EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
McLEOD, INC.
McLEOD, INC., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), hereby certifies as follows:
FIRST: The name of the Corporation is McLeod, Inc. The original
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on July 29, 1993. An amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation") was filed with
the Secretary of State of the State of Delaware on May 2, 1996.
SECOND: Pursuant to Sections 141 and 242 of the Delaware General
Corporation Law, as amended (the "DGCL") and in accordance with the By-laws of
the Corporation, the Board of Directors of the Corporation, at a meeting duly
called and held on March 27, 1997, adopted resolutions proposing and declaring
advisable and in the best interests of the Corporation the following two
amendments to the Certificate of Incorporation:
1. ARTICLE "1" of the Certificate of Incorporation is hereby amended
and restated as follows:
"ARTICLE 1. NAME
The name of this corporation is "McLeodUSA Incorporated."
2. ARTICLE "4" of the 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 274,000,000 shares, divided into three classes as
follows: (i) 250,000,000 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"); and (iii) 2,000,000 shares of serial
preferred stock, having a par value of $.01 per share ("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, as set forth
herein and in the certificate or certificates of designations filed to
establish the respective series of 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.
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.
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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, as set forth
herein and in the certificate or certificates of designations filed to
establish the respective series of 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
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
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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.
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
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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.
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. 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
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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 4.5 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 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.
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For purposes of this Section 4.5:
(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 4.5; provided, however, that if shares of stock of such class or
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series are not 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.
(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 4.5.
(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)
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of this Section 4.5, at least equal to the price required to be paid
pursuant to paragraph (A) of this Section 4.5 (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)."
THIRD: The foregoing amendments to the Certificate of Incorporation were
approved at the Corporation's annual meeting of stockholders held on May 29,
1997, by the holders of at least a majority of the outstanding shares of common
stock of the Corporation.
FOURTH: The foregoing amendments to the Certificate of Incorporation were
duly adopted and approved in accordance with the requirements of Sections 141
and 242 of the DGCL.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Incorporation to be executed by its duly authorized officer, as of the 29th day
of May, 1997.
McLEOD, INC.
By: /s/ Clark E. McLeod
------------------------------
Clark E. McLeod
Chairman and Chief Executive
Officer
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