Exhibit 3(i)
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 a Restated Certificate of Incorporation of the Corporation was filed in such
office on January 29, 1975, January 23, 1981, January 14, 1986, January 8, 1992
and March 31, 1998. The Restated Certificate of Incorporation was amended by a
Certificate of Amendment filed with the Secretary of State of the State of
Delaware on June 2, 1999.
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 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 1,510,000,000 shares, consisting of 1,500,000,000
shares of Common Stock, par value $.01 per share (the "Common Stock") and
10,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock").
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, 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 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
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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 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.
ARTICLE VI
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 VI, 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;
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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 VII
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. 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 III on the first
annual meeting of stockholders following the time that this Sixth Restated
Certificate of Incorporation is effective (the "Effective Time"), Class I on the
second annual meeting following the Effective Time and Class II 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.
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ARTICLE VIII
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 IX
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 IX 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 X
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 X 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.
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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 XI
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 XII
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 XIII
AMENDMENTS OF CERTIFICATE
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Sixth 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
Sixth 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 this Article XIII
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.
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ARTICLE XIV
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 XV
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 Restated Certificate of
Incorporation to be signed by Thomas C. Stortz, its Executive Vice President,
this 23rd day of May, 2005.
By: /s/ Thomas C. Stortz
Title: Executive Vice President
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