facsimile transmission. If mailed, such notice shall be deemed adequately
delivered when deposited in the United States mails so addressed, with postage
thereon prepaid, at least five days before such meeting. If by telegram, such
notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph company at least twenty-four hours before such meeting. If by
telephone, the notice shall be given at least twelve hours prior to the time
set for the meeting. If by facsimile transmission, the notice shall be deemed
adequately delivered if transmitted at least twenty-four hours before such
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these By-laws as provided
under Article IX hereof. A meeting of the Board of Directors may be held at
any time without notice if all the directors are present or if those not
present waive notice of the meeting in writing, either before or after such
meeting.
SECTION 3.10. WAIVER OF NOTICE. A written waiver, signed by the
director, whether before or after the meeting of the Board of Directors, shall
be equivalent to the giving of such notice. Attendance by a director, without
objection to the notice, at a meeting of the Board of Directors shall
constitute waiver of notice of such meeting.
SECTION 3.11. TELEPHONE PARTICIPATION. Directors may participate in a
meeting of the Board of Directors by means of conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other. Participation in a meeting of this kind shall constitute presence
in person at the meeting.
SECTION 3.12. QUORUM AND VOTING. A majority of the whole Board of
Directors shall constitute a quorum for the transaction of business. The vote
of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors unless the vote of a
greater number is required by statute, the Second Restated Certificate of
Incorporation, or these By-laws.
SECTION 3.13. ACTION WITHOUT A MEETING. Any action that may be taken at
a meeting of the directors may be taken without a meeting if a consent in
writing, setting forth the action taken, is signed by all directors. (E)
SECTION COMPENSATION. By resolution of the Board of Directors, a director
may be paid a fixed sum, and any expenses, for attendance at a meeting of the
Board of Directors. No such payment shall preclude a director from receiving
compensation for serving the Corporation in any other capacity.
SECTION 3.14. NOMINATION OF DIRECTORS.
(a) Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors may be made at
any annual meeting of stockholders, or at any special meeting of stockholders
called for the purpose of electing directors, (a) by or at the direction of
the Board of Directors (or any duly authorized committee thereof) or (b) by
any stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this section and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
section.
(b) In addition to any other applicable requirements, for a nomination
to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
(c) To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive office of the
Corporation (a) in the case of an annual meeting, not less than 60 days nor
more than 90 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within 30 days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made, whichever first
occurs and (b) in the case of a special meeting of stockholders called for the
purpose of electing directors, not later than the close of business on the
tenth day following the day on which notice of the date of the special meeting
was mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes
to nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment
of the person, (iii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record by the person and
(iv) any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitation of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934 (the "Exchange Act"), and
the rules and regulations promulgated thereunder, and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons
(including their names and addresses) pursuant to which the nominations(s) are
to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitation of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
(e) No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this section. If the chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
ARTICLE IV.
BOARD COMMITTEES
SECTION 4.1. FORMATION OF COMMITTEES. The Board of Directors by
resolution may create committees, each consisting of two or more directors,
which committees shall hold office for such time and have such powers and
perform such duties as may from time to time be assigned to them by the Board
of Directors. Three committees have previously been formed: the executive
committee, the compensation committee and the audit committee.
SECTION 4.2. EXECUTIVE COMMITTEE. The executive committee shall have
all the powers of the Board of Directors in the management of the normal and
ordinary business and affairs of the Corporation at all times when the Board
of Directors is not in session. The executive committee shall have the
following specific powers to:
(a) review and approve business plans of subsidiaries and make
recommendations concerning such plans to the appropriate subsidiary board of
directors; and
(b) delegate authority to one or more persons to act on behalf of the
Corporation or its subsidiaries, whether pursuant to a power of attorney or
otherwise, and to establish policies regarding such delegations of authority.
SECTION 4.3. COMPENSATION COMMITTEE. The compensation committee shall
have the duties to recommend to the Board of Directors: (a) the base salary or
wage ranges of all employees; (b) the amounts and forms of compensation,
including fringe benefits and bonuses, as well as stock options and incentive
compensation rights that apply or may apply to employees; (c) the adoption and
implementation of any new or modified forms of compensation; (d) the
suspension, elimination or restriction of any presently existing forms of
compensation; and (e) plans concerning the orderly succession of officers and
key management personnel.
SECTION 4.4. AUDIT COMMITTEE. None of the members of the audit
committee shall be directly involved in the supervision or management of the
financial affairs of this Corporation or any of its subsidiaries.
(a) The books, records, and accounts of the Corporation may be audited
periodically by independent public accountants. In connection with the audit
process, the audit committee shall have the following duties to:
(i) make recommendations about the appointment, retention, and
termination of independent public accountants;
(ii) make recommendations about the scope of the audit and audit
procedures;
(iii) review for the Board of Directors all recommendations made by
the independent public accountants about accounting methods and matters
which are relevant to the Corporation; and
(iv) review with the independent public accountants those aspects of the
following matters which pertain to the Corporation, upon completion of their
audit: (a) the financial statements and any report or opinion proposed to be
rendered in connection therewith; (b) the independent public accountants'
perceptions of the personnel responsible for the Corporation's financial and
accounting matters; (c) the cooperation which the independent public
accountants receive during the course of their audit; (d) the extent which the
resources of the Corporation were or should be utilized to minimize the audit
fee; (e) any significant transactions which were not in the ordinary, routine,
and regular course of business of the Corporation; (f) any change in
accounting principles, policies or standards; (g) all significant adjustments
proposed by the independent public accountants; (h) general policies and
procedures relating to internal auditing and financial costs which pertain to
the Corporation; and (I) any recommendations which the independent public
accountants may have with respect to internal financial controls, choice of
accounting policies and principles or management reporting systems.
(b) The audit committee shall meet periodically with the staff
responsible for the Corporation's financial and accounting matters to review
and discuss the scope of internal accounting procedures and controls then in
effect and the extent to which any recommendations made by the independent
public accountants or any internal auditors have been implemented.
(c) The audit committee shall direct and supervise any investigation
into any matter brought to its attention within the scope of its duties which
it believes is necessary. The audit committee may retain outside consultants
in connection with any such investigation.
(d) The audit committee shall monitor business practices of the
Corporation as set forth in the written policies of the Corporation, such as
compliance with antitrust policies and other policies, as directed by the
Board of Directors.
(e) The audit committee shall prepare and present to the Board of
Directors a report covering its activities twice yearly at regular meetings of
the Board of Directors or more often, when considered necessary, to report a
material irregularity.
SECTION 4.5. LIMITATIONS ON POWERS. No committee shall have the power
to amend the Second Restated Certificate of Incorporation, amend the By-laws,
declare dividends, adopt an agreement of merger or consolidation, recommend to
the stockholders the sale, lease, or exchange of all or substantially all of
the Corporation's property and assets, recommend to the stockholders a
dissolution of the Corporation or a revocation of a dissolution or authorize
the issuance of stock. No committee shall act contrary to a fundamental
policy or method of conducting the business of the Corporation. No committee
shall have the specific powers conferred upon any other committee by these
By-laws.
SECTION 4.6. GENERAL. Any committee member may be removed by the Board
of Directors at any time without cause. The Board of Directors may designate
a chairman of a committee. The following provisions of the By-laws, which are
applicable to the Board of Directors, shall also govern each Board of
Directors committee: Section 3.4 (vacancies), Section 3.10 (waiver of
notice), Section 3.11 (telephone participation), Section 3.12 (quorum and
voting), and Section 3.13 (action without a meeting). Each committee may
adopt its own rules of procedure and such rules may govern the call, time,
place, and notice of meetings. Each committee may keep appropriate minutes of
such proceedings and shall report all significant actions at regular meetings
of the Board of Directors.
ARTICLE V.
OFFICERS
SECTION 5.1. NUMBER. The officers of the Corporation shall include a
President and a Secretary. The Board of Directors may elect additional
officers and appoint agents as it determines necessary. Any two or more
offices may be held by the same person, except the offices of President and
Secretary. The Board of Directors in its discretion may also elect a Chairman
of the Board.
SECTION 5.2. ELECTION AND QUALIFICATION. The President and Secretary
shall be elected at the annual meeting of the Board of Directors. Other
officers may be elected by the Board of Directors from time to time. The
Chairman of the Board, if any, and the President shall be directors of the
Corporation, and should any one of them cease to be a director, he shall IPSO
FACTO cease to be such officer.
SECTION 5.3. TERM. Each officer shall hold office until his successor
is elected and qualified or until his earlier resignation or removal. Any
officer may resign at any time upon written notice to the Corporation.
SECTION 5.4. REMOVAL. Any officer elected by the Board of Directors may
be removed by a majority of the members of the whole Board of Directors
whenever, in their judgment, the best interest of the Corporation would be
served thereby. No elected officer shall have any contractual rights against
the Corporation for compensation by virtue of such election beyond the date of
the election of his successor, his death, his resignation or his removal,
whichever event shall first occur, except as otherwise provided in an
employment contract or under an employee deferred compensation plan.
SECTION 5.5. VACANCY. Any vacancy in any office from any cause may be
filled for the unexpired portion of the term by the Board of Directors.
SECTION 5.6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
a director and shall preside at all meetings of the Board of Directors at
which he shall be present, and shall have such power and perform such duties
as may from time to time be assigned to him by the Board of Directors.
SECTION 5.7. PRESIDENT. The President shall, when present, preside at
all meetings of the stockholders, and, in the absence of the Chairman of the
Board, at meetings of the Board of Directors. He shall have power to call
special meetings of the stockholders, of the Board of Directors or of the
Executive Committee at any time. He shall be the chief executive officer of
the Corporation, and shall have the general direction of the business, affairs
and property of the Corporation, and of its several officers and shall have
and exercise all such powers and discharge such duties as usually pertain to
the office of President.
SECTION 5.8. VICE-PRESIDENTS. The Vice-Presidents, if any, or any of
them, shall, subject to the direction of the Board of Directors, at the
request of the President or in his absence, or in case of his inability to
perform his duties from any cause, perform the duties of the President, and,
when so acting, shall have all the powers of, and be subject to all
restrictions upon, the President. The Vice-Presidents shall also perform such
other duties as may be assigned to them by the Board of Directors, and the
Board of Directors may determine the order of priority among them.
SECTION 5.9. SECRETARY. The Secretary shall perform such duties as are
incident to the office of Secretary, or as may from time to time be assigned
to him by the Board of Directors, or as are prescribed by these By-laws.
SECTION 5.10. TREASURER. The Treasurer shall perform such duties and
have powers as are usually incident to the office of Treasurer or which may be
assigned to him by the Board of Directors.
SECTION 5.11. COMPENSATION. The compensation of all officers shall be
fixed by the Board of Directors. An officer who is also a director may be
compensated in both capacities.
SECTION 5.12. BONDING. Any officer, agent or employee of the
Corporation, if so required by the Board of Directors, shall be bonded for the
faithful performance of his duties, with such penalties, conditions and
security as the Board of Directors may require.
ARTICLE VI.
STOCK
SECTION 6.1. STOCK CERTIFICATES. The directors shall determine the form
of certificates which represent ownership of shares of the Corporation. Each
certificate shall contain the holder's name and the number of shares issued.
Each certificate shall be signed by the President or any Vice President and
the Secretary or the Assistant Secretary. Each certificate shall be impressed
with the corporate seal. Each certificate shall be consecutively numbered.
The name and address of the person to whom the shares are issued, with the
number of shares and date of issue, shall be entered in the stock ledger of
the Corporation.
SECTION 6.2. TRANSFER OF STOCK. Transfers of shares shall be made only
on the stock transfer books of the Corporation. On surrender to the
Corporation of a stock certificate properly endorsed by the holder of record
or accompanied by a proper evidence of authority to transfer, a new
certificate shall be issued to the person entitled. However, the requirements
of any applicable stock transfer restriction agreement must also be satisfied.
The old certificate shall be canceled and the transaction recorded in the
stock ledger.
SECTION 6.3. LOST CERTIFICATES. The Corporation shall issue a new stock
certificate in place of a certificate previously issued, if the holder: (a)
claims by affidavit that the certificate has been lost, destroyed, or stolen;
and (b) gives the Corporation a bond or other indemnity as the directors
determine appropriate.
SECTION 6.4. REGISTERED STOCKHOLDERS. The person in whose name shares
are registered in the Corporation's stock ledger shall be deemed by the
Corporation to be the owner of those shares for all purposes. The Corporation
shall not be required to recognize any equitable or other claim or interest in
such shares by any other person, whether or not it has actual or other notice
of such claim.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. SEAL. The corporate seal shall contain the name of the
Corporation as well as the words "Corporate Seal" and "Delaware".
SECTION 7.2. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
SECTION 7.3. CONTRACTS, ETC. The directors shall determine by
resolution which persons shall be empowered to sign contracts, bids,
proposals, certificates and other instruments of the Corporation. Such
authority may be general or confined to specific instances.
SECTION 7.4. CHECKS, ETC. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
SECTION 7.5. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Second Restated Certificate of
Incorporation, may be declared by the Board of Directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in property
or in shares of the capital stock.
SECTION 7.6. RESERVES. Before payment of any dividend there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion,
determine proper as a reserve fund to meet contingencies, or for repairing or
maintaining any property of the Corporation or for such other purpose as the
directors shall think conducive to the interest of the Corporation, and the
directors may abolish any such reserve in the manner in which it was created.
SECTION 7.6.1. VOTING STOCK OF OTHER CORPORATIONS. Except as otherwise
ordered by the Board of Directors, the Chairman of the Board or the President
shall have full power an behalf of the Corporation to attend and to act and to
vote at any meeting of the stockholders of any other corporation of which the
Corporation is a stockholder and to execute a proxy to any other person to
represent the Corporation at any such meeting.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. NON-DERIVATIVE SUITS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or complete action, suit or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he 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
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonable believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe his conduct was unlawful.
SECTION 8.2. DERIVATIVE SUITS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he
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 another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the Corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 8.3. EXTENT OF INDEMNIFICATION. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
in Section 8.1 or 8.2 above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
SECTION 8.4. APPROVAL OF INDEMNIFICATION. Any indemnification under
Section 8.1 or 8.2 above (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Section 8.1 or 8.2 above. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, (2) if such a quorum is
not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (3) by the
affirmative vote of the holders of 51% of the outstanding shares of Common
Stock of the Corporation.
SECTION 8.5. ADVANCES. Expenses (including attorneys' fees) incurred in
defending a civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay such
amount, if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
SECTION 8.6. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall not be
deemed exclusive of any other rights to which any person seeking
indemnification may be entitled under any By-law, agreement, vote of
stockholders or disinterested director or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 8.7. 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 director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under the provisions of this
Section 8.7 or under the provisions of any applicable law or regulation.
ARTICLE IX
AMENDMENTS
SECTION 9.1. These By-laws may be repealed, altered, amended or
rescinded and new by-laws may be adopted by the majority vote of the Board of
Directors or by the affirmative vote of sixty-six and two-thirds percent
(66-2/3%) of the outstanding stock entitled to vote thereon.
Dated: April 1, 1998
Exhibit 3
COUNTERSIGNED AND REGISTERED
NORWEST BANK MINNESOTA NATIONAL ASSOCIATION
(MINNEAPOLIS, MN)
[LOGO]
LEVEL 3 COMMUNICATIONS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK, PAR VALUE $.01 PER SHARE
CUSIP 52729 N100
SEE REVERSE FOR CERTAIN DEFINITIONS
- --------------------------------------------------------------------
THIS IS TO CERTIFY THAT
COUNTERSIGNED AND REGISTERED
NORWEST BANK MINNESOTA NATIONAL ASSOCIATION
(MINNEAPOLIS, MN)
is the owner of
- --------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.01
PER SHARE, OF
LEVEL 3 COMMUNICATIONS, INC.
transferable on the books of the Corporation by the holder hereof in person or
by a duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Articles of
Incorporation of the Corporation and all amendments thereto to all of which
the holder by the acceptance hereof assents.
WITNESS the signatures of its duly authorized officers.
Dated
____________________ SECRETARY ____________________ VICE PRESIDENT
[CORPORATE
SEAL]
LEVEL 3 COMMUNICATIONS, INC.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT --.......Custodian........
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act.........................
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received,_____________ hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- ------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- ------------------------------------------------------------------------------
_____________ shares of the capital stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint
_____________________ Attorney to transfer the said stock on the books of the
within named Corporation with full power of substitution in the premises.
Dated -------------------------
X--------------------------------------
X--------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OF ENLARGEMENT OR ANY CHANGE WHATSOEVER. THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION, (Banks, Stockbrokers, Savings
and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM PURSUANT TO S.E.C. RULE 7Ad-15.
SIGNATURE GUARANTEED:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15.
