Exhibit 3.9
CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MCLEODUSA INCORPORATED
McLeodUSA Incorporated, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. Pursuant to the General Corporation Law of the State of Delaware
("DGCL"), and in accordance with the Certificate of Incorporation and the Bylaws
of the Corporation, the Board of Directors of the Corporation, at a meeting duly
called and held on April 3, 2000, adopted resolutions proposing and declaring
advisable, and in the best interests of the Corporation, three amendments to the
Amended and Restated Certificate of Incorporation (the "Charter Amendments").
2. At the Annual Meeting of the Stockholders of the Corporation, duly
called and held on May 31, 2000, the Charter Amendments to the Amended and
Restated Certificate of Incorporation were approved by the holders of a majority
of the outstanding stock entitled to vote thereon.
3. The Board of Directors, at its April 3, 2000 meeting, and subject to
stockholder approval, authorized the filing of the Charter Amendments to the
Restated and Amended Certificate in the form of a Certificate of Amendment with
the Office of the Secretary of State of the State of Delaware and such other
jurisdictions, and offices as necessary or advisable.
4. The Charter Amendments to the Amended and Restated Certificate of
Incorporation were duly adopted and approved in accordance with the requirements
of Sections 141 and 242 of the DGCL.
5. Article "4" of the Amended and Restated Certificate of Incorporation is
hereby amended and restated as follows:
"ARTICLE 4. CAPITAL STOCK
4.1. Authorized Shares
The total number of shares of stock that the Corporation shall be
authorized to issue is 2,034,000,000 shares, divided into four classes as
follows: (i) 2,000,000,000 shares of Class A common stock having a par value of
$.01 per share ("Class A Common Stock"); (ii) 22,000,000 shares of Class B
common stock having a par value of $.01 per share ("Class B Common Stock");
(iii) 2,000,000 shares of serial preferred stock having a par value of $.01 per
share ("Preferred Stock"); and (iv) 10,000,000 shares of serial preferred stock
having a par value $.001 per share ("Class II Preferred Stock").
4.2. Class A Common Stock
4.2.1. Relative Rights
The Class A Common Stock shall be subject to all of the rights,
privileges, preferences and priorities of the Preferred Stock and Class II
Preferred Stock, as set forth herein and in the certificate or certificates of
designations filed to establish the respective series of Preferred Stock and
Class II Preferred Stock. Each share of Class A Common Stock shall have the same
relative rights as and be identical in all respects to all the other shares of
Class A Common Stock.
4.2.2. Dividends
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Class A Common Stock and the Class B Common Stock as to the payment of
dividends, the full amount of dividends and of sinking fund or retirement
payments, if any, to which such holders are respectively entitled in preference
to the Class A Common Stock and the Class B Common Stock, then dividends may be
paid equally on each share of the Class A Common Stock, the Class B Common Stock
and any class or series of stock entitled to participate therewith as to
dividends, out of any assets legally available for the payment of dividends
thereon, but only when and as declared by the Board of Directors of the
Corporation.
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4.2.3. Dissolution, Liquidation, Winding Up
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Class A Common
Stock, the holders of the Class B Common Stock and holders of any class or
series of stock entitled to participate therewith, in whole or in part, as to
the distribution of assets in such event, shall become entitled to participate
in the distribution of any assets of the Corporation remaining after the
Corporation shall have paid, or provided for payment of, all debts and
liabilities of the Corporation and after the Corporation shall have paid, or set
aside for payment, to the holders of any class of stock having preference over
the Class A Common Stock and the Class B Common Stock in the event of
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled.
4.2.4. Voting Rights
Each holder of shares of Class A Common Stock shall be entitled to
attend all special and annual meetings of the stockholders of the Corporation
and, together with the holders of shares of Class B Common Stock and the holders
of all other classes of stock entitled to attend and to vote at such meetings,
to vote upon any matter or thing (including, without limitation, the election of
one or more directors) properly considered and acted upon by the stockholders.
Each holder of shares of Class A Common Stock shall be entitled to cast one vote
for each outstanding share of Class A Common Stock so held.
4.3. Class B Common Stock
4.3.1. Relative Rights
The Class B Common Stock shall be subject to all of the rights,
privileges, preferences and priorities of the Preferred Stock and Class II
Preferred Stock, as set forth herein and in the certificate or certificates of
designations filed to establish the respective series of Preferred Stock and
Class II Preferred Stock. Each share of Class B Common Stock shall have the same
relative rights as and be identical in all respects to all the other shares of
Class B Common Stock.
4.3.2. Dividends
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Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Class B Common Stock and the Class A Common Stock as to the payment of
dividends, the full amount of dividends and of sinking fund or retirement
payments, if any, to which such holders are respectively entitled in preference
to the Class B Common Stock and the Class A Common Stock, then dividends may be
paid equally on each share of the Class B Common Stock, the Class A Common Stock
and any class or series of stock entitled to participate therewith as to
dividends, out of any assets legally available for the payment of dividends
thereon, but only when and as declared by the Board of Directors of the
Corporation.
4.3.3. Dissolution, Liquidation, Winding Up
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Class B Common
Stock, the holders of the Class A Common Stock and holders of any class or
series of stock entitled to participate therewith, in whole or in part, as to
the distribution of assets in such event, shall become entitled to participate
in the distribution of any assets of the Corporation remaining after the
Corporation shall have paid, or provided for payment of, all debts and
liabilities of the Corporation and after the Corporation shall have paid, or set
aside for payment, to the holders of any class of stock having preference over
the Class B Common Stock and the Class A Common Stock in the event of
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled.
4.3.4. Voting Rights
Each holder of shares of Class B Common Stock shall be entitled to
attend all special and annual meetings of the stockholders of the Corporation
and, together with the holders of shares of Class A Common Stock and the holders
of all other classes of stock entitled to attend and to vote at such meetings,
to vote upon any matter or thing (including, without limitation, the election of
one or more directors) properly considered and acted upon by the stockholders.
Each holder of shares of Class B Common Stock shall be entitled to cast .40 vote
for each outstanding share of Class B Common Stock so held.
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4.3.5. Conversion Rights
The shares of Class B Common Stock may be converted into fully paid
and nonassessable shares of Class A Common Stock at any time at the option of
the holder thereof at the rate of one share of Class A Common Stock for each
share of Class B Common Stock, subject to adjustment as provided below. If, at
any time shares of Class B Common Stock are outstanding, the Corporation shall
issue Class A Common Stock in a Class A Common Stock split without a
corresponding Class B Common Stock split, the conversion rate shall be adjusted
so that each share of Class B Common Stock shall be convertible into the number
of shares of Class A Common Stock representing the same proportion of the total
number of shares of Class A Common Stock outstanding after such stock split as
the number of shares of Class A Common Stock into which such share of Class B
Common Stock would have been convertible in the absence of such stock split
bears to the total number of shares of Class A Common Stock outstanding
immediately prior to such stock split.
Any holder of shares of Class B Common Stock desiring to convert all
or any part of such holder's shares of Class B Common Stock into shares of Class
A Common Stock shall give written notice thereof to the Corporation, specifying
the number of shares of Class B Common Stock such holder desires to convert and
the desired conversion date (the "Conversion Date"), which shall be on a
business day not less than five days after the date of such notice. On and after
the Conversion Date, such holder shall be entitled to receive, upon surrender of
a certificate or certificates representing the shares of Class B Common Stock so
converted, a certificate for the corresponding number of shares of Class A
Common Stock, determined in accordance with the provisions hereof. All shares of
Class B Common Stock to be converted on the Conversion Date shall, whether or
not the certificates for such shares shall have been surrendered for
cancellation, be deemed to be no longer outstanding for any purpose and all
rights with respect to such shares (except the right of the holder of the
certificates for such shares to receive certificates for shares of Class A
Common Stock) shall thereupon cease and terminate. Shares of Class B Common
Stock converted pursuant to this paragraph shall be canceled and retired and
shall not be reissued. Upon conversion, no fractional shares shall be issued and
any fractions of a share shall be rounded up to the next highest number.
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4.4. Preferred Stock
The Board of Directors is authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Amended and Restated Certificate of Incorporation, to provide, by resolution or
resolutions from time to time and filing a certificate pursuant to the
applicable provision of the Delaware General Corporation Law, for the issuance
of the shares of Preferred Stock in series, to establish from time to time the
number of shares to be included in each such series, to fix the powers,
designation, preferences, relative, participating, optional or other special
rights of the shares of each such series and the qualifications, limitations and
restrictions thereof.
4.5. Class II Preferred Stock
The Board of Directors is authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Amended and Restated Certificate of Incorporation, to provide, by resolution or
resolutions from time to time and filing a certificate pursuant to the
applicable provision of the Delaware General Corporation Law, for the issuance
of the shares of Class II Preferred Stock in series, to establish from time to
time the number of shares to be included in each such series, to fix the powers,
designation, preferences, relative, participating, optional or other special
rights of the shares of each such series and the qualifications, limitations and
restrictions thereof. All shares of Class II Preferred Stock to be issued, from
time to time, in one or more series shall rank on a parity with the Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (the
"Existing Preferred Stock") with respect to dividend rights and rights on
liquidation, winding-up and dissolution of the Corporation, except that (i) the
terms of any such series of the Class II Preferred Stock may expressly provide
that such series shall be junior to the Existing Preferred Stock with respect to
dividend rights or rights on liquidation, winding up and dissolution of the
Corporation and (ii) subject to the receipt of any required approval or consent
of one or more series of the Existing Preferred Stock, the terms of any such
series of the Class II Preferred Stock may expressly provide that such series
shall be senior to the Existing Preferred Stock with respect to dividend rights
or rights on liquidation, winding-up and dissolution of the Corporation.
Irrespective of the provisions of Section 242(b) of the Delaware General
Corporation Law, the number of authorized shares of Class II Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority in voting
power of the stock of the Corporation entitled to
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vote, without the separate vote of the holders of the Class II Preferred Stock
as a class.
4.6. Redemption
Notwithstanding any other provision of this Amended and Restated
Certificate of Incorporation to the contrary, outstanding shares of stock of the
Corporation shall always be subject to redemption by the Corporation, by action
of the Board of Directors, if in the judgment of the Board of Directors such
action should be taken, pursuant to Section 151(b) of the Delaware General
Corporation Law or any other applicable provision of law, to the extent
necessary to prevent the loss or secure the reinstatement of any license or
franchise from any governmental agency held by the Corporation or any of its
subsidiaries to conduct any portion of the business of the Corporation or any of
its subsidiaries, which license or franchise is conditioned upon some or all of
the holders of the Corporation's stock possessing prescribed qualifications. The
terms and conditions of such redemption shall be as follows:
(A) The redemption price of the shares to be redeemed pursuant to
this Section 4.6 shall be determined by the Board of Directors and shall be
equal to the Fair Market Value (as defined herein) of such shares or, if such
shares were purchased by a Disqualified Holder (as defined herein) within one
year of the Redemption Date (as defined herein), the lesser of (i) the Fair
Market Value of such shares and (ii) the purchase price paid by such
Disqualified Holder for such shares;
(B) At the election of the Corporation, the redemption price of such
shares may be paid in cash, Redemption Securities (as defined herein) or any
combination thereof;
(C) If fewer than all shares held by Disqualified Holders are to be
redeemed, the shares to be redeemed shall be selected in such manner as shall be
determined by the Board of Directors, which may include selection first of the
most recently purchased shares thereof, selection by lot or selection in any
other manner determined by the Board of Directors;
(D) At least 30 days' prior written notice of the Redemption Date
shall be given to any Disqualified Holder of shares selected to be redeemed
(unless waived in writing by any such holder), provided that the Redemption Date
may be the date on which written notice shall be given to such holder if the
cash or Redemption Securities necessary to effect the redemption shall have been
deposited
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in trust for the benefit of such holder and subject to immediate withdrawal by
it upon surrender of the stock certificates for the shares to be redeemed;
(E) From and after the Redemption Date, any and all rights of
whatever nature that any Disqualified Holder may have with respect to any shares
selected for redemption (including without limitation any rights to vote or
participate in dividends declared on stock of the same class or series as such
shares) shall cease and terminate, and such Disqualified Holder shall
thenceforth be entitled only to receive, with respect to such shares, the cash
or Redemption Securities payable upon redemption; and
(F) Such additional terms and conditions as the Board of Directors
shall determine.
For purposes of this Section 4.6:
(i) "Disqualified Holder" shall mean any holder of shares of stock of
the Corporation whose holding of such stock, either individually or when taken
together with the holding of shares of stock of the Corporation by any other
holders, may result, in the judgment of the Board of Directors, in the loss of,
or the failure to secure the reinstatement of, any license or franchise from any
governmental agency held by the Corporation or any of its subsidiaries to
conduct any portion of the business of the Corporation or any of its
subsidiaries.
(ii) "Fair Market Value" of a share of the Corporation's stock of any
class or series shall mean the average Closing Price (as defined herein) for
such a share for each of the 45 most recent days on which shares of stock of
such class or series shall have been traded preceding the day on which notice of
redemption shall be given pursuant to paragraph (D) of this Section 4.6;
provided, however, that if shares of stock of such class or series are not
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traded on any securities exchange or in the over-the-counter market, "Fair
Market Value" shall be determined by the Board of Directors in good faith.
"Closing Price" on any day means the reported closing sales price or, in case no
such sale takes place, the average of the reported closing bid and asked prices
on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such stock
is not listed on any such exchange, the highest closing sales price or bid
quotation for such stock on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such prices or
quotations are available, the fair market value on the day in question as
determined by the Board of Directors in good faith.
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(iii) "Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the Corporation pursuant
to this Section 4.6.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any of its subsidiaries or any other
corporations, or any combination thereof, having such terms and conditions as
shall be approved by the Board of Directors and which, together with any cash to
be paid as part of the redemption price, in the opinion of any investment
banking firm selected by the Board of Directors (which may be a firm which
provides other investment banking, brokerage or other services to the
Corporation), has a value, at the time notice of redemption is given pursuant to
paragraph (D) of this Section 4.6, at least equal to the price required to be
paid pursuant to paragraph (A) of this Section 4.6 (assuming for purposes of
such valuation, in the case of Redemption Securities to be publicly traded, such
Redemption Securities were fully distributed and trading under normal
conditions)."
6. The following Article "10" is added to the Amended and Restated
Certificate of Incorporation:
"ARTICLE 10. UNANIMOUS WRITTEN CONSENT TO STOCKHOLDER ACTION WITHOUT A
MEETING
Notwithstanding the provisions of Section 228 of the Delaware General
Corporation Law, except to the extent otherwise provided pursuant to the terms
of any series of Preferred Stock or Class II Preferred Stock with respect to
such series, no corporate action of stockholders without a meeting of
stockholders shall be taken by less than unanimous written consent of the
stockholders of the Corporation."
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IN WITNESS WHEREOF, McLeodUSA Incorporated has caused this Amended and
Restated Certificate of Incorporation to be signed and attested by its duly
authorized officer, as of the 31st day of May, 2000.
McLeodUSA Incorporated
By:___________________________
Name:________________________
Title: _________________________
ATTEST:
_____________________________
Name:_________________________
Title: ______________________
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