Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMERICAN MOBILE SATELLITE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
93-0976127
(IRS employer identification number)
10802 Parkridge Boulevard
Reston, Virginia 20191-5416
(703) 758-6000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
------------------------
American Mobile Satellite Corporation
1999 Stock Option Plan for Non-employee Directors
(Full title of the Plan)
------------------------
Randy S. Segal
Senior Vice President, General Counsel and Secretary
American Mobile Satellite Corporation
10802 Parkridge Boulevard
Reston, Virginia 20191-5416
(703) 758-6000
(Name, address and telephone number of Agent for Service)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount Proposed Maximum Proposed Maximum Amount of
Title of securities to be Offering Price Aggregate Offering Registration
to be registered Registered (1) per Share (2) Price (2) Fee
<S> <C> <C> <C> <C>
Common Stock 50,000 $13.3125 $665,625 $185.04
========================================== ================= ====================== ====================== ==============
</TABLE>
(1) With respect to the Plan, an additional 50,000 shares of the registrant's
common stock were registered on the registrant's registration statement on
Form S-8 (File No. 33-91714).
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I have been
and/or will be sent or given to participants as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act"). In accordance
with the instructions to Part I of Form S-8, such documents will not be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference pursuant to Item 3 of Part II of this registration
statement, taken together, constitute the prospectus as required by Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement registers additional shares of Common Stock
of American Mobile Satellite Corporation (the "Company") for which a
registration statement on Form S-8 relating to the Company's Stock Option Plan
for Non-employee Directors is effective. This registration statement hereby
incorporates by reference the contents of such earlier registration statement on
Form S-8 (File No.
33-91714).
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference into this registration
statement the following documents filed by it with the Commission:
(a) The Company's Registration Statement on Form S-8 (File No.
33-91714);
(b) The Company's annual report on Form 10-K for the year ended
December 31, 1998;
(c) The Company's quarterly report on Form 10-Q for the quarter ended
March 31, 1999;
(d) The Company's quarterly report on Form 10-Q for the quarter ended
June 30, 1999;
(e) The Company's current report on Form 8-K dated June 7, 1999 and
filed with the Commission on June 9, 1999;
(f) The Company's current report on Form 8-K dated July 9, 199 and
filed with the Commission on July 9, 1999;
(g) The Company's current report on Form 8-K dated July 23, 1999
and filed with the Commission on July 26, 1999;
(h) The Company's current report on Form 8-K dated October 5, 1999 and
filed with the Commission on October 6, 1999; and
(i) The description of the Company's common stock, par value $.01 per
share ("Common Stock"), contained in the Company's registration
statement on Form 8-A, dated December 9, 1993 and on Form 8-A/A,
dated December 13, 1993.
<PAGE>
In addition, all documents and reports filed by the Company subsequent
to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
part hereof from the date of filing of such documents or reports. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities.
A description of the Company's Common Stock is incorporated by
reference under Item 3.
Item 5. Interests of Named Experts and Counsel.
The legal opinion with respect to the legality of the shares of Common
Stock being registered hereby, which opinion is being filed as Exhibit 5 to this
registration statement, is being provided by Randy S. Segal, Senior Vice
President, General Counsel and Secretary of the Company. Ms. Segal owns 163,032
shares of common stock. Her ownership also includes shares issuable upon the
exercise of options granted under the Company's Stock Option Plan which options
are vested and exercisable, or which may be vested and exercisable within sixty
(60) days of the date of this registration statement.
Item 6. Indemnification of Directors and Officers.
The Company's Bylaws provide that the Company will indemnify its
directors and officers to the fullest extent permitted by Delaware law. The
Company may be required to advance litigation expenses in the case of
stockholder derivative actions or other actions, against an undertaking by the
indemnified party to repay such advances if it is ultimately determined that the
indemnified party is not entitled to indemnification.
In addition, the Company's Certificate of Incorporation provides that,
pursuant to Delaware law, its directors shall not be liable for monetary damages
for breach of the directors' fiduciary duty of care to the corporation and its
stockholders. This provision in the Certificate of Incorporation does not
eliminate the duty of care, and in appropriate circumstances equitable remedies
such as injunctive or other forms of nonmonetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws.
At present, there is no pending litigation or proceeding involving an
officer or director of the Company as to which indemnification is being sought,
nor is the Company aware of any threatened litigation that may result in claims
for indemnification by any officer or director.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Company (as
restated effective September 7, 1999) (filed herewith).
4.2 Amended and Restated Bylaws of the Company (as amended and
restated effective September 23, 1999) (filed herewith).
4.3 Specimen of Common Stock Certificate of the Company
(incorporated by reference to Exhibit No. 4.1 to the
Company's Registration Statement on Form S-1 (File No.
33-70468)).
4.4 American Mobile Satellite Corporation 1999 Stock Option Plan
for Non- Employee Directors (filed herewith).
4.5 Form of Non-employee Director Stock Option Agreement (filed
herewith).
5 Opinion of Randy S. Segal, Senior Vice President, General
Counsel and Secretary, regarding the legality of the
securities being registered.
23.1 Consent of Randy S. Segal (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP, independent public
accountants.
23.3 Consent of KPMG LLP, independent certified public
accountants.
24 Powers of Attorney (included on the signature pages hereof).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
<PAGE>
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3, or Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liability arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant or expenses incurred or
paid by a director, officer or controlling person in successful defense of any
action , suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Fairfax, Commonwealth of Virginia, on October
12, 1999.
AMERICAN MOBILE
SATELLITE CORPORATION
By: /s/Walter V. Purnell, Jr.
-------------------------
Walter V. Purnell, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each individual whose signature appears
below constitutes and appoints Gary M. Parsons, Walter V. Purnell, Jr., and
Randy S. Segal, and each of them, his true and lawful attorney-in-fact and
agent, with power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
(the "Registration Statement") relating to a registration of shares of common
stock on Form S-8 and to sign any and all amendments (including post-effective
amendments) to the Registration Statement, and to file the same, with all
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/Walter V. Purnell, Jr. President and October 12, 1999
- -------------------------
Walter V. Purnell, Jr. Chief Executive Officer
/s/W. Bartlett Snell Senior Vice President and October 12, 1999
- --------------------
W. Bartlett Snell Chief Financial Officer
(principal financial and
accounting officer)
<PAGE>
/s/Gary M. Parsons Chairman of the October 12, 1999
- ------------------
Gary M. Parsons Board of Directors
/s/Douglas I. Brandon Director October 12, 1999
- ---------------------
Douglas I. Brandon
/s/Billy J. Parrott Director October 12, 1999
- -------------------
Billy J. Parrott
/s/Andrew A. Quartner Director October 12, 1999
- ---------------------
Andrew A. Quartner
/s/Jack A. Shaw Director October 12, 1999
- ---------------
Jack A. Shaw
Exhibit 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN MOBILE SATELLITE CORPORATION
American Mobile Satellite Corporation, a corporation organized and existing
under and by virtue of the Delaware General Corporation Law (the "Corporation"),
hereby certifies as follows:
1. The name of the Corporation is American Mobile Satellite Corporation; it
was originally incorporated under the name "American Mobile Satellite
Consortium, Inc.," and its original Certificate of Incorporation was filed on
May 3, 1988;
2. This Restated Certificate of Incorporation, the entirety of which is set
forth below, has been duly adopted in accordance with Section 245 of the
Delaware General Corporation Law, only restates and integrates and does not
further amend the provisions of the Corporation's certificate of incorporation
as heretofore amended or supplemented, and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of Incorporation.
FIRST: The name of the Corporation is American Mobile Satellite
Corporation.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, and the name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of 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, including specifically to act as the registered
agent of its wholly owned subsidiaries.
FOURTH:
A. Authorized Capital Stock. The total number of shares of all classes of
stock which the Corporation shall be authorized to issue shall be one hundred
fifty million two hundred thousand (150,200,000) shares. One hundred fifty
million (150,000,000) of said shares shall be of a par value of $.01 per share
and shall be designated common stock ("Common Stock") and two hundred thousand
(200,000) of said shares shall be of a par value of $.01 per share and shall be
designated Series Preferred Stock.
B. Series Preferred Stock. The Series Preferred Stock may be issued from
time to time by the board of directors as herein provided in one or more series.
The designations, relative rights, preferences and limitations with respect to
the Series Preferred Stock, and with respect to the shares of each series
thereof, may, to the extent permitted by law, be similar to or may differ from
those of any other series. The board of directors of the Corporation is hereby
expressly granted authority, subject to the provision of this Article FOURTH, to
issue from time to time Series Preferred Stock in one or more series, and to fix
from time to time before issuance thereof, by filing of a certificate pursuant
to the General Corporation Law of the State of Delaware, the number of shares in
each such series, and all designations, relative rights (including the right, to
the extent permitted by law, to convert into shares of any class or into shares
of any series of any class), preferences and limitations of the shares in each
such series, including, but without limiting the generality of the foregoing,
the following:
1. The number of shares to constitute such series (which number may at any
time, or from time to time, be increased or decreased by the board of directors,
notwithstanding that shares of the series may be outstanding at the time of such
increase or decrease, unless the board of directors shall have otherwise
provided in creating such series) and the distinctive designation thereof;
<PAGE>
2. The dividend rate on the shares of such series, whether or not dividends
on the shares of such series shall be cumulative and the date or dates, if any,
from which dividends thereon shall be cumulative;
3. Whether or not the shares of such series shall be redeemable, and, if
redeemable, the date or dates upon or after which they shall be redeemable and
the amount or amounts per share payable thereon in the case of the redemption
thereof, which amount may vary at different redemption dates or otherwise as
permitted by law;
4. The right, if any, of holders of shares of such series to convert the
same into, or exchange the same for, shares of Common Stock or other securities
as permitted by law, and the terms and conditions of such conversion or
exchange, as well as provisions for adjustment of the conversion rate in such
events as the board of directors shall determine;
5. The amount per share payable on the shares of such series upon the
voluntary and involuntary liquidation, dissolution or winding up of the
Corporation;
6. Whether the holders of shares of such series shall have voting power,
full or limited, in addition to the voting powers provided by law, and, in case
additional voting powers are accorded, to fix the extent thereof; and
7. Generally to fix the other rights and privileges and any qualifications,
limitations or restrictions on such rights and privileges of such series,
provided, however, that no such rights, privileges, qualifications, limitations
or restrictions shall be in conflict with the Certificate of Incorporation of
the Corporation or with the resolution or resolutions adopted by the board of
directors providing for the issue of any series of which there are shares then
outstanding.
C. Voting.
1. On all matters upon which holders of Common Stock are entitled or
permitted to vote, every holder of Common Stock shall be entitled to one (1)
vote in person or by proxy for each share of Common Stock standing in such
holder's name on the transfer books of the Corporation.
2. Except as otherwise specifically provided in the certificate filed
pursuant to law with respect to any series of Series Preferred Stock or as
otherwise provided by law, the Series Preferred Stock shall not have any right
to vote on any matters submitted to the stockholders of the Corporation,
including, without limitation, the election of directors. In all instances in
which voting rights are granted to Series Preferred Stock or any series thereof,
such Series Preferred Stock or series shall vote as provided in the certificate
filed pursuant to law with respect to any series of Series Preferred Stock or as
otherwise provided by law.
D. Dividends. The holders of Common Stock shall be entitled to receive
dividends and distributions of the Corporation when and as declared by the board
of directors out of funds legally available therefor. Dividends on the
outstanding Series Preferred Stock of each series shall be declared and paid or
set apart for payment before any dividends shall be declared and paid or set
apart for payment on the Common Stock with respect to the same dividend period.
Dividends on any shares of Serie Preferred Stock shall be cumulative only if and
to the extent set forth in a certificate filed pursuant to law. After dividends
on all shares of Series Preferred Stock (including cumulative dividends if and
to the extent any such shares shall be entitled thereto) shall have been
declared and paid or set apart for payment with respect to any dividend period,
then and not otherwise as long as any shares of Series Preferred Stock shall
remain outstanding, dividends may be declared and paid or set apart for payment
with respect to the same dividend period on the Common Stock out of the assets
or funds of the Corporation legally available therefor.
E. Liquidation, Dissolution or Winding Up. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
each series of Series Preferred Stock shall have preference and priority over
the Common Stock for payment of the amount to which each outstanding series of
Series Preferred Stock shall be entitled in accordance with the provisions
thereof and each holder of Series Preferred Stock shall be entitled to be paid
in full such amount, or hav a sum sufficient for the payment in full set aside,
before any payments shall be made to the holders of the Common Stock. If upon
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation or the proceeds thereof, distributable among the holders of the
shares of all series of Series Preferred Stock shall be insufficient to pay in
full the preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributed among such holders ratably in accordance with the
respective amounts which would be payable if all amounts payable thereof were
paid in full. After the holders of the Series Preferred Stock of each series
shall have been paid in full the amounts to which they respectively shall be
entitled, or a sum sufficient for the payment in full set aside, the remaining
net assets of the Corporation, after payment or provision for payment of the
debts of the Corporation, shall be distributed pro rata to the holders of the
Common Stock, to the exclusion of the holders of Preferred Stock. A
consolidation or merger of the Corporation with or into another corporation or
corporations, or a sale, whether for cash, shares of stock, securities or
properties, of all or substantially all of the assets of the Corporation, shall
not be deemed or construed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this Article FOURTH.
F. Redemption of Series Preferred Stock. In the event that Series Preferred
Stock of any series shall be made redeemable as provided in subsection B.3 of
this Article FOURTH, the Corporation, at the option of the board of directors,
may redeem at any time or times, and from time to time, all or any part of any
one or more series of Series Preferred Stock outstanding by paying for each
share the then applicable redemption price fixed by the board of directors as
provided herein, plus an amount equal to accrued and unpaid dividends to the
date fixed for redemption, upon such notice and terms as provided in the
certificates filed pursuant to law with respect to such series of Series
Preferred Stock.
FIFTH: At all elections of directors of the Corporation, each holder of
Common Stock shall be entitled to any many votes as shall equal the number of
votes which (except for such provision as to cumulative voting) such holder
would be entitled to cast for the election of directors multiplied by the number
of directors to be elected, and such holder may cast all of such votes for a
single director or may distribute such votes among the number of directors to be
voted for, or for any two or more o them as such holder may see fit.
The number of directors shall not be less than seven. All directors
shall be elected at each election of directors by the holders of Common
Stock. Elections of directors need not be by written ballot.
SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided as follows:
1. Except as otherwise expressly provided in this Certificate of
Incorporation or the bylaws, all actions of the board of directors shall be
taken upon or pursuant to the affirmative vote of a majority of the
directors present at a meeting at which a quorum is present.
2. The affirmative vote of the holders of two-thirds of the issued and
outstanding shares of Common Stock shall be required to approve any of the
following actions: a. the merger or consolidation of the Corporation with
or into any other entity; the dissolution or liquidation of the
Corporation; or the sale, exchange, or lease of all or substantially all of
the Corporation's property and assets.
SEVENTH: No fractional shares of Common Stock shall be issued by the
Corporation. In lieu of any fractional shares to which a holder would otherwise
be entitled, the Corporation shall pay cash equal to such fraction multiplied by
the fair market value per share of such Common Stock.
EIGHTH: If and to the extent permitted by the provisions governing
amendment of the bylaws contained therein, the board of directors is authorized
to make, repeal, alter, amend and rescind the bylaws of the Corporation.
NINTH: To the fullest extent permitted by the General Corporation Law of
Delaware or any other applicable laws presently or hereafter in effect, a
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any repeal or modification of this Article NINTH shall not adversely
affect any right or protection of a director of the Corporation existing
immediately prior to such repeal or modification.
TENTH: Each person who is or was a director or officer of the Corporation
shall be indemnified by the Corporation to the fullest extent permitted by the
General Corporation Law of the State of Delaware or any other applicable laws as
presently or hereafter in effect. Without limiting the generality or the effect
of the foregoing, the Corporation may enter into one or more agreements with any
person which provide for indemnification greater or different than that provided
in this Article TENTH. Any repeal or modification of this Article TENTH shall
not adversely affect any right or protection existing hereunder immediately
prior to such repeal or modification.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate, in the manner now or
hereafter prescribed by statute and this Certificate, and all rights conferred
on stockholders herein are granted subject to this reservation. This Certificate
may not be amended, modified, rendered ineffective or repealed except by the
vote of the holders of two thirds of the issued and outstanding shares of Common
Stock. Other classes or series of stock shall not be entitled to vote on any
such amendment, modification or other change, unless and to the extent required
by applicable law.
TWELFTH: The Corporation expressly elects not to be governed by Section 203
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I, the undersigned, being duly elected/appointed Vice
President of the Corporation, do on behalf of the Corporation make this Restated
Certificate of Incorporation of the Corporation, effective September 7, 1999,
hereby declaring and certifying under penalties of perjury that this is the act
and deed of the Corporation and the facts herein stated are true, and
accordingly have hereunto set my hand this 15th day of September, 1999.
AMERICAN MOBILE SATELLITE CORPORATION
By: /s/Randy S. Segal
-----------------
Name: Randy S. Segal
Title: Senior Vice President, General
Counsel and Secretary
Attested to:
/s/David H. Engvall
- -------------------
Name: David H. Engvall
Title: Executive Counsel and
Assistant Secretary
<PAGE>
Commonwealth of Virginia
County of Fairfax, ss:
I, Suzanne H. Podhorecki, a Notary Public, hereby certify that on the
15th day of September, 1999, David H. Engvall appeared before me and
acknowledged that he is the duly authorized and elected Executive Counsel and
Assistant Secretary of American Mobile Satellite Corporation, that his signature
was his own act and deed and the foregoing instrument, the act and deed of
American Mobile Satellite Corporation and the facts stated therein are true.
Notary Public
/s/Suzanne H. Podhorecki
------------------------
My Commission Expires:
October 31, 2001
<PAGE>
Commonwealth of Virginia
County of Fairfax, ss:
I, Suzanne H. Podhorecki, a Notary Public, hereby certify that on the
15th day of September, 1999, Randy S. Segal appeared before me and acknowledged
that she is the duly authorized and elected Senior Vice President, General
Counsel and Secretary of American Mobile Satellite Corporation, that her
signature was her own act and deed and the foregoing instrument, the act and
deed of American Mobile Satellite Corporation and the facts stated therein are
true.
Notary Public
/s/Suzanne H. Podhorecki
------------------------
My Commission Expires:
October 31, 2001
Exhibit 4.2
AMENDED AND RESTATED BYLAWS
OF
AMERICAN MOBILE SATELLITE CORPORATION
(As of September 23, 1999)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. OFFICES....................................... 1
ARTICLE II. MEETINGS OF STOCKHOLDERS...................... 2
ARTICLE III. DIRECTORS..................................... 5
ARTICLE IV. NOTICES....................................... 9
ARTICLE V. OFFICERS...................................... 9
ARTICLE VI. CERTIFICATES OF STOCK......................... 12
ARTICLE VII. PROCUREMENT................................... 14
ARTICLE VIII. INDEMNIFICATION OF DIRECTORS
AND OFFICERS.................................. 14
ARTICLE IX. GENERAL PROVISIONS............................ 15
ARTICLE X. AMENDMENTS.................................... 15
<PAGE>
ARTICLE I.
OFFICES
SECTION 1. The registered office of American Mobile Satellite Corporation
(the "Corporation") shall be in the City of Wilmington, County of New Castle,
State of Delaware, or such other place within the State of Delaware as the board
of directors may from time to time determine.
SECTION 2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. All meetings of the stockholders for the election of directors
or for any other purpose shall be held at such time and place, within or without
the State of Delaware, but within the United States of America, as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
SECTION 2. Annual meetings of the stockholders of the Corporation for the
purpose of electing directors and for the transaction of such other business as
may be properly brought before such meetings shall be held on the third Thursday
of April in each year, or at such other time, date and place as the board of
directors shall determine by resolution.
SECTION 3. Written notice of the annual meeting of stockholders stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
SECTION 4. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number and class of shares registered in the name of each
stockholder. Such list shall be open for examination by any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
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SECTION 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of the holder or holders of Common Stock
representing at least 33-1/3% of the shares of Common Stock issued and
outstanding and entitled to vote. A special meeting of the holders of the Common
Stock for the sole purpose of electing all of the directors of the Corporation
shall be called by the president or secretary promptly upon the receipt by the
secretary of a written request from the holder or holders of Common Stock
representing that percentage of the shares of Common Stock then issued and
outstanding that would be sufficient to elect at least one director if such
shares of Common Stock were then cumulatively voted in an election of the entire
board of directors.
SECTION 6. Written notice of a special meeting of stockholders stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
SECTION 7. The holders of a majority of the Common Stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the holders of Common Stock
for the transaction of business except as otherwise provided by statute or by
the Certificate of Incorporation. If, however, such quorum shall not be present
or represented at any meeting of the holders of Common Stock, the holders of
Common Stock entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each holder of
Common Stock of record entitled to vote at the meeting.
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SECTION 8. When a quorum is present at any meeting of holders of Common
Stock, the affirmative vote of the holders of a majority of the Common Stock
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of law, the Certificate of Incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
SECTION 9. At every meeting of the holders of Common Stock each holder of
Common Stock shall be entitled to one vote in person or by proxy for each share
of the Common Stock held by such stockholder for each matter with respect to
which the holders of Common Stock are entitled to vote except for the election
of directors, which shall be by cumulative voting as provided in the Certificate
of Incorporation.
SECTION 10. The stock ledger of the Corporation shall be the only evidence
as to who are the stockholders entitled to examine the stock ledger, the list
required by Article II, Section 4 and the books of the Corporation, or to vote
in person or by proxy at any meeting of stockholders.
SECTION 11. Votes by written ballot at any meeting of stockholders may be
conducted by one or more inspectors, appointed for that purpose, either by the
board of directors or by the chairman of the meeting. The inspector or
inspectors may decide upon the qualifications of voters and the validity of
proxies, may count the votes and declare the result and take such other actions
as required by applicable law.
SECTION 12. The Chairman of the Board, or, in the absence of the Chairman
of the Board, the Chairman of the Executive Committee or, in the absence of the
Chairman of the Executive Committee, the President, or, in the absence of any of
them, any Vice President, in order of their election, shall preside at meetings
of stockholders. The secretary of the Corporation shall act as secretary, but in
the absence of the secretary, the presiding officer may appoint a secretary.
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SECTION 13. (a) No proposal for a stockholder vote shall be submitted by a
stockholder (a "Stockholder Proposal") to the Corporation's stockholders unless
the stockholder submitting such proposal (the "Proponent") shall have filed a
written notice setting forth with particularity (i) the names and business
addresses of the Proponent and all persons or entities acting in concert with
the Proponent; (ii) the name and address of the Proponent and the persons or
entities identified in clause (i), as they appear on the Corporation's books (if
they so appear); (iii) the class and number of shares of the Corporation
beneficially owned by the Proponent and the persons or entities identified in
clause (i); (iv) a description of the Stockholder Proposal containing all
material information relating thereto; and (v) such other information as the
board of directors reasonably determines is necessary or appropriate to enable
the board of directors and stockholders of the Corporation to consider the
Stockholder Proposal. Upon receipt of the Stockholder Proposal and prior to the
stockholder meeting at which such Stockholder Proposal will be considered, if
the board of directors, a designated committee of the board of directors or, if
authorized by the board of directors or a committee thereof, an officer of the
Corporation, determines that the information provided in a Stockholder Proposal
does not satisfy the informational requirements of these bylaws or is otherwise
not in accordance with law, the secretary of the Corporation shall promptly
notify such Proponent of the deficiency in the notice. Such Proponent shall have
an opportunity to cure the deficiency by providing additional information to the
secretary within the period of time, not to exceed ten days from the date such
deficiency notice is given to the Proponent, determined by the board of
directors or such committee. If the deficiency is not cured within such period,
or if the board of directors, or such committee determines that the additional
information provided by the Proponent, together with the information previously
provided, does not satisfy the requirements of this Article II, Section 13, then
such proposal shall not be presented for action at the meeting in question.
Nothing in this Article II, Section 13, shall in any way limit the discretion of
the board of directors to omit any Stockholder Proposal in accordance with
applicable law.
(b) Stockholder Proposals shall be delivered to the secretary at the
principal executive office of the Corporation not less than sixty days not more
than one hundred and twenty days prior to the date of the meeting of
stockholders if such Stockholder Proposal is to be submitted at an annual
stockholders meeting (provided, however, that if such annual meeting is called
to be held before the date specified in Article II, Section 2, or if a
Stockholder Proposal is to be submitted at a special stockholders meeting, such
Stockholder Proposal shall be so delivered no later than the close of business
on the tenth day following the day on which notice of the date of such annual
stockholders meeting or special stockholders meeting, as the case may be, was
announced on the Dow Jones newswire service, or if such newswire service is
unavailable, any national newswire service).
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ARTICLE III.
DIRECTORS
SECTION 1. The board of directors shall consist of seven (7) directors. The
directors shall be elected at the annual meeting of the stockholders, or as
provided in Article II, Section 5 and each director elected shall hold office
until his or her successor is elected and qualified.
SECTION 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled only as provided in
this Article III, Section 4.
SECTION 3. A director or directors may be removed by the affirmative vote
of the holders of a majority of the shares of Common Stock issued and
outstanding and entitled to vote at a special meeting of the holders of the
Common Stock called for such a purpose. In the event of the removal of a
director, the vacancy created by such removal shall be filled only as provided
in this Article III, Section 4.
SECTION 4. Board of directors vacancies and newly created directorships may
be filled by a vote of a majority of the directors then in office, although less
than a quorum, or by the sole remaining director.
SECTION 5. The business and affairs of the Corporation shall be managed by
or under the direction of its board of directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
SECTION 6. Meetings of the board of directors, both regular and special,
may be held at any location within North America and may be held outside North
America if two-thirds of the number of directors then in office so authorize. In
the event a meeting of the board of directors is to be held outside North
America, notice thereof shall be given at least ten business days prior to such
meeting.
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SECTION 7. Regular meetings of the board of directors may be held at such
time (not less frequently than four times each year) and at such place as shall
from time to time be determined by the board of directors.
SECTION 8. Special meetings of the board of directors may be called by the
president and shall be called by the president upon the written request of three
directors. Except as otherwise provided in Article III, Sections 5 and 9, each
notice of a special meeting of the board of directors shall be given at least
five business days prior to such meeting and shall identify the purpose or
purposes of the special meeting or the business to be transacted at the special
meeting. Business transacted at any special meeting of the board of directors
shall be limited to the purpose or purposes stated in the notice of such special
meeting.
SECTION 9. At all meetings of the board of directors, the presence of a
majority of the number of directors then in office shall be necessary to
constitute a quorum for the transaction of business, provided that a quorum may
not be less than one-third of the total number of directors. The act of a
majority of the directors present at a meeting at which a quorum is present,
unless a greater number is required by law, by the Certificate of Incorporation
or by these bylaws, shall be the act of the board of directors. If a quorum
shall not be present at any meeting of the board of directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
SECTION 10. Any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting, if all members of the board of directors or the committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes or proceedings of the board of directors or the committee.
SECTION 11. Members of the board of directors, or any committee designated
by the board of directors, shall have the right to participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
SECTION 12. The Corporation may pay the directors reasonable compensation
for serving as directors and as members of one or more committees of the board
of directors, the form and amount of which shall be fixed by resolution adopted
by a majority of the number of directors then in office, and may reimburse such
directors for any reasonable expenses incurred in attending the meetings of the
board of directors or any committees thereof.
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SECTION 13. In addition to the committees designated in these bylaws, the
board of directors may, by resolution passed by a majority of the whole board of
directors: (i) designate one or more committees, each committee to consist of
one or more of the directors of the Corporation; (ii) appoint the members of
such committees; and (iii) designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee.
SECTION 14. The Corporation shall have an Executive Committee, to consist
of four or more directors appointed by a majority of the whole board of
directors, and may appoint one or more directors as alternate members of such
Executive Committee, who may replace any absent or disqualified member at any
meeting of the Executive Committee. Between the meetings of the board of
directors and while the board of directors is not in session, the Executive
Committee shall have all the powers and exercise all the duties of the board of
directors in the management of the business and affairs of the Corporation that
may lawfully be delegated to the Executive Committee by the board of directors,
including, without limitation, the power and authority granted to committees
pursuant to these bylaws, and the power and authority to declare a dividend, to
authorize the issuance of stock and to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware General Corporation Law, as
amended. The Executive Committee shall adopt its own rules of procedure and
shall meet where and as provided by such rules. All action taken by the
Executive Committee shall be reported to the board of directors at the meeting
thereof next succeeding such action.
SECTION 15. The Corporation shall have an Audit Committee, to consist of
not less than two directors, appointed by the board of directors. The duties and
responsibilities of the Audit Committee shall be established by the board of
directors. The Audit Committee shall adopt its own rules of procedure and shall
meet where and as provided by such rules. All action taken by the Audit
Committee shall be reported to the board of directors at the meeting thereof
next succeeding such action.
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SECTION 16. The Corporation shall have a Nominating Committee, to consist
of not less than two directors, not more than one of whom may be an officer of
the Corporation, appointed by the board of directors. The duties and
responsibilities of the Nominating Committee shall be to select the persons to
be candidates for nomination for election as directors of the Corporation and
make recommendations with respect thereto to the board of directors. The
Nominating Committee shall adopt its own rules of procedure and shall meet where
and as provided by such rules. All action taken by the Nominating Committee
shall be reported to the board of directors at the meeting thereof next
succeeding such action.
SECTION 17. In the absence or disqualification of a member of a committee,
and in the absence of a designation by the board of directors of an alternate
member to replace the absent or disqualified member, the member or members of
the committee present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of any such absent or
disqualified member.
SECTION 18. Any committee, to the extent provided in the resolution of the
board of directors establishing such committee and to the extent not
inconsistent with the Certificate of Incorporation, these bylaws, or the General
Corporation Law of the State of Delaware, shall have and may exercise all the
powers and authority of the board of directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be fixed to all papers which may require it.
SECTION 19. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
ARTICLE IV.
NOTICES
SECTION 1. Whenever, under the provisions of the statutes, the Certificate
of Incorporation or these bylaws, notice is required to be given to any
stockholder or director, such notice shall be in writing, and shall be deemed
given to each stockholder or director (i) upon receipt if delivered in person,
by cable, telegram, telex, telecopy, or other electronic transmission, (ii) one
day after deposit with a reputable overnight courier service, or (iii) five days
after deposit in the United States mail (either by first class, registered or
certified mail, postage prepaid), if sent to such stockholder's or director's
address as it appears on the records of the Corporation.
<PAGE>
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SECTION 2. Whenever any notice is required to be given under the provisions
of the statutes, the Certificate of Incorporation or these bylaws, a written
waiver of notice, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened.
ARTICLE V.
OFFICERS
SECTION 1. The officers of the Corporation shall be elected by the board of
directors and shall be a president, a secretary and a treasurer. The board of
directors may also elect one or more vice-presidents and one or more assistant
secretaries and assistant treasurers. The officers of the Corporation shall be
elected by the vote of a majority of the number of directors then in office. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these bylaws otherwise provide.
SECTION 2. The board of directors at its first meeting after each annual
meeting of stockholders shall elect a president, a secretary, a treasurer and
any other officers which the board of directors determines to elect and shall
designate one of such officers as the chief financial officer.
SECTION 3. The board of directors may elect such other officers and appoint
such agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
SECTION 4. The compensation of all officers and agents of the Corporation
shall be fixed from time to time by the board of directors.
SECTION 5. The officers of the Corporation shall hold office until their
successors are elected and qualified. Any officer elected by the board of
directors may be removed at any time by the affirmative vote of a majority of
the number of directors then in office. Any vacancy occurring in any office of
the Corporation may be filled by the affirmative vote of a majority of the
number of directors then in office.
<PAGE>
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SECTION 6. The president of the Corporation, subject to the control of the
board of directors, shall supervise the day-to-day affairs of the corporation,
shall have general and active management responsibility for the business of the
Corporation, and shall see that all orders and resolutions of the board of
directors are carried into effect.
SECTION 7. At the request of the president or in his absence or in the
event of his inability or refusal to act, the vice-president, if there be one,
or in the event there be more than one vice-president, the vice-presidents in
the order designated by the directors, or in the absence of any designation,
then in the order of their election, shall perform the duties of the president,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the president. The vice-presidents shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
SECTION 8. The secretary shall attend all meetings of the stockholders and
record all the proceedings of the meetings of the Corporation and of the board
of directors in a book or books to be kept for that purpose and shall perform
like duties for the standing committees when required. The secretary shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other duties as may
be prescribed by the board of directors or the president, under whose
supervision the secretary shall be. The secretary shall have custody of the
corporate seal of the Corporation and the secretary, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by the secretary's signature or by the signature
of such assistant secretary. The board of directors may give general authority
to any other officer to affix the seal of the Corporation and to attest the
affixing by his signature. The secretary shall see that all books, reprints,
statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
SECTION 9. The assistant secretary, if there be one, or if there be more
than one, the assistant secretaries in the order determined by the board of
directors, or if there be no such determination, then in the order of their
election, shall at the request of the secretary or in his absence or in the
event of his inability or refusal to act, perform the duties of the secretary,
and when so acting, shall have all the powers and be subject to all the
restrictions upon the secretary. The assistant secretaries shall perform such
other duties and have such other powers as the board of directors may from time
to time prescribe.
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SECTION 10. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the board of directors. The treasurer
shall disburse the funds of the Corporation as may be ordered by the board of
directors, taking proper vouchers for such disbursements, and shall render to
the president, and to the board of directors at its regular meetings, or when
the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the Corporation.
SECTION 11. If required by the board of directors, the treasurer shall give
the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
SECTION 12. The assistant treasurer, if there be one, or if there shall be
more than one, the assistant treasurers in the order determined by the board of
directors, or if there be no such determination, then in the order of their
election, shall, at the request of the treasurer or in his absence or in the
event of his inability or refusal to act, perform the duties of the treasurer,
and when so acting, shall have all the powers and be subject to all the
restrictions upon the treasurer. The assistant treasurers shall perform such
other duties and have such other powers as the board of directors may from time
to time prescribe.
SECTION 13. The chief financial officer shall have such duties as may be
assigned by the board of directors.
<PAGE>
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ARTICLE VI.
CERTIFICATES OF STOCK
SECTION 1. Every stockholder of the Corporation shall be entitled to have a
certificate in the name of the Corporation signed by the president and the
secretary or an assistant secretary of the Corporation, certifying the number of
shares owned by him in the Corporation. If the Corporation shall be authorized
to issue more than one class of capital stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of such class of capital stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of capital stock; provided that, except as otherwise provided in Section
202 of the General Corporation Law of the State of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of capital stock, a statement that the Corporation will furnish without charge
to each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
capital stock or series thereof and the qualifications, limitations or
restrictions of such preference and/or rights.
SECTION 2. Any or all of the signatures on a certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if they were such
officer, transfer agent or registrar at the date of issue.
SECTION 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 4. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
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SECTION 5. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exchange of stock
or for the purpose of any other lawful action, the board of directors may affix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other 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 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares of capital
stock of the Corporation to receive dividends, and to vote as such owner, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares of capital stock on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of the State of Delaware.
ARTICLE VII.
PROCUREMENT
Each Director shall have the right to review in their entirety any and all
proposals received by the Corporation in response to any requests for proposals
that may be issued by the Corporation for contracts, purchase orders or other
similar binding commitments to be entered into by, or on behalf of, the
Corporation. The board of directors' review of proposals shall be conducted in a
manner consistent with the requirements of the request for proposals to maintain
the confidentiality of proprietary information contained in the proposals.
<PAGE>
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ARTICLE VIII.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who is or was or had agreed to be a director or officer of the
Corporation shall be indemnified by the Corporation to the fullest extent
permitted or authorized by the General Corporation Law of the State of Delaware
or any other applicable laws as presently or hereafter in effect. Without
limiting the generality of the foregoing, the Corporation may enter into one or
more agreements with any person which provide for indemnification greater or
different than that provided in this Article VIII. Any repeal or modification of
this Article VIII shall not adversely affect any right or protection existing
hereunder immediately prior to such repeal or modification. The Corporation may,
but shall not be obligated to, maintain insurance, at its expense, for the
benefit of the Corporation and of any person to be indemnified.
ARTICLE IX.
GENERAL PROVISIONS
SECTION 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, 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 capital stock,
subject to the provisions of the Certificate of Incorporation.
SECTION 2. 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
board of directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the board of directors shall believe conducive to the interest of the
Corporation, and the board of directors may modify or abolish any such reserve
in the manner in which it was created.
SECTION 3. 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.
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SECTION 4. The fiscal year of the Corporation shall end on December 31 of
each year or as otherwise fixed by resolution of the board of directors.
SECTION 5. The board of directors may adopt a corporate seal and use the
same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE X.
AMENDMENTS
Except as otherwise provided by the Certificate of Incorporation or these
bylaws, these bylaws may be altered, amended or repealed or newI bylaws may be
adopted only by the vote of either (i) three-fourths of the members of the board
of directors then in office or (ii) the holders of two-thirds of the issued and
outstanding shares of Common Stock.
Approved by three-fourths of the members of the board of directors as of
the 23rd day of September, 1999.
/s/Randy S. Segal
Randy S. Segal
Secretary
Exhibit 4.4
AMERICAN MOBILE SATELLITE CORPORATION
================================================================================
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
ARTICLE I
RESTATEMENT AND PURPOSES
American Mobile Satellite Company (the "Company") maintained the
American Mobile Satellite Corporation 1994 Stock Option Plan for Non-Employee
Directors (the "Prior Plan"). The Prior Plan has been amended and restated, as
set forth herein, effective March 25, 1999, subject to the approval of the
shareholders of the Company within twelve months of such effective date (the
"Plan"). Notwithstanding anything herein to the contrary, nothing in this Plan
shall adversely affect the rights or obligations of any holder of an Option
granted under the Prior Plan without such person's approval.
The purposes of the Plan are to attract and retain the services of
experienced and knowledgeable non-employee Directors of the Company and to
provide an incentive for such Directors to increase their proprietary interests
in the Company's long-term success and progress.
ARTICLE II
SHARES SUBJECT TO THE PLAN
Subject to adjustment in accordance with Article VI hereof, the total
number of shares of the Company's Common Stock, $.01 par value per share (the
"Common Stock"), for which options may be granted under the Plan is 100,000 (the
"Shares," including, for the purposes of this Article II, the Prior Plan). The
Shares shall be shares of Common Stock presently authorized but unissued or
subsequently acquired by the Company and shall include shares representing the
unexercised portion of any option granted under the Plan which expires or
terminates without being exercised in full.
ARTICLE III
ADMINISTRATION OF THE PLAN
The administrator of the Plan (the "Plan Administrator") shall be the
Board of Directors ("Board") or a committee or committees appointed by the
Board. Subject to the terms of the Plan, the Plan Administrator shall have the
power to construe the provisions of the Plan, to determine all questions arising
thereunder and to adopt and amend such rules and regulations for the
administration of the Plan as it may deem desirable. No member of the Plan
Administrator shall participate in any vote by the Plan Administrator on any
matter materially affecting the rights of any such member under the Plan.
- 1 -
<PAGE>
ARTICLE IV
PARTICIPATION IN THE PLAN
Each member of the Board elected or appointed who is not otherwise an
employee of the Company or any subsidiary (an "Eligible Director") shall be
eligible to receive the following option grants under the Plan:
1. Initial Grant
An initial grant (an "Initial Grant") of an option to purchase 5,000
Shares shall automatically be granted to each Eligible Director effective March
25, 1999, and to each person who becomes an Eligible Director following the date
of adoption of the Plan by the Board upon the earlier of the Eligible Director's
initial election or appointment as a Director of the Company.
Each Initial Grant shall be fully vested and immediately exercisable
upon grant.
2. Additional Grants
Commencing on July 1, 1999, each Eligible Director shall automatically
receive an additional grant (an "Additional Grant") of an option to purchase
2,500 Shares on July 1 of each year (an "Additional Grant Date"); provided, that
an Eligible Director who has received an Initial Grant within four (4) months
prior to an Additional Grant Date shall not receive an Additional Grant until
the next year's Additional Grant Date.
Each Additional Grant shall be fully vested and immediately exercisable
upon grant.
3. Discretionary Grants
The Plan Administrator shall have the authority and discretion to grant
additional options to Eligible Directors at such times and on such terms and
conditions as it may determine.
ARTICLE V
OPTION TERMS
Each option grant to an Eligible Director under the Plan and the
issuance of Shares thereunder shall be subject to the following terms:
1. Option Agreement
Each option grant to an Eligible Director under Section 3 of Article IV
of the Plan shall have such terms and conditions as may be determined by the
Plan Administrator. Each option grant to an Eligible Director under Section 1 or
2 of Article IV of the Plan and the issuance of shares thereunder shall be
subject to the term set forth in this Article V.
2. Option Exercise Price
The option exercise price for an option granted under the Plan shall be
the fair market value of the Shares covered by the option at the time the option
is granted. For purposes of the Plan, "fair market value" of a Share means the
amount equal to the average of the high and low prices of a Share on the
applicable date as reported by the consolidated tape of the National Association
of Securities Dealers Automated Quotation (or on such other recognized quotation
system on which the trade prices of the Common Stock are quoted on the
applicable date), or, if no Share transactions are reported on such tape (or
such other system) on the applicable date, the high and low prices of a Share on
the immediately preceding date on which Share transactions were so reported, or
as determined pursuant to a reasonable method adopted by the Plan Administrator
in good faith for such purposes.
3. Time and Manner of Exercise of Option
Each option may be exercised in whole or in part at any time and from
time to time, subject to shareholder approval of the Plan; provided, however,
that the Company shall not be required to issue fractional shares.
Any option may be exercised by giving written notice, signed by the
person exercising the option, to the Company stating the number of Shares with
respect to which the option is being exercised, accompanied by payment in full
for such Shares, which payment may be in whole or in part (i) in cash or by
check, (ii) in shares of Common Stock (by delivery or attestation) already owned
for at least six (6) months by the person exercising the option, valued at fair
market value at the time of such exercise, or (iii) by delivery of a properly
executed exercise notice, together with a copy of irrevocable instructions to a
broker, to properly deliver to the Company the amount of sale or loan proceeds
to pay the exercise plan.
4. Term of Options
Each option shall expire ten (10) years from the date of the granting
thereof, but shall be subject to earlier termination as follows:
(a) In the event that an optionee ceases to be a Director
of the Company for any reason other than the death of the optionee, the
options granted to such optionee may be exercised by the optionee only
within seven (7) months after the date the optionee ceases to be a
Director of the Company.
(b) In the event of the death or an optionee, whether during
the optionee's service as a Director or during the seven (7) month
period referred to in Section 4(a), the options granted to the optionee
shall be exercisable, and such options shall expire unless exercised
within twelve (12) months after the date of the optionee's death, by
the legal representatives or the estate of such optionee, by any person
or persons whom the optionee shall have designated in writing on forms
prescribed by and filed with the Company or, if no such designation has
been made, by the person or persons to whom the optionee's rights have
passed by will or the laws of descent and distribution.
5. Transferability
Except as otherwise permitted by the Plan Agreement or specified in an
Agreement, during an optionee's lifetime, an option may be exercised only by the
optionee or pursuant to the terms of a qualified domestic relations order
("QDRO") as defined under the Internal Revenue Code of 1986, as amended. Options
granted under the Plan and the rights and privileges conferred thereby shall not
be subject to execution, attachment or similar process and may not be
transferred, assigned, pledged or hypothecated in any manner (whether by
operation of law or otherwise) other than by will or the applicable laws of
descent and distribution or pursuant to the terms of a QDRO, except that the
Plan Administrator may permit a recipient of an option to designate in writing
during the optionee's lifetime a beneficiary to receive and exercise options in
the event of the optionee's death (as provided in Section 4(b) of this Article
V). Any attempt to transfer, assign, pledge, hypothecate or otherwise dispose o
any option under the Plan or of any right or privilege conferred thereby,
contrary to the provisions of the Plan, or the sale or levy or any attachment or
similar process upon the rights and privileges conferred thereby, shall be null
and void.
6. Participant's or Successor's Rights as Shareholder
Neither the recipient of an option under the Plan nor the optionee's
successor(s) in interest shall have any rights as a shareholder of the Company
with respect to any Shares subject to an option granted to such person until
such person becomes a holder of record of such Shares.
7. Limitation as to Directorship
Neither the Plan nor the granting of an option nor any other action
taken pursuant to the Plan shall constitute or be evidence of any agreement or
understanding, express or implied, that an optionee has a right to continue as a
Director for any period of time or at any particular rate of compensation.
8. Regulatory Approval and Compliance
The Company shall not be required to issue any certificate or
certificates for Shares upon the exercise of an option granted under the Plan,
or record as a holder of record of Shares the name of the individual exercising
an option under the Plan, without obtaining to the complete satisfaction of the
Plan Administrator the approval of all regulatory bodies deemed necessary by the
Plan Administrator, and without complying, to the Plan Administrator's complete
satisfaction, with all rules and regulations under federal, state or local law
deemed applicable by the Plan Administrator.
ARTICLE VI
CAPITAL ADJUSTMENTS
The aggregate number and class of Shares for which options may be
granted under the Plan, the number and class of Shares covered by each
outstanding option and the exercise price per Share thereof (but not the total
price) shall all be equitably adjusted by the Plan Administrator to reflect such
events as stock dividends, stock splits, or exchange of shares,
recapitalizations, mergers, consolidations, reorganizations or any similar
transactions of or by the Company.
In the event of any adjustment in the number of Shares covered by any
option, any fractional Shares resulting from such adjustment shall be
disregarded and each such option shall cover only the number of full Shares
resulting from such adjustment.
ARTICLE VII
EXPENSES OF THE PLAN
All costs and expenses of the adoption and administration of the Plan
shall be borne by the Company; none of such expenses shall be charged to any
optionee.
ARTICLE VIII
EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan, as an amendment and restatement of the Prior Plan, shall be
effective upon adoption by the Board subject to the approval of shareholders of
the Company. The Plan shall continue in effect until it is terminated by action
of the Board or the Company's shareholders, but such termination shall not
affect the then-outstanding terms of any options.
ARTICLE IX
TERMINATION AND AMENDMENT OF THE PLAN
The Board may amend, terminate or suspend the Plan or any portion
thereof at any time, in its sole and absolute discretion.
ARTICLE X
COMPLIANCE WITH RULE 16B-3
It is the intention of the Company that the Plan comply in all respect
with Rule 16b-3 promulgated under Section 16(b) of the Securities Exchange Act
of 1934, as amended ("Exchange Act"). Therefore, if any Plan provision is later
found not be in compliance with Rule 16b-3, that provision shall be deemed null
and void, and in all events the Plan shall be construed in favor of its meeting
the requirements of Rule 16b-3.
- 2 -
Exhibit 4.5
AMERICAN MOBILE SATELLITE CORPORATION
================================================================================
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
TO: __________________ Option No. ________
We are pleased to inform you that, pursuant to the American Mobile
Satellite Corporation's (the "Company") 1999 Stock Option Plan for Non-Employee
Directors (the "Plan"), you have been granted a nonqualified stock option for
the purchase of _____ shares of the Company's Common Stock at an exercise price
of $_____ per share. A copy of the Plan is attached and incorporated into this
Agreement by reference. If the Plan is not approved by the shareholders of the
Company, this option will be invalid and void ab initio.
The terms of the option are as set forth in the Plan and in this
Agreement. The most important of terms set forth in the Plan are summarized as
follows:
Term: The option will expire upon the earlier of ten (10) years from
the date of grant or within seven (7) months of your termination of service as a
Director of the Company, unless sooner terminated.
Exercise: During your lifetime only you can exercise the option. The
Plan also provides for exercise of the option in accordance with the terms of a
qualified domestic relations order ("QDRO") as defined under the Internal
Revenue Code of 1986, as amended, (the "Code") or by the personal representative
of your estate, a designated beneficiary or other beneficiary of your estate
following your death. You may use the Notice of Exercise of Nonqualified Stock
Option in the form attached to this Agreement when you exercise the option.
Payment for Shares: The option may be exercised by the delivery of:
(a) Cash, personal check (unless, at the time of exercise, the Plan
Administrator determines otherwise), bank certified or cashier's check;
(b) Unless the Plan Administrator in its sole discretion determines
otherwise, shares of Common Stock of the Company (either by delivery or
attestation) held by you for a period of at least six (6) months having a fair
market value at the time of exercise, as determined in good faith by the Plan
Administrator, equal to the exercise price; or
(c) A properly executed exercise notice together with irrevocable
instructions to the Company-designated broker for cashless exercises to
promptly deliver to the Company the amount of sale or loan proceeds to pay the
exercise price.
Termination: If you cease to be a Director of the Company for any
reason other than death, and unless by its terms this option sooner terminates
or expires, then you may exercise, for a seven (7) month period, that portion of
your option which is exercisable at the time of such cessation, but the option
shall terminate at the end of such period following such cessation as to all
shares for which it has not theretofore been exercised.
Death of Optionee: If you die while serving as a Director of the
Company or within the seven (7) month period following cessation of such
service, this option may, to the extent that you would have been entitled to
exercise this option, be exercised within twelve (12) months after your death by
the personal representative of your estate or by the person or persons to whom
your rights under this option shall pass by will, designation, or by the
applicable laws of descent and distribution, unless sooner terminated.
Status of Shareholder: Neither you nor any person or persons to whom
your rights and privileges under this option may pass shall be, or have any of
the rights or privileges of, a shareholder of the Company with respect to any of
the shares issuable upon the exercise of this option unless and until this
option has been exercised.
Continuation of Status as Director: Nothing in this Agreement shall
confer upon you any right to continue as a Director of the Company, or to
interfere in any way with the right of the Company to terminate your service as
a Director of the Company at any time.
Transfer of Option: This option and the rights and privileges conferred
hereby may not be transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise) other than by will, by the applicable
laws of descent and distribution or pursuant to the terms of a QDRO, and shall
not be subject to execution, attachment or similar process. Any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this option or of
any right or privilege conferred hereby, contrary to the Code or to the
provisions of this Agreement, or sale or levy or any attachment or similar
process upon the rights and privileges conferred hereby shall be null and void.
Vesting: The option shall be fully vested and become immediately
exercisable, subject to shareholder approval of the Plan.
Holding Period: Shares of Common Stock obtained upon the exercise of
this option may not be sold until six (6) months after the date the option was
granted.
Date of Grant: The date of grant of the option is March 25, 1999.
YOUR PARTICULAR ATTENTION IS DIRECTED TO ARTICLE V, SECTION 8 OF THE
PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND STATE
SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE EXERCISED AND
BEFORE THE COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY INTENDS TO MAINTAIN
AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SHARES THAT WILL BE
ISSUED UPON EXERCISE OF THIS OPTION BUT HAS NO OBLIGATION TO DO SO. IF THERE IS
NO EFFECTIVE REGISTRATION STATEMENT, YOU WILL NOT BE ABLE TO EXERCISE THE OPTION
OR SELL THE OPTION SHARES UNLESS EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND
STATE SECURITIES LAWS ARE AVAILABLE. SUCH EXEMPTIONS ARE VERY LIMITED AND MIGHT
BE UNAVAILABLE, CONSEQUENTLY, YOU MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE
OPTION AND TO RECEIVE SHARES UPON SUCH EXERCISE.
Please execute the Acceptance and Acknowledgement set forth below on
the enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
AMERICAN MOBILE SATELLITE
CORPORATION
By:
Accepted and Acknowledged
this ____ day of _______________, 199__
_____________________________ _________________________
Optionee's Signature Taxpayer I.D. Number
- 1 -
<PAGE>
NOTICE OF EXERCISE OF NONQUALIFIED STOCK OPTION
To: American Mobile Satellite Corporation
I, a resident of the State of _________________, hereby exercise my
nonqualified stock option granted by American Mobile Satellite Corporation (the
"Company") on _________________, 199__, subject to all the terms and provisions
thereof and of the 1999 Stock Option Plan for Non-Employee Directors referred to
therein, and notify the Company of my desire to purchase _______ shares of
Common Stock of the Company (the "Securities") at the exercise price of
$____________ per share which were offered to me pursuant to said option.
Dated:
___________________________ _____________________________
Taxpayer I.D. Number Optionee's Signature
Address:
- 2 -
<PAGE>
RECEIPT
___________________________________ hereby acknowledges receipt from
_______________________________ in payment for ____________ shares of Common
Stock of American Mobile Satellite Corporation, a Delaware corporation, of
$_______ in the form of:
/_/ Cash
/_/ Check (personal, cashier's or bank certified)
_______ shares of the Company's Common Stock, fair market value $______ per
share held by the Optionee for a period of at least six (6) months
Copy of irrevocable instructions to Broker
Date: For:
American Mobile Satellite Corporation
- 3 -
Exhibit 5
AMERICAN MOBILE SATELLITE CORPORATION
September 23, 1999
American Mobile Satellite Corporation
10802 Parkridge Boulevard
Reston, Virginia 20191-5416
Ladies and Gentlemen:
As set forth in the registration statement on Form S-8 (the
"Registration Statement") filed by American Mobile Satellite Corporation (the
"Company"), with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to 50,000 shares of the Company's common stock,
par value $.01 per share (the "Shares"), that may be issued pursuant to the
Company's 1999 Stock Option Plan for Non-employee Directors (the "Plan"),
certain legal matters in connection with the Shares ar being passed upon by me.
At your request, this opinion is being furnished to you for filing as Exhibit 5
to the Registration Statement.
In my capacity as General Counsel of the Company, I have examined the
Certificate of Incorporation and Bylaws of the Company, each as amended to date,
the originals, or copies, certified or otherwise identified, of corporate
records of the Company, including minute books of the Company, certificates of
public officials and of representatives of the Company, statutes and other
instruments and documents as a basis for the opinions expressed herein. In
giving such opinions, I have relied on certificates of officers of the Company
with respect to the accuracy of certain factual matters contained in such
certificates.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, I am of the opinion that:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the state of Delaware.
2. The issuance of the Shares, upon exercise of options pursuant
to the terms of the Plan, has been duly authorized by all necessary corporate
action on the part of the Company, and when the Shares are issued upon exercise
of options in accordance with the terms of the Plan against payment in
consideration therefor, the Shares will be validly issued, fully paid and
nonassessable.
The opinions set forth above are limited in all respects to the General
Corporation Law of the state of Delaware as in effect on the date hereof.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
/s/Randy S. Segal
Randy S. Segal
General Counsel
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated March 29, 1999 (except with respect to the matter discussed in Note 18, as
to which the date is July 7, 1999) and to all references to our Firm
incorporated by reference in or made a part of this registration statement on
Form S-8. Our report dated March 29, 1999 included in American Mobile Satellite
Corporation's Form 10-K for the year ended December 31, 1998 is no longer
appropriate since restated financial statements have been presented giving
effect to a business combination.
/s/ Arthur Andersen LLP
Vienna, VA
October 11, 1999
Exhibit 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference of our report dated February 12,
1999 in this registration statement on Form S-8 of American Mobile Satellite
Corporation (the "Company") with respect to the consolidated balance sheets of
XM Satellite Radio Holdings Inc. and Subsidiary (a development stage company) as
of December 31, 1998 and 1997 and the related consolidated statements of
operations, stockholders' equity (deficit) and cash flows for the years ended
December 31, 1998 and 1997 and for the perio from December 15, 1992 (date of
inception) to December 31, 1998.
Our report, dated February 12, 1999, contains an explanatory paragraph that
states that XM Radio has not commenced operations, has negative working capital
of $130,341,000 and is dependent upon additional debt and equity financings
which raise substantial doubt about XM Radio's ability to continue as a going
concern. The consolidated financial statements of XM Radio do not include any
adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
McLean, VA
October 11, 1999
