EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
OPTEL, INC.
Under Section 242 of the Delaware General
Corporation Law
Pursuant to the provisions of Section 242 of the General
Corporation Law of the State of Delaware (the "GCL"), the undersigned, being
the Vice President and General Counsel and the Chief Financial Officer of
OpTel, Inc., do hereby certify that:
FIRST: The name of the corporation is OpTel, Inc. (hereinafter
referred to as the "Corporation").
SECOND: The Certificate of Incorporation of the Corporation was
filed with the Office of the Secretary of State of the State of Delaware on
July 1, 1994. A Restated Certificate of Incorporation of the Corporation
(the "Restated Certificate of Incorporation") was filed with the Secretary of
State of the State of Delaware on December 19, 1994.
THIRD: The Restated Certificate of Incorporation of the
Corporation is hereby amended by deleting Article FOUR, Sections A.4 through
and including Section A.8 in their entirety and replacing them with the
following:
"4. Any purported transfer of issued and outstanding shares of
class B Common Stock other than to a Permitted Transferee (as defined herein)
shall result in the automatic conversion of the shares of Class B Common
Stock being transferred into the like number of shares of Class A Common
Stock. No purported transfer of shares of Class B Common Stock shall be
effective unless and until the transferor has surrendered to the
Corporation, at its office or agency maintained for that purpose, the
certificates representing the shares of Class B Common Stock to be
transferred, which certificates shall be duly endorsed or accompanied by
executed stock powers, with the signatures appropriately guaranteed. All
such certificates shall be accompanied by written notice of the holder's
intention to transfer the shares, including a statement of the number of
shares of Class B Common Stock to be transferred and converted and the name
or name(s) and addresses in which the certificate or certificates for shares
of Class A Common Stock issuable upon such conversion shall be issued and, if
required,
funds for the payment of any applicable transfer taxes. The Corporation
will, as soon as practicable thereafter, deliver at said office to the
transferee of converted shares of Class B Common Stock, or to any nominee or
designee of such transferee, a certificate. or certificates for the number of
full shares of Class A Common Stock issuable upon such conversion and, in the
event that the transferor is transferring less than the aggregate number of
shares represented by the certificates surrendered, a certificate or
certificates for the number of full shares of Class B Common Stock not being
transferred. Shares of Class B Common Stock shall be deemed to have been
converted as of the date of the surrender of the shares for transfer and
conversion as hereinbefore provided, and the person or persons in whose name
Class A Common Stock is issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Class A Common Stock on
such date. Shares of Class B Common Stock so converted shall be returned to
the status of authorized and unissued shares of Class B Common Stock. The
Corporation shall at all times reserve for issuance a number of shares of
Class A Common Stock (which may include Class A Common Stock held by the
Corporation as treasury stock) which shall be sufficient for issuance upon
conversion of all of the then outstanding Class B Common Stock pursuant to
this Section 4 or otherwise. The Corporation, may as a condition to the
transfer or the registration of transfer of shares of Class B Common Stock to
a purported Permitted Transferee, require the furnishing of such affidavits
or other proof as it reasonably deems necessary to establish that such
transferee is a Permitted Transferee. For purposes hereof (1) "Permitted
Transferee" shall mean a Person who acquires shares of Class B Common Stock
otherwise than in a transaction (a) on a securities exchange or public
quotation system, whether or not registered as such under the Securities
Exchange Act of 1934, as amended (or any successor statute) (the "Exchange
Act"), (b) effected to or through a Person acting as a broker or dealer
(whether or not registered as such under the Exchange Act or any foreign
system of registration or regulation), (c) pursuant to a registration
statement under the Securities Act of 1933, as amended (or any successor
statute) (the "Securities Act"), (d) as a result of which the shares of Class
B Common Stock cease to be "restricted securities" within the meaning of Rule
144 under the Securities Act (or any successor or similar rule), or (e) that
is (or if it occurred in the United States, would be) required to be
registered under the Securities Act, (2) "Affiliate" shall mean, with respect
to any Person, another Person directly or indirectly controlling, controlled
by, or under direct or indirect common control with, such Person, provided,
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however, that no employee of the Corporation or any of its subsidiaries shall
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be deemed to be an Affiliate solely by reason of his or her capacity as an
employee, or by reason of any employment agreement, and (3) "Person" shall
mean and include an individual, a partnership, a limited liability company, a
joint venture, a corporation, a trust, an
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unincorporated organization and a government or any department or agency
thereof. All certificates evidencing shares of Class B Common Stock shall be
endorsed with a legend making appropriate reference to the foregoing
provisions regarding automatic conversion.
5. Each holder of Class B Common Stock issued and outstanding shall
be entitled, at such holder's option, to convert each share of Class B Common
Stock standing on the books of the Corporation in such holder's name into one
share of Class A Common Stock. If VPC and its Affiliates shall at any time
elect to convert all of the shares of Class B Common Stock then issued and
outstanding and held by them into shares of Class A Common Stock, whether by
transfer pursuant to Section 4 or by conversion pursuant to this Section 5,
all of the other shares of Class B Common Stock issued and outstanding as of
the date of such conversion shall be automatically converted into shares of
Class A Common Stock on a share for share basis and shall otherwise cease to
be outstanding, effective as of the date of such transfer and/or conversion
by VPC and its affiliates. All Persons registered as holders of shares of
Class B Common Stock on the date of such conversion shall be treated for all
purposes as the record holders of an equal number of shares of Class A Common
Stock on such date. The Corporation will, as soon as practicable thereafter,
deliver to each of the holders of the shares of Class B Common Stock
converted into shares of Class A Common Stock a certificate or certificates
for the Class A Common Stock against receipt from such holder of the
certificate theretofore representing an equal number of shares of Class B
Common Stock. Shares of Class B Common Stock so converted shall be
returned to the status of authorized and unissued shares of Class B Common
Stock. Pending delivery of certificates for shares of Class A Common Stock
after such conversion, certificates for shares of Class B Common Stock so
converted shall be deemed to be certificates for an equal number of shares of
Class A' Stock.
6. Upon any sale of Common Stock of the Corporation pursuant to a
registration statement under the Securities Act or any registration of Common
Stock of the Corporation pursuant to the Exchange Act, the shares of
Class C Common Stock will automatically be converted into an equal
number of shares of Class A Common Stock or such other class of common
equity securities of the Corporation that is registered with the Securities
and Exchange Commission or is listed on a national securities exchange or
otherwise subject to registration under the Exchange Act (the "Conversion
Shares"), provided the terms thereof are no less favorable to holders thereof
than were the shares of Class C Common Stock. The Corporation shall at all
times reserve for issuance sufficient shares of Class A Common Stock (which
may include Class A Common Stock held by the Corporation as treasury stock)
or such other common equity
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securities, for issuance upon conversion of the Class C Common Stock. The
Corporation will as soon as practicable thereafter, deliver to the holder of
the Class C Common Stock converted into the Conversion Shares a certificate
or certificates for the Conversion Shares against receipt from such holder of
the certificate theretofore representing an equal number of shares of Class
C Common Stock. Shares of Class C Common Stock so converted shall be returned
to the status of authorized and unissued shares of Class C Common Stock.
7. Dividends may be paid to the holders of the Class A Common
Stock, Class B Common Stock and Class C Common Stock, as and when declared by
the Board of Directors, out of any funds of the Corporation legally
available for the payment of such dividends. If and when dividends on the
Class A Common Stock, Class B Common Stock and Class C Common Stock are
declared from time to time by the Board of Directors, whether payable in
cash, in property or in shares of stock of the Corporation, the holders of
the Class A Common Stock, Class B Common Stock and Class C Common Stock shall
be entitled to share equally, on a per share basis, in such dividends. If
shares of Class B Common Stock are paid on Class B Common Stock and shares of
Class A Common Stock are paid on Class A Common Stock and shares of Class C
Common Stock are paid on Class C Common Stock, in an equal amount per share
of Class B Common Stock and Class A Common Stock and Class C Common Stock in
proportionate amounts, such payment will be deemed to be a like dividend or
other distribution.
8. Subject to the provisions of any series of Preferred Stock at
the time outstanding, upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the net assets of the
Corporation shall be distributed pro rata to the holders of the Class A
Common Stock, Class B Common Stock and Class C Common Stock, without regard
to class.
9. If the Corporation shall in any manner split, subdivide, combine
or reclassify any outstanding shares of a class of Common Stock, the
outstanding shares of the other classes of Common Stock shall be
proportionately split, subdivided, combined or reclassified in the same
manner and on the same basis as the outstanding shares of the class of Common
Stock that have been split, subdivided, combined or reclassified, unless a
different basis has been consented to by the holders of a majority of the
outstanding shares of the Class A Common Stock or Class B Common Stock, as
applicable, or two-thirds of the outstanding shares of Class C Common
Stock, to the extent any such class would be adversely affected by such
action.
Subject to the conversion rights of holders of Class C Common
Stock, in the event of any corporate merger, consolidation, purchase or
acquisition of property or stock or
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other reorganization in which any consideration is to be received by the
holders of Class B Common Stock or the holders of Class A Common Stock, the
holders of Class C Common Stock will receive the same consideration on a per
share basis, except that, if such consideration shall consist in any part of
voting securities (or of options or warrants to purchase voting securities,
or of securities convertible into or exchangeable for voting securities), (i)
the holders of Class B Common Stock may receive, on a per share basis, voting
securities with ten times the number of votes per share as those voting
securities to be received by the holders of Class A Common Stock (or options
or warrants to purchase, or securities convertible into or exchangeable for
voting securities with ten times the number of votes per share as those
voting securities issuable upon the exercise of the options or warrants, or
into which the convertible or exchangeable securities may be converted or
exchanged, received by the holders of Class A Common Stock) and (ii) the
holders of the Class C Common Stock may receive, on a per share basis, non-
voting securities (or options or warrants to purchase non-voting securities
or securities convertible into or exchangeable for non-voting securities)."
FOURTH: This Amendment to the Restated Certificate of
Incorporation or the Corporation was duly adopted by the unanimous written
consent of the Board of Directors of the Corporation in accordance with the
provisions of Section 141(f) of the GCL and the written consent of the
stockholders of the Corporation entitled to vote thereon in accordance with
the provisions of Section 228 of the GCL.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Amendment as of August 15, 1997 and affirmed under penalties of perjury
that this Certificate of Amendment is the act and deed of the Corporation and
that the facts set forth herein are true.
/s/ Michael E. Katzenstein
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Michael E. Katzenstein
Vice President and General Counsel
/s/ Bertrand Blanchette
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Bertrand Blanchette
Chief Financial Officer
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