EXHIBIT 3.2
US UNWIRED INC.
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION
US Unwired Inc., a Louisiana corporation (the "Corporation"), through
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its undersigned President and Secretary, hereby certifies that:
1. On October 25, 1999, the Board of Directors of the Corporation
(the "Board of Directors") adopted, pursuant to Section 33A of the Business
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Corporation Law of Louisiana (the "LBCL"), the following amendment to Article
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III of its Articles of Incorporation (the "Articles of Incorporation") to
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establish and fix the preferences, limitations and relative rights of a series
of preferred stock, and authorized the delivery of these Articles of Amendment
to the Secretary of State for filing pursuant to Section 32B of the LBCL.
2. Article III of the Articles of Incorporation is amended to add a
new Paragraph K to read in its entirety as follows:
"K. Of the 40,000,000 shares of authorized no par value per share Preferred
Stock, 500,000 shares shall constitute a separate series of Preferred Stock with
the voting powers and the preferences and rights hereinafter set forth.
Section 1. Designation and Number.
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(a) The shares of such series shall be designated as Senior
Redeemable Convertible Preferred Stock, Series A (the "Preferred Stock"). The
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number of shares initially constituting the Preferred Stock shall be 500,000,
which number may be decreased (but not increased) by the Board of Directors
without a vote of stockholders; provided, however, that such number may not be
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decreased below the number of then outstanding shares of Preferred Stock.
(b) The Preferred Stock shall, with respect to rights on liquidation,
dissolution or winding up, rank prior to all classes and series of Junior Stock
(as defined below) of the Corporation now or hereafter authorized including,
without limitation, the Common Stock.
(c) Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in Section 11 below.
Section 2. Dividends and Distributions.
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Each holder of shares of Preferred Stock shall be entitled to receive
dividends and other distributions (including, without limitation, any options,
warrants
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or other rights to acquire capital stock of the Corporation whether or not
pursuant to a shareholder rights plan, "poison pill" or similar arrangement, or
other property or assets) on a parity with each holder of Common Stock. Such
dividends and distributions shall be payable on each share of Preferred Stock in
an amount equal to the dividends per share payable on the number of shares of
Common Stock into which such share of Preferred Stock would be convertible under
Section 8 hereof on the record date for determining eligibility to receive such
dividends, or if no record date is established, on the date such dividends are
actually paid.
Section 3. Voting Rights.
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In addition to any voting rights provided by law, the holders of
shares of Preferred Stock shall have the following voting rights:
(a) So long as the Preferred Stock is outstanding, each share of
Preferred Stock shall entitle the holder thereof to vote, in person or by proxy,
at a special or annual meeting of stockholders, on all matters voted on by
holders of the class of Common Stock into which the Preferred Stock is then
convertible voting together as a single class with other shares of such class of
Common Stock entitled to vote thereon. With respect to any such vote, each share
of Preferred Stock shall entitle the holder thereof to cast that number of votes
per share as is equal to the number of votes that such holder would be entitled
to cast had such holder converted his shares of Preferred Stock into shares of
such class of Common Stock pursuant to Section 8 on the record date for
determining the stockholders of the Corporation eligible to vote on any such
matters.
(b) Unless the consent or approval of a greater number of shares
shall then be required by law, the affirmative vote of the holders of at least
two thirds of the outstanding shares of Preferred Stock, voting separately as a
single class, in person or by proxy, at a special or annual meeting of
stockholders called for the purpose, shall be necessary to:
(i) authorize, increase the number of shares of, or issue any
class of capital stock pari passu or senior to the Preferred Stock as to
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dividends or liquidation preference (including additional shares of Preferred
Stock) and including any other preferred stock (whether or not junior as to
dividends and liquidation preference) having mandatory or optional redemption
dates prior to January 31, 2010;
(ii) authorize, adopt or approve an amendment to the Charter
that would increase or decrease the par value of the shares of Preferred Stock,
or adversely alter or change the powers, preferences or special rights of the
shares of Preferred Stock, or otherwise affect the rights of the shares of the
Preferred Stock adversely, including, without limitation, the liquidation
preference provisions;
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(iii) approve any sale or merger of a Material Subsidiary;
(iv) approve any sale of the Corporation's equity interest in
Meretel, or approve any consent that the Corporation is entitled to give by vote
or otherwise in favor of any merger, reorganization, consolidation or
recapitalization (or similar transaction) of Meretel, or a sale of all or
substantially all of the assets of Meretel;
(v) approve any Change of Control in which a vote of the
Common Stock of the Company would be required; or
(vi) approve any merger, reorganization, consolidation or
recapitalization (or similar transaction) of the Corporation, or sale of all or
substantially all of the assets of the Corporation in which a vote of the Common
Stock of the Company would be required.
(c)(i) At each meeting of stockholders at which the holders of shares
of Preferred Stock shall have the right, voting separately as a single class, to
take any action, the presence in person or by proxy of the holders of record of
one third of the total number of shares of Preferred Stock then outstanding and
entitled to vote on the matter shall be necessary and sufficient to constitute a
quorum. At any such meeting or at any adjournment thereof:
(A) the absence of a quorum of the holders of shares of
Preferred Stock shall not prevent the election of directors, and the absence of
a quorum of the holders of shares of any other class or series of capital stock
shall not prevent the taking of any action as provided in this Section 3; and
(B) in the absence of a quorum of the holders of shares
of Preferred Stock, a majority of the holders of such shares present in person
or by proxy shall have the power to adjourn the meeting as to the actions to be
taken by the holders of shares of Preferred Stock from time to time and place to
place without notice other than announcement at the meeting until a quorum shall
be present.
(ii) For taking of any action as provided in Section 3(b) by
the holders of shares of Preferred Stock, each such holder shall have one vote
for each share of such stock standing in his name on the transfer books of the
Corporation as of any record date fixed for such purpose or, if no such date be
fixed, at the close of business on the Business Day next preceding the day on
which notice is given, or if notice is waived, at the close of business on the
Business Day next preceding the day on which the meeting is held; provided,
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however, that shares of Preferred Stock held by the Corporation or any Affiliate
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of the Corporation shall not be deemed to be outstanding for purposes of taking
any action as provided in this Section 3.
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Section 4. Certain Restrictions.
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(a) Whenever the Corporation shall not have converted Preferred
Stock at a time required by Section 8 or 10, at such time and thereafter until
all conversion obligations provided in Section 8 or 10 that have come due shall
have been satisfied, or whenever the Corporation shall not have redeemed shares
of Preferred Stock at a time required by Section 5, at such time and thereafter
until all redemption obligations provided in Section 5 that have come due shall
have been satisfied or all necessary funds have been set apart for payment, the
Corporation shall not: (i) declare or pay dividends, or make any other
distributions, on any shares of Junior Stock or (ii) declare or pay dividends,
or make any other distributions, on any shares of Parity Stock.
(b) Whenever the Corporation shall not have converted shares of
Preferred Stock at a time required by Section 8 or 10 at such time and
thereafter until all conversion obligations provided in Section 8 or 10 that
have come due shall have been satisfied, or whenever the Corporation shall not
have redeemed shares of Preferred Stock at a time required by Section 5, at such
time and thereafter until all redemption obligations provided in Section 5 that
have come due shall have been satisfied or all necessary funds have been set
apart for payment, the Corporation shall not redeem, purchase or otherwise
acquire for consideration any shares of Junior Stock or Parity Stock; provided,
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however, that (A) the Corporation may accept shares of any Senior Stock, Parity
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Stock or Junior Stock for conversion into Junior Stock, (B) the Corporation may
at any time redeem, purchase or otherwise acquire shares of any Parity Stock
pursuant to any mandatory redemption, put, sinking fund or other similar
obligation contained in such Parity Stock, pro rata with the Preferred Stock in
proportion to the total amount then required to be applied by the Corporation to
redeem, repurchase, or otherwise acquire shares of Preferred Stock and shares of
such Parity Stock, and (C) the Corporation may at any time redeem, purchase or
otherwise acquire shares of its capital stock in accordance with Article III(F)
of the Articles of Incorporation of the Corporation.
(c) The Corporation shall not permit any Subsidiary of the
Corporation, or cause any other Person, to purchase or otherwise acquire for
consideration any shares of capital stock of the Corporation unless the
Corporation could, pursuant to Section 4(b), purchase such shares at such time
and in such manner.
Section 5. Redemption.
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(a) On January 31, 2010 (the "Redemption Date"), the Corporation
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shall redeem all of the shares of Preferred Stock then outstanding, at a price
per share (the "Redemption Price") equal to (A) the Stated Value, plus (B) an
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amount per share
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equal to all declared and unpaid dividends thereon, to the Redemption Date, in
immediately available funds.
(b) Notice of any redemption of shares of Preferred Stock
pursuant to Section 5(a) shall be given by publication in a newspaper of general
circulation in the Borough of Manhattan, The City of New York (if such
publication shall be required by applicable law, rule, regulation or securities
exchange requirement), not less than 30, nor more than 60, days prior to the
date fixed for redemption. In any case, a similar notice shall be mailed at
least 30, but not more than 60, days prior to the date fixed for redemption to
each holder of shares of Preferred Stock to be redeemed, at such holder's
address as it appears on the transfer books of the Corporation. In order to
facilitate the redemption of shares of Preferred Stock, the Board of Directors
may fix a record date for the determination of shares of Preferred Stock to be
redeemed, or may cause the transfer books of the Corporation for the Preferred
Stock to be closed, not more than 60 days or less than 30 days prior to the date
fixed for such redemption.
(c) At any time after a notice of redemption shall have been
mailed and before the Redemption Date, the Corporation shall deposit for the
benefit of the holders of shares of Preferred Stock to be redeemed the funds
necessary for such redemption with a bank or trust company having a capital and
surplus of at least $200,000,000. Any moneys so deposited by the Corporation and
unclaimed at the end of one year from the date designated for such redemption
shall revert to the general funds of the Corporation. After such reversion, any
such bank or trust company, upon demand, shall pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust company shall be relieved of
all responsibility in respect thereof and any holder of shares of Preferred
Stock to be redeemed shall look only to the Corporation for the payment of the
Redemption Price, subject to Article VIII of the Charter and applicable laws
relating to abandoned property. In the event that moneys are deposited pursuant
to this Section 5(c) in respect of shares of Preferred Stock that are converted
in accordance with the provisions of Section 8, such moneys shall, upon such
conversion, revert to the general funds of the Corporation and, upon demand,
such bank or trust company shall pay over to the Corporation such moneys and
shall be relieved of all responsibilities to the holders of such converted
shares in respect thereof. Any interest accrued on funds deposited pursuant to
this Section 5(c) shall be paid from time to time to the Corporation for its own
account.
(d) Notice of redemption having been given as aforesaid, upon the
deposit of funds pursuant to Section 5(c) in respect of shares of Preferred
Stock to be redeemed pursuant to Section 5(a), notwithstanding that any
certificates for such shares shall not have been surrendered for cancellation,
from and after the Redemption Date (i) the shares represented thereby shall no
longer be deemed outstanding, (ii) the rights to receive dividends thereon shall
cease to accrue, and (iii) all rights of the holders of shares of Preferred
Stock to be redeemed shall cease and terminate, excepting only the
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right to receive the Redemption Price therefor and the right to convert such
shares into shares of Common Stock until the close of business on the Redemption
Date, in accordance with Section 8; provided, however, that if the Corporation
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shall default in the payment of the Redemption Price, the shares of Preferred
Stock that were to be redeemed shall thereafter be deemed to be outstanding and
the holders thereof shall have all of the rights of a holder of Preferred Stock
until such time as such default shall no longer be continuing or shall have been
waived by holders of at least a majority of the then outstanding shares of
Preferred Stock.
Section 6. Reacquired Shares.
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Any shares of Preferred Stock converted, exchanged, redeemed,
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares of Preferred Stock shall upon their cancellation become authorized but
unissued shares of preferred stock, no par value, of the Corporation and, upon
the filing of an appropriate Certificate of Designation with the Secretary of
State of the State of Louisiana, may be reissued as part of another series of
preferred stock, no par value, of the Corporation, but in any event may not be
reissued as shares of Preferred Stock unless all of the shares of Preferred
Stock issued on the Issue Date shall have already been redeemed or converted.
Section 7. Liquidation, Dissolution or Winding Up.
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(a) If the Corporation shall commence a voluntary case under the
United States bankruptcy laws or any applicable bankruptcy, insolvency or
similar law of any other country, or consent to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Corporation or of any substantial part of its property, or make
an assignment for the benefit of its creditors, or admit in writing its
inability to pay its debts generally as they become due or if a decree or order
for relief in respect of the Corporation shall be entered by a court having
jurisdiction in the premises in an involuntary case under the United States
bankruptcy laws or any applicable bankruptcy, insolvency or similar law of any
other country, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and on account of any such event the Corporation shall liquidate,
dissolve or wind up, or if the Corporation shall otherwise liquidate, dissolve
or wind up (any such event, a "Liquidation"), no distribution shall be made to
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the holders of shares of Junior Stock unless, prior thereto, the holders of
shares of Preferred Stock shall have received an amount per share of Preferred
Stock equal to the greater of (i) the Stated Value, plus all declared and unpaid
dividends to the date of distribution, or (ii) the proceeds in Liquidation that
the holders of Preferred
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Stock would have received in respect of all shares of Common Stock issuable to
such holders upon conversion of a share of Preferred Stock owned by such
holders, assuming that such share of Preferred Stock owned by such holders had
been converted into shares of Common Stock in accordance with Section 8
immediately prior to the Liquidation (such greater amount being the "Preferred
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Stock Liquidation Amount").
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(b) Notwithstanding the foregoing, if the assets distributable
upon a Liquidation shall be insufficient to pay in full the Preferred Stock
Liquidation Amount on all shares of Preferred Stock outstanding and any amount
payable to the holders of Parity Stock, then all of the assets available after
payment of any amounts payable on the Senior Stock shall be distributed among
the holders of the Preferred Stock and the Parity Stock ratably in proportion to
the respective amounts of the assets to which they would otherwise be entitled.
(c) Neither the consolidation or merger of the Corporation with
or into any other Person nor the sale or other distribution to another Person of
all or substantially all the assets, property or business of the Corporation,
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation for purposes of this Section 7.
Section 8. Voluntary Conversion.
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(a) Any holder of Preferred Stock shall have the right, at its
option, at any time and from time to time, to convert, subject to the terms and
provisions of this Section 8, any or all of such holder's shares of Preferred
Stock into such number of fully paid and non-assessable shares of Class B Common
Stock as is equal, subject to Section 8(g), to the product of the number of
shares of Preferred Stock being so converted multiplied by the quotient of (i)
Stated Value divided by (ii) the Conversion Price (as defined below) then in
effect, except that with respect to any shares which shall be called for
redemption, such right shall terminate at the close of business on the date of
redemption for such shares, unless in any such case the Corporation shall
default in payment due upon redemption thereof. The "Conversion Price" shall be
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$26.55, subject to adjustment as set forth in Section 8(d). Such conversion
right shall be exercised by the surrender of the shares to be converted to the
Corporation at any time during usual business hours at its principal place of
business to be maintained by it, accompanied by written notice that the holder
elects to convert such shares and specifying the name or names (with address) in
which a certificate or certificates for shares of Class B Common Stock are to be
issued and (if so required by the Corporation) by a written instrument or
instruments of transfer in form reasonably satisfactory to the Corporation duly
executed by the holder or its duly authorized legal representative and transfer
tax stamps or funds therefor, if required pursuant to Section 8(k). All shares
of Preferred Stock surrendered for conversion shall be
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delivered to the Corporation for cancellation and canceled by it and no shares
of Preferred Stock shall be issued in lieu thereof.
If a holder of Preferred Stock Transfers (as defined in Article IV(B)
of the Corporation's Articles of Incorporation) any or all of such holder's
shares of Preferred Stock other than (i) to the Corporation or to a Qualified
Holder or Holders, (ii) pursuant to any merger, consolidation, share exchange or
disposition of all or substantially all of the Corporation's assets that is
approved in the manner provided in Article X(A) of the Corporation's Articles of
Incorporation or (iii) by any bona fide pledge or hypothecation of shares to
secure an obligation of such holder, this Section 8 shall apply to the holder or
holders of shares of Preferred Stock that have been Transferred, except that any
reference herein to "Class B Common Stock" shall mean "Class A Common Stock".
In the event that a holder of Preferred Stock Transfers any or all of such
holder's shares of Preferred Stock other than in accordance with clauses (i),
(ii) or (iii) of the preceding sentence, the Company shall not be obligated with
respect to such Transferred Shares to issue shares of Class B Common Stock on
its books, pay dividends on shares of Class B Common Stock to the transferee
thereof or otherwise regard the transferee thereof as a Class B stockholder. If
any Transfer shall not cause the transferee holder or holders of Preferred Stock
to have the right to convert the Transferred shares of Preferred Stock to Class
A Common Stock (instead of Class B Common Stock), then any subsequent Transfer
by the holder or pledgor, as the case may be, of such Preferred Stock shall be
subject to the terms and conditions set forth herein, including exceptions.
(b) As promptly as practicable after the surrender, as herein
provided, of any shares of Preferred Stock for conversion pursuant to Section
8(a), the Corporation shall deliver to the holder of such shares so surrendered,
a certificate or certificates representing the number of fully paid and non-
assessable shares of Class B Common Stock into which such shares of Preferred
Stock may be or have been converted in accordance with the provisions of this
Section 8. Subject to the following provisions of this paragraph and of Section
8(d), such conversion shall be deemed to have been made immediately prior to the
close of business on the date that such shares of Preferred Stock shall have
been surrendered in satisfactory form for conversion, and the Person or Persons
entitled to receive the Class B Common Stock deliverable upon conversion of such
shares of Preferred Stock shall be treated for all purposes as having become the
record holder or holders of such Class B Common Stock at such time, and such con
version shall be at the Conversion Price in effect at such time; provided,
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however, that no surrender shall be effective to constitute the Person or
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Persons entitled to receive the Class B Common Stock deliverable upon such
conversion as the record holder or holders of such Class B Common Stock while
the share transfer books of the Corporation shall be closed (but not for any
period in excess of five days), but such surrender shall be effective to
constitute the Person or Persons entitled to receive such Class B Common Stock
as the record holder or holders thereof for all purposes
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immediately prior to the close of business on the next succeeding day on which
such share transfer books are open, and such conversion shall be deemed to have
been made at, and shall be made at the Conversion Price in effect at, such time
on such next succeeding day.
(c) To the extent permitted by law, when shares of Preferred Stock
are converted, all dividends which have been declared and are unpaid on the
Preferred Stock so converted to the date of conversion shall be immediately due
and payable and must accompany the shares of Class B Common Stock issued upon
such conversion.
(d) The Conversion Price shall be subject to adjustment as follows:
(i) If the Corporation shall, at any time or from time to time,
(A) pay a dividend or make a distribution (other than a dividend or distribution
paid to holders of Preferred Stock in the manner provided in Section 2) on the
outstanding shares of Common Stock in capital stock (which, for purposes of this
Section 8(d) shall include, without limitation, any options, warrants or other
rights to acquire capital stock) of the Corporation, (B) subdivide the
outstanding shares of Common Stock into a larger number of shares, (C) combine
the outstanding shares of Common Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a reclassification of any or all
classes of Common Stock, then, and in each such case, the Conversion Price in
effect immediately prior to such event shall be adjusted (and any other
appropriate actions shall be taken by the Corporation) so that the holder of any
share of Preferred Stock thereafter surrendered for conversion shall be entitled
to receive the number of shares of Class B Common Stock or other securities of
the Corporation that such holder would have owned or would have been entitled to
receive upon or by reason of any of the events described above, had such share
of Preferred Stock been converted immediately prior to the occurrence of such
event. An adjustment made pursuant to this Section 8(d)(i) shall become
effective retroactively (A) in the case of any such dividend or distribution, to
a date immediately following the close of business on the record date for the
determination of holders of Common Stock entitled to receive such dividend or
distribution, or (B) in the case of any such subdivision, combination or
reclassification, to the close of business on the day upon which such corporate
action becomes effective.
(ii) If the Corporation shall, at any time or from time to time,
issue shares of Common Stock (or securities convertible into or exchangeable for
Common Stock, or any options, warrants or other rights to acquire shares of
Common Stock) for a consideration per share less than the Conversion Price per
share of Common Stock then in effect at the record date or Issuance Date (as
defined below), as the case may be (the "Date"), referred to in the following
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sentence (treating the price per share of any security convertible or
exchangeable or exercisable into Common Stock as equal to (A) the sum of the
price for such security convertible, exchangeable
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or exercisable into Common Stock plus any additional consideration payable
(without regard to any anti-dilution adjustments) upon the conversion, exchange
or exercise of such security into Common Stock divided by (B) the number of
shares of Common Stock initially under lying such convertible, exchangeable or
exercisable security), then, and in each such case, the Conversion Price then in
effect shall be adjusted by dividing the Conversion Price in effect on the day
immediately prior to the Date by a fraction (x) the numerator of which shall be
the sum of the number of shares of Common Stock outstanding on the Date plus the
number of additional shares of Common Stock issued or to be issued (or the
maximum number into which such convertible or exchangeable securities initially
may convert or exchange or for which such options, warrants or other rights
initially may be exercised) and (y) the denominator of which shall be the sum of
the number of shares of Common Stock outstanding on the Date plus the number of
shares of Common Stock which the aggregate consideration for the total number of
such additional shares of Common Stock so issued or be issued upon the
conversion, exchange or exercise of such convertible or exchangeable securities
or options, warrants or other rights (plus the aggregate amount of any
additional consideration initially payable upon such conversion, exchange or
exercise of such security) would purchase at the Conversion Price on the Date.
Such adjustment shall be made whenever such shares, securities, options,
warrants or other rights are issued, and shall become effective retroactively to
a date immediately following the close of business (1) in the case of issuance
to stockholders of the Corporation, as such, on the record date for the
determination of stockholders entitled to receive such shares, securities,
options, warrants or other rights and (2) in all other cases, on the date of
such issuance ("Issuance Date"); provided that:
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(A) the determination as to whether an adjustment is
required to be made pursuant to this Section 8(d)(ii) shall be made upon the
issuance of such shares or such convertible or exchangeable securities, options,
warrants or other rights;
(B) if any convertible or exchangeable securities, options,
warrants or other rights (or any portions thereof) which shall have given rise
to an adjustment pursuant to this Section 8(d)(ii) shall have expired or
terminated without the exercise thereof and/or if by reason of the terms of such
convertible or exchangeable securities, options, warrants or other rights there
shall have been an increase or increases, with the passage of time or otherwise,
in the price payable upon the exercise or conversion thereof, then the
Conversion Price hereunder shall be readjusted (but to no greater extent than
originally adjusted) on the basis of (x) eliminating from the computation any
additional shares of Common Stock corresponding to such convertible or
exchangeable securities, options, warrants or other rights as shall have expired
or terminated, (y) treating the additional shares of Common Stock, if any,
actually issued or issuable pursuant to the previous exercise of such
convertible or exchangeable securities, options, warrants or other rights as
having
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been issued for the consideration actually received and receivable therefor, and
(z) treating any of such convertible or exchangeable securities, options,
warrants or other rights which remain outstanding as being subject to exercise
or conversion on the basis of such exercise or conversion price as shall be in
effect at this time; and
(C) no adjustment in the Conversion Price shall be made
pursuant to this Section 8(d)(ii) as a result of any issuance of securities by
the Corporation in respect of which an adjustment to the Conversion Price is
made pursuant to Section 8(d)(i).
(ii) If the Corporation shall, at any time or from time to time,
distribute to all holders of shares of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Corporation is the resulting or surviving corporation and the Common Stock is
not changed or exchanged) cash, evidences of indebtedness of the Corporation or
another issuer, securities of the Corporation or another issuer or other assets
(excluding (A) dividends or distributions paid or made to holders of shares of
Preferred Stock in the manner provided in Section 2, and (B) dividends payable
in shares of Common Stock for which adjustment is made under Section 8(d)(i)) or
rights or warrants to subscribe for or purchase securities of the Corporation
(excluding those referred to in Section 8(d)(ii) or those in respect of which an
adjustment in the Conversion Price is made pursuant to Section 8(d)(i) or (ii)),
then, and in each such case, the Conversion Price then in effect shall be
adjusted by dividing the Conversion Price in effect immediately prior to the
date of such distribution by a fraction (x) the numerator of which shall be the
Market Price of the Common Stock on the record date referred to below and (y)
the denominator of which shall be such Market Price of the Common Stock less the
then Fair Market Value (as determined by the Board of Directors of the
Corporation) of the portion of the cash, evidences of indebtedness, securities
or other assets so distributed or of such subscription rights or warrants
applicable to one share of Common Stock (but such denominator not to be less
than one). Such adjustment shall be made whenever any such distribution is made
and shall become effective retroactively to a date immediately following the
close of business on the record date for the determination of stockholders
entitled to receive such distribution.
(iv) If the Corporation, at any time or from time to time, shall
take any action affecting its Common Stock similar to or having an effect
similar to any of the actions described in any of Section 8(d)(i) through
Section 8(d)(iii), inclusive, or Section 8(h) (but not including any action
described in any such Section) and the Board of Directors of the Corporation in
good faith determines that it would be equitable in the circumstances to adjust
the Conversion Price as a result of such action, then, and in each such case,
the Conversion Price shall be adjusted in such manner and at such time as the
Board of Directors of the Corporation in good faith determines would be
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equitable in the circumstances (such determination to be evidenced in a
resolution, a certified copy of which shall be mailed to the holders of the
Preferred Stock).
(v) Notwithstanding anything herein to the contrary, no
adjustment under this Section 8(d) need be made to the Conversion Price unless
such adjustment would require an increase or decrease equal to at least 1% of
the Conversion Price then in effect. Any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment, which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease equal to at least 1% of such
Conversion Price. Any adjustment to the Conversion Price carried forward and not
theretofore made shall be made immediately prior to the conversion of any shares
of Preferred Stock pursuant hereto.
(vi) Notwithstanding anything to the contrary contained
herein, no adjustment under this Section 8(d) shall be made upon the issuance of
shares of Common Stock upon the exercise of up to 2,000 options with respect to
Common Stock with an exercise price of $6.00 per share.
(e) If the Corporation shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or other
distribution, and shall thereafter and before the distribution to stockholders
thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the Conversion Price then in
effect shall be required by reason of the taking of such record.
(f) Upon any increase or decrease in the Conversion Price, then,
and in each such case, the Corporation promptly shall deliver to each registered
holder of Pre ferred Stock at least five Business Days prior to effecting any of
the foregoing transactions, a certificate, signed by the President or a Vice-
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Corporation, setting forth in reasonable detail the
event requiring the adjustment and the method by which such adjustment was
calculated and specifying the increased or decreased Conversion Price then in
effect following such adjustment.
(g) No fractional shares or scrip representing fractional shares
shall be issued upon the conversion of any shares of Preferred Stock. If more
than one share of Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate Stated Value
of the shares of Preferred Stock so surrendered. If the conversion of any share
or shares of Preferred Stock results in a fraction, an amount equal to such
fraction multiplied by the Current Market Price of the Common Stock on the
Business Day preceding the day of conversion shall be paid to such holder in
cash by the Corporation.
13
(h) In case of any capital reorganization or reclassification or
other change of outstanding shares of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value), or
in case of any consolidation or merger of the Corporation with or into another
Person (other than a consolidation or merger in which the Corporation is the
resulting or surviving Person and which does not result in any reclassification
or change of outstanding Common Stock) (any of the foregoing, a "Transaction"),
-----------
the Corporation, or such successor or purchasing Person, as the case may be,
shall execute and deliver to each holder of Preferred Stock at least ten
Business Days prior to effecting any of the foregoing Transactions a certificate
that the holder of each share of Preferred Stock then outstanding shall have the
right thereafter to convert such share of Preferred Stock into the kind and
amount of shares of stock or other securities (of the Corporation or another
issuer) or property or cash receivable upon such Transaction by a holder of the
number of shares of Common Stock into which such share of Preferred Stock could
have been converted immediately prior to such Transaction. Such certificate
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 8. If, in the case
of any such Transaction, the stock, other securities, cash or property
receivable thereupon by a holder of Common Stock includes shares of stock or
other securities of a Person other than the successor or purchasing Person and
other than the Corporation, which controls or is controlled by the successor or
purchasing Person or which, in connection with such Transaction, issues stock,
securities, other property or cash to holders of Common Stock, then such
certificate also shall be executed by such Person, and such Person shall, in
such certificate, specifically acknowledge the obligations of such successor or
purchasing Person to issue such stock, securities, other property or cash to the
holders of Preferred Stock upon conversion of the shares of Preferred Stock as
provided above. The provisions of this Section 8(h) and any equivalent thereof
in any such certificate similarly shall apply to successive Transactions.
(i) In case at any time or from time to time:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock;
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or purchase
any shares of stock of any class or of any other rights or warrants;
(iii) there shall be any reclassification of the Common
Stock, or any consolidation or merger to which the Corporation is a party and
for which approval of any shareholders of the Corporation is required, or any
sale or other disposition of all or substantially all of the assets of the
Corporation; or
14
(iv) there shall be any voluntary or involuntary
dissolution, liquidation or winding up of the Corporation;
then the Corporation shall mail to each holder of shares of Preferred Stock at
such holder's address as it appears on the transfer books of the Corporation, as
promptly as possible but in any event at least ten days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution or rights or warrants
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up is expected to
become effective. Such notice also shall specify the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their Common Stock for shares of stock or other securities or property or cash
deliverable upon such reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up.
(j) The Corporation shall at all times reserve and keep
available for issuance upon the conversion of the Preferred Stock pursuant to
Section 8(a) or 10(a), such number of its authorized but unissued shares of
Common Stock as will from time to time be sufficient to permit the conversion of
all outstanding shares of Preferred Stock, and shall take all action required to
increase the authorized number of shares of Common Stock if at any time there
shall be insufficient authorized but unissued shares of Common Stock to permit
such reservation or to permit the conversion of all outstanding shares of
Preferred Stock.
(k) The issuance or delivery of certificates for Common Stock
upon the conversion of shares of Preferred Stock pursuant to Section 8(a) or
10(a) or other securities shall be made without charge to the converting holder
of shares of Preferred Stock for such certificates or for any tax in respect of
the issuance or delivery of such certificates or the securities represented
thereby, and such certificates shall be issued or delivered in the respective
names of, or (subject to compliance with the applicable provisions of federal
and state securities laws) in such names as may be directed by, the holders of
the shares of Preferred Stock converted; provided, however, that the Corporation
-------- -------
shall not be required to pay any transfer tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such certificate in a
name other than that of the holder of the shares of Preferred Stock converted,
and the Corporation shall not be required to issue or deliver such certificate
unless or until the Person or Persons requesting the issuance or delivery
thereof shall have paid to the Corporation the amount of such transfer tax or
shall have established to the reasonable satisfaction of the Corporation that
such transfer tax has been paid.
15
Section 9. Certain Remedies.
----------------
Any registered holder of Preferred Stock shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Certificate of Designation and to enforce specifically the terms and provisions
of this Certificate of Designation in any court of the United States or any
state thereof having jurisdiction, this being in addition to any other remedy to
which such holder may be entitled at law or in equity.
Section 10. Mandatory Conversion.
--------------------
(a) If (i) on the IPO Date, the initial offering price to the
public of the Common Stock exceeds an amount which would result in the Fund
achieving at least a 20% per annum Internal Rate of Return, or, (ii at any time
after the IPO Date, for at least 30 consecutive Trading Days the Market Price of
the Common Stock at the end of each Trading Day during such 30-day period
exceeds an amount which would result in the Fund achieving at least a 20% per
annum Internal Rate of Return, then within 10 Business Days after the IPO Date
or such 30-day period, as the case may be, the Corporation shall have the right,
at its sole option and election, to require all the holders of Preferred Stock
to convert all (but not less than all) of their shares of Preferred Stock into
such number of fully paid and non-assessable shares of Class B Common Stock as
is equal, subject to Section 8(g), to the product of the number of shares of
Preferred Stock being so converted multiplied by the quotient of (i) the Stated
Value per share divided by (ii) the Conversion Price in effect on the date of
conversion pursuant to this Section 10 (the "Mandatory Conversion").
--------------------
(b) To the extent permitted by law, when shares of Preferred
Stock are converted, all dividends declared and unpaid on the Preferred Stock so
converted to the date of conversion shall be immediately due and payable and
must accompany the shares of Common Stock issued upon such conversion.
(c) Notice of a conversion of shares of Preferred Stock pursuant
to Section 10(a) shall be given by publication in a newspaper of general
circulation in the Borough of Manhattan, The City of New York (if such
publication shall be required by applicable law, rule, regulation or securities
exchange requirement), not less than 30, nor more than 60, days prior to the
date fixed by the Corporation for such mandatory conversion (the "Mandatory
---------
Conversion Date") and a similar notice shall be mailed at least 30, but not more
- ---------------
than 60 days prior to the Mandatory Conversion Date to each holder at such
holder's address as it appears on the transfer books of the Corporation. In
order to facilitate the conversion of shares of Preferred Stock hereunder the
Board of Directors may fix a record date for the determination of shares of
Preferred Stock to be converted, or may cause the transfer books of the
Corporation for the Preferred Stock
16
to be closed, not more than 60 or less than 30 days prior to the Mandatory
Conversion Date.
(d) Unless otherwise agreed, on or prior to the Mandatory
Conversion Date, the Corporation shall deposit for the benefit of the holders of
shares of Preferred Stock to be converted the shares of Common Stock and cash in
the amount of declared and unpaid dividends (the "Dividends") necessary for such
---------
conversion with a bank or trust company having a capital and surplus of at least
$200,000,000. Any shares of Common Stock and Dividends so deposited by the
Corporation and unclaimed at the end of one year from the date designated for
such conversion shall revert to the Corporation. After such reversion, any such
bank or trust company shall, upon demand, return to the Corporation such
unclaimed shares of Common Stock and Dividends and thereupon such bank or trust
company shall be relieved of all responsibility in respect thereof and any
holder of shares of Preferred Stock to be converted shall look only to the
Corporation for the delivery of the shares of Common Stock and Dividends,
subject to Article VIII of the Charter and applicable laws relating to abandoned
property. In the event that shares of Common Stock and Dividends are deposited
pursuant to this Section 10(e) in respect of shares of Preferred Stock that are
converted prior to the Mandatory Conversion Date in accordance with the
provisions of Section 8, such shares of Common Stock and Dividends shall, upon
such conversion, revert to the Corporation and, upon demand, such bank or trust
company shall return to the Corporation such shares of Common Stock and
Dividends and shall be relieved of all responsibilities to the holders of such
converted shares in respect thereof. Any dividends accrued on shares of Common
Stock deposited pursuant to this Section 10(e) shall accrue for the accounts of,
and be payable to, the holders of shares of Preferred Stock to be exchanged
therefor. Any interest accruing on the Dividends shall be for the benefit and be
payable to the Corporation.
(e) Notice of Mandatory Conversion having been given as
aforesaid, upon the deposit of shares of Common Stock and Dividends pursuant to
Section 10(e) in respect of shares of Preferred Stock to be converted pursuant
to Section 10(a), notwithstanding that any certificates for such shares shall
not have been surrendered for cancellation, from and after the Mandatory
Conversion Date (i) the shares represented thereby shall no longer be deemed
outstanding, (ii) the rights to receive dividends thereon shall cease to accrue,
and (iii) all rights of the holders of shares of Preferred Stock to be converted
shall cease and terminate, excepting only the right to receive the shares of
Common Stock and Dividends and the right to convert such Preferred Stock into
shares of Common Stock until the close of business on the Mandatory Conversion
Date, in accordance with Section 8; provided, however, that if the Corporation
-------- -------
shall in the execution and delivery of the shares of Common Stock or Dividends,
the shares of Preferred Stock that were to be converted shall thereafter be
deemed to be outstanding and the holders thereof shall have all of the rights of
a holder of Preferred Stock until such time as such default shall no longer be
continuing or shall have been
17
waived by holders of at least a majority of the then outstanding shares of
Preferred Stock.
Section 11. Definitions.
-----------
For the purposes of this Amendment, the following terms shall
have the meanings indicated:
"Affiliate" shall have the meaning ascribed to such term in Rule
---------
12b-2 of the General Rules and Regulations under the Exchange Act; provided that
--------
"Affiliate" shall not include the Purchaser or any Affiliate of the Purchaser.
"Business Day" shall mean any day other than a Saturday, Sunday
------------
or other day on which commercial banks in The City of New York, New
York are authorized or required by law or executive order to close.
"Change of Control" shall mean:
-----------------
(a) any Person or "group" (within the meaning of Section
13(d)(3) of the Exchange Act), other than a Principal Shareholder, becoming the
beneficial owner, directly or indirectly, of outstanding shares of stock of the
Corporation entitling such Person or Persons to exercise 50% or more of the
total votes entitled to be cast at a regular or special meeting, or by action by
written consent, of the stockholders of the Corporation in the election of
directors (the term "beneficial owner" shall be determined in accordance with
Rule 13d-3 of the Exchange Act);
(b) a majority of the Board of Directors of the Corporation
consisting of Persons other than Continuing Directors;
(c) the sale or other disposition of all or substantially all
the assets of the Corporation in one transaction or in a series of related
transactions; or
(d) any transaction occurring, the result of which is that the
Common Stock is not required to be registered under Section 12 of the Exchange
Act and that the holders of Common Stock do not receive common stock of the
Person surviving such transaction which is required to be registered under
Section 12 of the Exchange Act.
"Charter" shall mean the Articles of Incorporation of the
-------
Corporation.
"Class A Common Stock" shall mean the Class A common stock, par
--------------------
value $0.01 per share, of the Corporation.
18
"Class B Common Stock" shall mean the Class B common stock, par
--------------------
value $0.01 per share, of the Corporation.
"Common Stock" shall mean the Class A Common Stock, the Class B
------------
Common Stock and each other class of capital stock, of the Corporation that does
not have a preference over any other class of capital stock of the Corporation
as to dividends or upon liquidation, dissolution or winding up of the
Corporation and, in each case, shall include any other class of capital stock of
the Corporation into which such stock is reclassified or reconstituted.
"Continuing Director" shall mean any member of the Board of
-------------------
Directors as of the date hereof and any other member of the Board of Directors
who shall be recommended or elected to succeed a Continuing Director by a
majority of Continuing Directors who are the members of the Board of Directors
or by the holders of the Preferred Stock.
"Current Market Price" per share shall mean, on any date
--------------------
specified herein for the determination thereof, (a) the average daily Market
Price of the Common Stock for those days during the period of 20 days, ending on
such date, which are Trading Days, and (b) if the Common Stock is not then
listed or admitted to trading on any national securities exchange or quoted in
the over-the-counter market, the Market Price on such date. For purposes of this
definition, the Class A and Class B shares will be treated as one class of
Common Stock having no distinctions between them.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, and the rules and regulations of the Securities and Exchange Commission
thereunder.
"Fair Market Value" shall mean the amount which a willing buyer,
-----------------
under no compulsion to buy, would pay a willing seller, under no
compulsion to sell, in an arm's-length transaction.
"Fund" means The 1818 Fund III, L.P., a Delaware limited
----
partnership.
"Internal Rate of Return" means, as of a particular date, an
-----------------------
internal rate of return calculated by determining the discount rate that equates
the present value of all cash flows of the Fund's investment in the Preferred
Stock to zero and which is derived by taking into account (i) the amount
invested in the Preferred Stock by the Fund as of the Issue Date net of any
facility fee received by the Fund, (ii) the amount of any proceeds received by
the Fund upon the sale or other disposition prior to such date of all or any
portion of the Preferred Stock or the Common Stock issuable upon conversion of
the Preferred Stock (as of the date received), (iii) the amount of any dividends
or the Fair Market Value of any other distributions on the shares of Preferred
19
Stock received by the Fund, and (iv) the IPO Price or the Market Price, as the
case may be, of the Common Stock issued or issuable to the Fund upon conversion
of the Preferred Stock held by the Fund.
"IPO Date" shall mean the date on which the Corporation (i) becomes a
--------
"reporting company," as defined under Section 12(g) of the Exchange Act, with
all of its filings with the Securities and Exchange Commission being current,
and (ii) has completed one or more underwritten offerings of Common Stock
registered under Securities Act of 1933, as amended, with at least $50 million,
in the aggregate, of gross proceeds to the Corporation.
"Issue Date" shall mean the original date of issuance of shares of
----------
Preferred Stock to the holders pursuant to the Securities Purchase Agreement.
"Junior Stock" shall mean any capital stock of the corporation ranking
------------
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Preferred Stock including, without limitation, the Common Stock.
"LA Unwired" means Louisiana Unwired, LLC, a Louisiana limited
----------
liability company.
"LEC Unwired" means LEC Unwired, LLC, a Louisiana limited liability
-----------
company.
"Material Subsidiary" shall mean LA Unwired, LEC Unwired, Unwired
-------------------
Telecom or Texas Unwired or any other Subsidiaries of the Corporation that are
"material subsidiaries" as that term is defined in Regulation S-X promulgated
under the Securities Act of 1933, as amended.
"Market Price" shall mean, per share of Common Stock on any date
------------
specified herein: (a) the closing price per share of the Common Stock on such
date published in The Wall Street Journal or, if no such closing price on such
-----------------------
date is published in The Wall Street Journal, the average of the closing bid and
-----------------------
asked prices on such date, as officially reported on the principal national
securities exchange on which the Common Stock is then listed or admitted to
trading; (b) if the Common Stock is not then listed or admitted to trading on
any national securities exchange but is designated as a national market system
security, the last trading price of the Common Stock on such date; or (c) if
there shall have been no trading on such date or if the Common Stock is not so
designated, the average of the reported closing bid and asked prices of the
Common Stock on such date as shown by NASDAQ and reported by any member firm of
the NYSE, selected by the Corporation. If neither (a), (b) or (c) is
applicable, Market Price shall mean the Fair Market Value per share determined
in good faith by the Board of Directors of the Corporation which shall be deemed
to be Fair Market
20
Value unless holders of at least 15% of the outstanding shares of Preferred
Stock request that the Corporation obtain an opinion of a nationally recognized
investment banking firm chosen by such holders (at the Corporation's expense),
in which event Fair Market Value shall be as determined by such investment
banking firm. For purposes of this definition, the Class A and Class B shares
will be treated as one class of Common Stock having no distinctions between
them.
"Meretel" means Meretel Communications Limited Partnership, a
-------
Louisiana partnership in commendam.
"NASDAQ" shall mean the National Market System of the NASDAQ Stock
------
Market.
"NYSE" shall mean the New York Stock Exchange, Inc.
----
"Parity Stock" shall mean any capital stock of the corporation,
------------
including the Preferred Stock, ranking on a par (either as to dividends or upon
liquidation, dissolu tion or winding up) with the Preferred Stock.
"Person" shall mean any individual, firm, corporation, partnership,
------
trust, incorporated or unincorporated association, joint venture, joint stock
company, government (or an agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger) of such entity.
"Principal Shareholder" means any one or more of William L. Henning,
---------------------
Sr., William L. Henning, Jr., John A. Henning and Thomas G. Henning, and their
respective heirs and any trust, corporation, partnership or limited liability
company, all of the beneficial interests in which shall be held by any of the
foregoing.
"Securities Purchase Agreement" shall mean the Securities Purchase
-----------------------------
Agreement, dated October 29, 1999, between the Corporation and The 1818 Fund
III, L.P., as the same may be amended from time to time.
"Senior Stock" shall mean any capital stock of the Corporation ranking
------------
senior (either as to dividends or upon liquidation, dissolution or winding up)
to the Preferred Stock.
"Stated Value" shall mean $100 per share of Preferred Stock.
------------
"Subsidiary" shall mean, with respect to any Person, a corporation or
----------
other entity of which 50% or more of the voting power of the voting equity
securities or equity interest in owned, directly or indirectly, by such Person.
21
"Texas Unwired" means Texas Unwired, a Louisiana general partnership.
-------------
"Trading Days" shall mean a day on which the national securities
------------
exchanges are open for trading.
"Unwired Telecom" means Unwired Telecom Corp., a Louisiana
---------------
corporation.
Section 12. Modification or Amendment.
-------------------------
Except as specifically set forth herein, modifications or amendments
to this Paragraph K may be made by the Corporation with the consent of the
holders of at least a majority of the outstanding shares of Preferred Stock."
3. Except as amended by these Articles of Amendment, the
Articles of Incorporation of the Corporation remain in full force and effect.
IN WITNESS WHEREOF, the undersigned President and Secretary have
executed these Articles of Amendment on October 25, 1999 at Lake Charles,
Louisiana.
US UNWIRED INC.
By: /s/ Robert W. Piper
------------------------------------
Name: Robert W. Piper
Title: President
By: /s/ Thomas G. Henning
------------------------------------
Name: Thomas G. Henning
Title: Secretary
22
ACKNOWLEDGMENT
--------------
STATE OF LOUISIANA
PARISH OF CALCASIEU
BEFORE ME, the undersigned authority, personally appeared Robert W. Piper
and Thomas G. Henning to me known to be the persons who signed the foregoing
instrument as President and Secretary, respectively, of US Unwired Inc., and
who, having been duly sworn, acknowledged and declared in the presence of the
witnesses whose names are subscribed below, that they signed that instrument as
their free act and deed for the purposes mentioned therein.
IN WITNESS WHEREOF, the appearers and witnesses and I have signed below on
this 25 day of October, 1999.
WITNESSES:
/s/ Neil Prejean
____________________________
/s/ Melanie Mobile /s/ Robert W. Piper
____________________________ -------------------------------
/s/ Tamalyn Hendry Robert W. Piper, President
____________________________
/s/ Sue Duhon /s/ Thomas G. Henning
____________________________ -------------------------------
Thomas G. Henning, Secretary
/s/ Sheila King
____________________________
Notary Public