Execution Copy
KMC TELECOM HOLDINGS, INC.
CERTIFICATE OF THE POWERS,
DESIGNATIONS, PREFERENCES AND RIGHTS OF THE
SERIES C CUMULATIVE CONVERTIBLE PREFERRED STOCK,
PAR VALUE $.0l PER SHARE
Pursuant to Sections 141 and 151 of the
General Corporation Law of the State of Delaware
As contemplated by Section 141 of the General Corporation Law of the
State of Delaware (the "DGCL"), the following resolution was duly adopted by the
Board of Directors of KMC Telecom Holdings, Inc., a Delaware corporation (the
"Corporation"), by unanimous written consent, dated October 31, 1997:
WHEREAS, the Board of Directors of the Corporation is authorized,
within the limitations and restrictions stated in the Amended and Restated
Certificate of Incorporation of the Corporation, to provide by resolution or
resolutions for the issuance of shares of preferred stock, par value $.0l per
share, of the Corporation, in one or more series with such voting powers, full
or limited, or without voting powers, and such designations, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions as shall be stated and expressed in the resolution
or resolutions providing for the issuance thereof adopted by the Board of
Directors, and as are not stated and expressed in the Certificate of
Incorporation, or any amendment thereto, including (but without limiting the
generality of the foregoing) such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets and
such other subjects or matters as may be fixed by resolution or resolutions of
the Board of Directors under the DGCL;
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WHEREAS, the Board of Directors of the Corporation, pursuant to its
authority under Section 151 of the DGCL, desires to authorize and fix the terms
of its Series C Cumulative Convertible Preferred Stock; and
WHEREAS, the Board of Directors of the Corporation has determined that
such Series C Cumulative Convertible Preferred Stock shall constitute "Parity
Preferred Stock" within the meaning of the Certificates of the Powers,
Designations, Preferences and Rights of the Corporation's Series A Cumulative
Convertible Preferred Stock, Series B Cumulative Convertible Preferred Stock and
Series D Cumulative Convertible Preferred Stock;
NOW, THEREFORE, BE IT RESOLVED:
1. DESIGNATION AND NUMBER OF SHARES. There shall be hereby established
a series of preferred stock designated as "Series C Cumulative Convertible
Preferred Stock" (such Series being hereinafter referred to as the "Series C
Preferred Stock"). The authorized number of shares of Series C Preferred Stock
shall be 350,000. The liquidation preference of the Series C Preferred Stock
shall be $100 per share (the "Liquidation Preference").
2. RANK. The Series C Preferred Stock shall, with respect to dividend
distributions and distributions of assets and rights upon the liquidation,
winding-up and dissolution of the Corporation, rank senior to the Common Stock,
par value $.0l per share, of the Corporation (the "Common Stock") and to each
other class or series of Capital Stock of the Corporation (other than the Parity
Preferred Stock) hereafter created (the Common Stock and such other class or
series of Capital Stock of the Corporation other than Parity Preferred Stock are
hereinafter collectively referred to as the "Junior Stock").
3. DIVIDENDS.
(a) Beginning on the date of issuance of the Series C Preferred Stock,
the holders of the outstanding shares of Series C Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Corporation, out of funds legally available therefor, cash dividends on each
share of Series C Preferred Stock at an annual rate equal to 7.0% of the
Liquidation Preference, payable quarterly in arrears on the applicable Dividend
Payment Date or the next succeeding Business Day, if the applicable Dividend
Payment Date is not a Business Day. Notwithstanding the foregoing, the dividend
payable on each share of Series C Preferred Stock with respect to the Initial
Dividend Period shall be equal to (i) 7.0% of the Liquidation Preference
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multiplied by (ii) a fraction equal to (A) the number of days from (and
including) the Series C Preferred Stock Issue Date to (but excluding) the
Dividend Payment Date with respect to the Initial Dividend Period divided by (B)
365. All dividends shall be cumulative, whether or not earned or declared, from
the date of issuance of the Series C Preferred Stock and shall be payable
quarterly in arrears on each Dividend Payment Date, commencing on the first
Dividend Payment Date after the date of issuance of the Series C Preferred
Stock. If any dividend (or portion thereof) payable on any Dividend Payment Date
is not declared or paid in full on such Dividend Payment Date, the amount of
such dividend payable that is not paid on such date shall increase at the rate
of 7.0% per annum (compounded quarterly on each subsequent Dividend Payment
Date) from such Dividend Payment Date until paid in full. Each distribution on
the Series C Preferred Stock shall be payable to holders of record as they
appear on the stock books of the Corporation on such record dates, not less than
ten (10) nor more than sixty (60) days preceding the related Dividend Payment
Date, as shall be fixed by the Board of Directors of the Corporation.
(b) All accumulated and unpaid dividends on the Series C Preferred
Stock shall be paid by the Corporation upon the occurrence of a Realization
Event, without reference to any regular Dividend Payment Date, to holders of
record on such date. The Corporation shall send by first class, postage prepaid
mail a notice of the Realization Event to all holders of Series C Preferred
Stock that are entitled to receive such dividends. In the case of a Realization
Event which is an initial public offering, if any such holder gives written
notice to the Corporation that such holder wishes to receive such accumulated
unpaid dividends in the form of shares of Common Stock in lieu of cash, the
Corporation, in lieu of a cash payment, shall issue to such holder on such
Dividend Payment Date, a number of shares of Common Stock equal to the quotient
obtained by dividing (x) the aggregate accumulated and unpaid dividends on the
shares of Series C Preferred Stock held by such holder by (y) the price at which
shares of Common Stock are sold in such offering (before deduction of
underwriting discounts and expenses of sale).
(c) All dividends paid with respect to shares of Series C Preferred
Stock pursuant to Section 3(a) shall be paid pro rata and in like manner to all
of the holders entitled thereto.
(d) Except as otherwise provided in paragraph (b) above, nothing
herein contained shall in any way or under any circumstances be construed or
deemed to require the Board of Directors of the Corporation to declare, or the
Corporation to pay or set apart for payment, any dividends on shares of the
Series C Preferred Stock at any time.
(e) Whenever the provisions hereof require that the amount of
dividends with respect to the Series C Preferred Stock be determined for less
than a full quarterly period ending on a Dividend Payment Date, the amount of
dividends for such period shall be equal to 7.0% of the Liquidation Preference
multiplied by a fraction equal to (i) the number of days from (and including)
the most recent Dividend Payment Date to (but excluding) the last day of the
period in respect of which such determination is being made divided by (ii) 365.
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4. LIQUIDATION PREFERENCE.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the affairs of the Corporation, the holders of
shares of Parity Preferred Stock (including the Series C Preferred Stock) then
outstanding shall be entitled to be paid for each share held thereby, out of the
assets of the Corporation available for distribution to its stockholders, an
amount in cash equal to the Liquidation Preference plus an amount in cash equal
to all accumulated and unpaid dividends thereon (calculated pursuant to
Paragraph 3(a)) to the date fixed for liquidation, dissolution or winding-up
(including an amount equal to a prorated dividend for the period from the last
Dividend Payment Date to the date fixed for liquidation, dissolution or
winding-up), before any payment shall be made or any assets distributed to the
holders of any shares of Junior Stock. Except as provided in the preceding
sentence, holders of the Parity Preferred Stock (including the Series C
Preferred Stock) shall not be entitled to any distribution in the event of any
liquidation, dissolution or winding-up of the affairs of the Corporation. If the
assets of the Corporation are not sufficient to pay in full the foregoing
liquidation payments payable to the holders of outstanding shares of the Parity
Preferred Stock (including the Series C Preferred Stock), then the holders of
all shares of Parity Preferred Stock (including the Series C Preferred Stock)
shall share ratably in such distribution of assets in accordance with the amount
that would be payable on such distribution if the amounts to which the holders
of outstanding shares of Parity Preferred Stock (including the Series C
Preferred Stock) are entitled were paid in full. If all of the foregoing
liquidation payments with respect to any share of Series C Preferred Stock have
been made, such share may not be converted into Common Stock pursuant to Section
5.
(b) For the purposes of this Section 4, neither the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stocks, securities or
other consideration) of all or substantially all or part of the property or
assets of the Corporation nor the consolidation or merger of the Corporation
with one or more other corporations shall be deemed to be a liquidation,
dissolution or winding-up, voluntary or involuntary, of the affairs of the
Corporation (unless such sale, conveyance, exchange or transfer is in connection
with a liquidation, dissolution or winding-up of the affairs of the
Corporation).
5. CONVERSION.
(a) CONVERSION PRICE. Shares of Series C Preferred-Stock to be
converted into shares of Common Stock shall be so converted at a conversion
price (which price shall be adjusted to the nearest fourth decimal place as
hereinafter provided and, as so adjusted, is hereinafter referred to as the
"Conversion Price") equal to: (i) from the date of initial issuance of shares of
Series C Preferred Stock to but excluding the 30-month anniversary of such
issuance, $52.50 per share of Common Stock, with each share of Series C
Preferred Stock being valued at $100.00 for such purpose; PROVIDED, HOWEVER,
that if a Realization Event shall occur during such 30-month period the
Conversion Price shall equal to a fraction, the numerator of which is (A) the
consideration per share of Common Stock (on a Fully Diluted basis) received in
connection with such Realization Event, and the denominator of which is (B) 1.30
raised to a number equal to the number of years (or fraction thereof) from the
date of initial issuance of shares of Series C Preferred Stock until the date of
such Realization Event, but in no case shall be greater than $52.50 per share of
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Common Stock nor less than $42.18 per share of Common Stock; and (ii) from and
after the thirty-month anniversary of the date of initial issuance of shares of
Series C Preferred Stock (subject to paragraph (b) below), $42.18 per share of
Common Stock, with each share of Series C Preferred Stock being valued at
$100.00 for such purpose; provided, however, that in no event shall the
Conversion Price be less than the par value, if any, of the Common Stock.
(b) AUTOMATIC CONVERSION UPON A QUALIFIED PUBLIC OFFERING. Upon a
Qualified Public Offering, each share of Series C Preferred Stock shall
automatically convert, without any action on the part of the holder thereof,
into shares of Common Stock at the Conversion Price in effect at such time, plus
the right to receive an amount of cash equal to the accumulated unpaid dividends
on such share of Series C Preferred Stock to and including such date (or the
right to receive additional shares of Common Stock in lieu of cash dividends
pursuant to Section 3(b)).
(c) CONVERSION AT THE OPTION OF THE HOLDER. At any time and from time
to time prior to a Qualified Public Offering, each holder of Series C Preferred
Stock shall have the right to convert such holder's shares of Series C Preferred
Stock, in whole or in part, into shares of Common Stock at the Conversion Price
in effect at such time, plus the right to receive an amount of cash equal to the
accumulated unpaid dividends on the shares of Series C Preferred Stock so
converted to and including the Conversion Date (as defined below); provided
that, if such Conversion Date is prior to a Realization Event, the Corporation
may, in lieu of making a payment in cash equal to such amount, deliver a number
of shares of Common Stock equal to such amount divided by the Fair Market Value
of one share of Common Stock. In order to convert shares of Series C Preferred
Stock pursuant to this Section 5(c) the holder thereof shall surrender at the
office of the Corporation the certificate or certificates therefor, duty
endorsed to the Corporation in blank, and give written notice to the Corporation
that such holder elects to convert such shares and shall state in writing
therein the name or names (with addresses) in which such holder wishes the
certificate or certificates of Common Stock to be issued. Shares of Series C
Preferred Stock shall be deemed to have been converted on the date of surrender
of such certificate or certificates as provided above (the "Conversion Date"),
and the person or persons entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such Common Stock on such date. As soon as practicable on
or after the Conversion Date, the Corporation shall issue and deliver a
certificate or certificates for the number of shares of Common Stock issuable
upon conversion.
(d) FRACTIONAL SHARES; PARTIAL CONVERSION. No fractional shares shall
be issued upon conversion of shares of Series C Preferred stock into Common
Stock. In case the number of shares of Series C Preferred Stock represented by
the certificate or certificates surrendered pursuant to this Section 5 exceeds
the number of shares converted, the Corporation shall, upon such conversion,
execute and deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for the number of shares of Series C Preferred Stock
represented by the certificate or certificates surrendered which are not to be
converted. If any fractional share of Common Stock would, except for the
provisions of the first sentence of this Section 5(d), be delivered upon such
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conversion, the Corporation, in lieu of delivering such fractional share, shall
pay to the holder surrendering the Series C Preferred Stock for conversion an
amount in cash equal to the current market price of such fractional share as
determined in good faith by the Board of Directors.
(e) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF COMMON STOCK.
Except as provided in Section 5(f), if and whenever the Corporation shall
hereafter issue or sell, or is, in accordance with subsection 5(e)(1) through
5(e)(6), deemed to have issued or sold, any shares of Common Stock for a
consideration per share less than the Conversion Price in effect immediately
prior to the time of such issue or sale, then, forthwith upon such issue or
sale, the Conversion Price shall be reduced to the price determined by dividing
(i) an amount equal to the sum of (a) the number of shares of Common Stock
outstanding immediately prior to such issue or sale (determined on a Fully
Diluted basis) multiplied by the then existing Conversion Price and (b) the
consideration, if any, received by the Corporation upon such issue or sale, by
(ii) the total number of shares of Common Stock outstanding immediately after
such issue or sale (determined on a Fully Diluted basis).
For purposes of this Section 5(e), the following subsections 5(e)(1)
to 5(e)(6) shall also be applicable:
5(e)(1) ISSUANCE OF RIGHTS OR OPTIONS. In case at any time hereafter
the Corporation shall in any manner grant (whether directly or by assumption in
a merger or otherwise) any Options to purchase Common Stock or any Convertible
Securities, whether or not such Options or the right to convert or exchange any
such Convertible Securities are immediately exercisable, and the price per share
for which Common Stock is issuable upon the exercise of such Options or upon the
conversion or exchange of such Convertible Securities (determined by dividing
(i) the total amount, if any, received or receivable by the Corporation as
consideration for the granting of such Options, plus the minimum aggregate
amount of additional consideration payable to the Corporation upon the exercise
of all such Options, plus, in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the Conversion
Price in effect immediately prior to the time of the granting of such Options,
then the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon conversion or exchange of the total maximum
amount of such Convertible Securities issuable upon the exercise of such Options
shall be deemed to have been issued for such price per share as of the date of
granting of such Options or the issuance of such Convertible Securities and
thereafter shall be deemed to be outstanding. Except as otherwise provided in
subsection 5(e)(3), no adjustment of the Conversion Price shall be made upon the
actual issue of such Common Stock or of such Convertible Securities upon
exercise of such Options or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities.
5(e)(2) ISSUANCE OF CONVERTIBLE SECURITIES. In case the Corporation
shall hereafter in any manner issue (whether directly or by assumption in a
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merger or otherwise) or sell any Convertible Securities, whether or not the
rights to exchange or convert any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is issuable upon
such conversion or exchange (determined by dividing (i) the total amount
received or receivable by the Corporation as consideration for the issue or sale
of such Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the conversion or
exchange thereof, by (ii) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the Conversion Price in effect immediately prior to the time
of such issue or sale, then the total maximum number of shares of Common Stock
issuable upon conversion or exchange of all such Convertible Securities shall be
deemed to have been issued for such price per share as of the date of the issue
or sale of such Convertible Securities and thereafter shall be deemed to be
outstanding, provided that (a) except as otherwise provided in subparagraph
5(e)(3), no adjustment of the Conversion Price shall be made upon the actual
issue of such Common Stock upon conversion or exchange of such Convertible
Securities and (b) if any such issue or sale of such Convertible Securities is
made upon exercise of any Options to purchase any such Convertible Securities
for which adjustments of the Conversion Price have been or are to be made
pursuant to other provisions of this Section 5(e), no further adjustment of the
Conversion Price shall be made by reason of such issue or sale.
5(e)(3) CHANGE IN OPTION PRICE-OR CONVERSION RATE. Upon the happening
of any of the following events, namely, if the purchase price provided for in
any Option referred to in subsection 5(e)(1), the additional consideration, if
any, payable upon the conversion or exchange of any Convertible Securities
referred to in subsection 5(e)(1) or 5(e)(2) or the rate at which Convertible
Securities referred to in subsection 5(e)(1) or 5(e)(2) are convertible into or
exchangeable for Common Stock shall change at any time (including, but not
limited to, changes under or by reason of provisions designed to protect against
dilution), the Conversion Price in effect at the time of such event shall
forthwith be readjusted to the Conversion Price which would have been in effect
at such time had such Options or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration or conversion
rate, as the case may be, at the time initially granted, issued or sold, but
only if as a result of such adjustment the Conversion Price then in effect
hereunder is thereby reduced; and on the termination of any such Option or any
such right to convert or exchange such Convertible Securities, the Conversion
Price then in effect hereunder shall forthwith be increased to the Conversion
Price which would have been in effect at the time of such termination had such
Option or Convertible Securities, to the extent outstanding immediately prior to
such termination, never been issued.
5(e)(4) CONSIDERATION FOR STOCK. In case any shares of Common Stock,
Options or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Corporation therefor, without deduction therefrom of any expenses incurred or
any underwriting commissions or concessions paid or allowed by the Corporation
in connection therewith. In case any shares of Common Stock, Options or
Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the
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Corporation shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors, without deduction of any
expenses incurred or any underwriting commissions or concessions paid or allowed
by the Corporation in connection therewith. In case any Options shall be issued
in connection with the issue and sale of other securities of the Corporation,
together comprising one integral transaction in which no specific consideration
is allocated to such Options by the parties thereto, such Options shall be
deemed to have been issued for such consideration as determined in good faith by
the Board of Directors of the Corporation.
5(e)(5) RECORD DATE. In case the Corporation shall take a record of
the holders of its Common Stock for the purpose of entitling them (i) to receive
a dividend or other distribution payable in Common Stock, Options or Convertible
Securities or (ii) to subscribe for or purchase Common Stock, options or
Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
5(e)(6) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Corporation, and the disposition of any such shares shall be
considered an issue or sale of Common Stock for the purpose of this Section
5(e).
(f) EXCEPTIONS TO CONVERSION PRICE ADJUSTMENT. Notwithstanding the
foregoing, no adjustment to the Conversion Price shall be made pursuant to this
Section 5 in connection with the grant, issuance or sale of Common Stock,
Convertible Securities, warrants, options or other rights to subscribe for or
purchase Common Stock or Convertible Securities: (i) pursuant to employee stock
purchase or stock option ownership plans adopted by the Corporation for
employees, consultants and/or directors of the Corporation and its affiliates;
(ii) pursuant to the terms of any Convertible Securities, warrants, options or
other rights to subscribe for or purchase granted, issued or sold pursuant to
clause (ii) above; (iii) pursuant to the High Yield Debt and Equity Offering (as
defined in a Subordinated Loan and Security Agreement, dated as of September 22,
1997, among KMC Telecom Inc. ("KMC") and KMC Telecom II, Inc. and AT&T
Commercial Finance Corporation, as in effect on the Series C Preferred Stock
Issue Date) or a subsequent debt offering occurring prior to December 31, 1998;
(iv) pursuant to the terms of any Convertible Securities, warrants, options or
other rights to subscribe for or purchase granted, issued or sold pursuant to
clause (iii) above; or (v) pursuant to Section 10C of the Amended and Restated
Note Purchase and Investment Agreement, dated as of October 22, 1996, as
amended, by and among the Corporation, Nassau Capital Partners L.P., NAS
Partners I L.L.C. and Harold N. Kamine; PROVIDED that the aggregate number of
shares of Common Stock issued or issuable pursuant to clauses (i) and (ii) above
shall not exceed 15% of the Common Stock (on a Fully Diluted basis) outstanding
from time to time and the aggregate number of shares of Common Stock issued or
issuable pursuant to clauses (iii) and (iv) above shall not exceed 11% of the
Common Stock (on a Fully Diluted basis) outstanding from time to time; and
FURTHER PROVIDED that for the purposes of this Section 5(f): (a) 221,500 shares
of Common Stock initially allocated under the 1997 Stock Option Plan will be
deemed outstanding regardless of the number of shares actually granted and
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exercisable thereunder and (b) shares of Common Stock issued or issuable upon
exercise of options not among the 221,500 shares initially allocated pursuant to
the 1997 Stock Option Plan and which, when issued, were subject to clauses (i)
or (ii) above, will not be deemed outstanding, regardless of whether or not they
have been granted or are exercisable.
(g) SUBDIVISION OR COMBINATION OF COMMON STOCK. In case the
Corporation shall at any time subdivide (by any stock split, stock dividend or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such subdivision
shall be proportionately reduced, and, conversely, in case the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(h) REORGANIZATION OR RECLASSIFICATION. If any capital reorganization
or reclassification of the capital stock of the Corporation shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then, as a
condition of such reorganization or reclassification (but subject to Section 7),
lawful and adequate provisions shall be made whereby each holder of a share or
shares of Series C Preferred Stock shall thereupon have the right to receive,
upon the basis and upon the terms and conditions specified herein and in lieu of
the shares of Common Stock immediately theretofore receivable upon the
conversion of such share or shares of Series C Preferred Stock, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such Common Stock immediately theretofore receivable upon
such conversion had such reorganization or reclassification not taken place, and
in any such case appropriate provisions shall be made with respect to the rights
and interests of such holder to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the Conversion Price) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise of such
conversion rights.
(i) CARRYOVER. Notwithstanding any other provisions of this Section 5,
the Corporation shall not be required to make any adjustment to the Conversion
Price unless such adjustment would require an increase or decrease of at least
one percent (1%) in the Conversion Price. Any lesser adjustment shall be carried
forward and shall be made no later than 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 of at least one percent
(1%) in the Conversion Price.
(j) OTHER EVENTS. If the Corporation shall make any dividend
(excluding cash dividends payable out of accumulated earnings and profits) or
distribution on the Common Stock or issue any Common Stock, other capital stock
or other security of the Corporation or any rights or warrants to purchase or
acquire any such security, which transaction does not result in an adjustment to
the Conversion Price pursuant to the foregoing provisions of this Section 5, the
Board of Directors may consider whether such action is of such a nature that an
adjustment to the Conversion Price should equitably be made in respect of such
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transaction. If the Board of Directors of the Corporation determines that an
adjustment to the Conversion Price should be made, an adjustment shall be made
effective as of such date, as determined by the Board of Directors of the
Corporation. The determination of the Board of Directors of the Corporation as
to whether such an adjustment to the Conversion Price should be made, and, if
so, as to what adjustment should be made and when, shall be final and binding on
the Corporation and all stockholders of the Corporation. The Corporation shall
be entitled to make such additional adjustments in the Conversion Price, in
addition to those required by the foregoing provisions of this Section 5, as
shall be necessary in order that any dividend or distribution in shares of
capital stock of the Corporation, subdivision, reclassification or combination
of shares of stock of the Corporation or any recapitalization of the Corporation
shall not be taxable to the holders of the Common Stock.
(k) NOTICE OF ADJUSTMENT. Upon any adjustment of the Conversion Price,
then and in each such case the Corporation shall give written notice thereof, by
delivery in person, certified or registered mail, return receipt requested, or
facsimile addressed to each holder of shares of Series C Preferred Stock
affected by such adjustment at the address of such holder as shown on the books
of the Corporation, which notice shall state the Conversion Price resulting from
such adjustment, setting forth in reasonable detail the method upon which such
calculation is based.
6. VOTING RIGHTS.
(a) The holders of Series C Preferred Stock, except as otherwise
required under Delaware law or as set forth below in this Section 6, shall not
be entitled or permitted to vote on any matter required or permitted to be voted
upon by the stockholders of the Corporation.
(b) So long as the Series C Preferred Stock is outstanding, each share
of Series C Preferred Stock shall entitle the holder thereof to vote, in person
or by proxy, at a special or annual meeting of stockholders or by written
consent, on all matters voted on by holders of Common Stock voting together as a
single class with other shares entitled to vote thereon except as otherwise
provided in Articles EIGHTH and NINTH of the Corporation's Amended and Restated
Certificate of Incorporation. With respect to any such vote, each share of
Series C Preferred Stock shall entitle the holder thereof to cast a number of
votes equal to the number of votes entitled to be cast by such holder had such
holder converted such share of Series C Preferred Stock into Common Stock prior
to such vote (or, if earlier, the record date with respect to such vote).
(c) Subject to Section 7, without the prior consent of the holders of
two-thirds of the shares of the Series C Preferred Stock then outstanding,
voting as a separate class, the Corporation shall not:
(i) increase the number of shares of Series C Preferred Stock
outstanding at any time to more than $35,000,000 of aggregate Liquidation
Preference;
(ii) increase the number of shares of Preferred Stock (of
whatever series) authorized for issuance;
(iii) merge or consolidate with or into any other company, person
or entity, unless holders of each share of Series C Preferred Stock receive
consideration in an amount equal to at least the greater of (A) the product of
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(x) the number of shares of Common Stock into which such share of Series C
Preferred Stock is then convertible and (y) the consideration to be received by
holders of each share of Common Stock pursuant to such merger or consolidation
and (B) the Liquidation Preference of such share of Series C Preferred Stock
plus all accumulated but unpaid dividends thereon (whether or not declared);
(iv) amend, modify or repeal the powers, preferences or rights of
or the restrictions provided for the benefit of holders of the Series C
Preferred Stock or the Common Stock if such action would affect the Series C
Preferred Stock or the Common Stock adversely;
(v) sell or otherwise dispose of all or substantially all of the
assets of the Corporation in any single transaction or series of related
transactions unless the holders of each share of Series C Preferred Stock
receive consideration in an amount equal to at least the Liquidation Preference
of such share of Series C Preferred Stock plus all accumulated but unpaid
dividends thereon (whether or not declared);
(vi) declare or pay any dividend on shares of Common Stock or
other equity securities of the Corporation ranking junior to the Parity
Preferred Stock (excluding dividends payable solely in shares of Common Stock or
other equity securities of the Corporation ranking junior to the Parity
Preferred Stock);
(vii) authorize or enter into any transaction or series of
transactions (excluding transactions authorized by the Corporation or its
subsidiaries prior to the Series C Preferred Stock Issue Date and any amendments
thereto that do not alter the economic value of such transactions) with any
director or executive officer of the Corporation or any Person directly or
indirectly controlling the Corporation (or any affiliate thereof other than a
subsidiary of the Corporation) if the aggregate amount involved in such
transaction or series of transactions involves the payment by or to the
Corporation or its subsidiaries of more than $100,000 in any one fiscal year of
the Corporation; or
(viii) issue Common Stock or Convertible Securities as
consideration for assets comprising a business that is not within the lines of
business conducted by the Corporation or any of its subsidiaries (or operations
reasonably ancillary thereto) on the Series C Preferred Stock Issue Date.
(d) Without the consent of each holder of Series C Preferred Stock
affected thereby, the Corporation shall not reduce the Liquidation Preference of
the Series C Preferred Stock or the rate at which dividends accumulate thereon,
or modify the dividend cumulation provisions of the Series C Preferred Stock or
the times and prices at which the Series C Prefer-red Stock may be redeemed in a
manner that would be adverse to the holders of Series C Preferred Stock.
(e) In the event that a Default (as such term is defined in the Loan
Agreement (as defined below) as in effect as of the date hereof) relating to
payment obligations of principal and interest thereunder has occurred and
continued for a period of 90 days under the Amended and Restated Loan and
Security Agreement, dated as of September 22, 1997, among KMC Telecom Inc., KMC
Telecom II, Inc. and AT&T Commercial Finance Corporation (the "Loan Agreement"),
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the number of directors constituting the entire Board of Directors shall be
increased by two individuals and the persons holding, from time to time, greater
than 50% of the combined voting power of the outstanding shares of Series C
Preferred Stock and the outstanding shares of Common Stock into which shares of
Series C Preferred Stock theretofore have been converted (the "Majority Series C
Holders") (for themselves and on behalf of all stockholders holding shares of
Common Stock into which shares of Series C Convertible Preferred Stock have
been, or may be, converted) shall be entitled to elect two individuals (the
"Series C Directors") to the Board of Directors. Immediately upon the cure of
such Default, the number of directors constituting the entire Board of Directors
shall be reduced by two individuals and the two individuals elected by the
Majority Series C Holders shall resign or automatically be removed from the
Board of Directors.
7. OPTIONAL REDEMPTION. (a) The outstanding shares of Series C
Preferred Stock shall be subject to redemption, as hereinafter provided, at the
option of the Corporation, in whole but not in part, in connection with an
Acquisition Event. For purposes hereof, "Acquisition Event" shall mean any
merger or consolidation of the Corporation with any other company, person or
entity (whether or not the Corporation is the entity surviving in such
transaction) as a result of which the holders of shares of Common Stock
(determined on a fully diluted basis) will hold less than a majority of the
outstanding shares of common stock or other equity interests of the company,
person or entity resulting from such transaction (or any parent of such entity).
(b) For each share of Series C Preferred Stock redeemed pursuant to
this Section 7, the Corporation shall be obligated on the date fixed for such
redemption (the "Redemption Date"), which date shall not be earlier than the
date of consummation of the applicable Acquisition Event, to pay to the holder
thereof (upon surrender by such holder at the Corporation's principal office of
the certificate representing such share duty endorsed in blank or accompanied by
an appropriate form of assignment) an amount (the "Redemption Price") equal to
the greater of (A) the product of (x) the number of shares of Common Stock into
which such share of Series C Preferred Stock is then convertible and (y) the
consideration to be received by holders of each share of Common Stock pursuant
to such Acquisition Event and (B) the Liquidation Preference of such share of
Series C Preferred Stock plus all accumulated but unpaid dividends thereon
(whether or not declared).
(c) Notice of any redemption of the Series C Preferred Stock pursuant
to this Section 7 (specifying the time and place of redemption, the Redemption
Price, the Conversion Price and the date on and after which shares of Series C
Preferred Stock may no longer be converted) shall be mailed by certified or
registered mail, return receipt requested, to each holder of Series C Preferred
Stock, at the address of such holder shown on the Corporation's records, not
less than 30 nor more than 45 days prior to the Redemption Date.
(d) If the Corporation holds and sets aside money sufficient to Pay
the Redemption Price of the Series C Preferred Stock on the Redemption Date,
then on and after the Redemption Date: (i) the shares of Series C Preferred
Stock shall no longer be convertible into shares of Common Stock; (ii) the
shares of Series C Preferred Stock will cease to be outstanding and dividends on
the Series C Preferred Stock will cease to be declared and paid, whether or not
certificates representing the Series C Preferred Stock have been delivered to
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the Corporation; and (iii) all other rights of the holder in respect thereof
shall terminate (other than the right to receive the Redemption Price upon
delivery of such Series C Preferred Stock).
8. REISSUANCE OF SERIES C PREFERRED STOCK. Shares of Series C
Preferred Stock that have been issued and reacquired in any manner, including
shares purchased or redeemed or exchanged or converted, shall (upon compliance
with any applicable provisions of the laws of Delaware) have the status of
authorized and unissued shares of preferred stock undesignated as to series and
may be redesignated and reissued as part of any series of preferred stock (other
than Series C Preferred Stock).
9. BUSINESS DAY. If any payment or conversion shall be required by the
terms hereof to made on a day that is not a Business Day, such payment or
conversion shall be made on the immediately succeeding Business Day.
10. DEFINITIONS. As used in this Certificate of Designation, the
following terms shall have the following meanings (with terms defined in the
singular having comparable meanings when used in the plural and vice versa
unless the context otherwise requires:
"1997 Stock Option Plan" shall mean the 1997 Stock Purchase and Option
Plan for Key Employees of KMC Telecom Holdings, Inc. and Affiliates, as the same
may be amended from time to time.
"Board of Directors" shall have the meaning ascribed to it in the
first paragraph of this Resolution.
"Business Day" means any day except a Saturday, a Sunday, or other
day on which commercial banks in the State of New York or New Jersey are
authorized or required by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of, such Person's capital stock (but excluding
any debt security that is exchangeable for or convertible into such capital
stock).
"Common Stock" shall have the meaning ascribed to it in Section 2
hereof.
"Convertible Securities" shall mean any evidences of indebtedness,
shares or securities convertible into or exchangeable for Common Stock.
"Corporation" shall have the meaning ascribed to it in the first
paragraph of this Resolution.
"Dividend Payment Date" means March 31, June 30, September 30 and
December 31 of each year.
"Dividend Period" means the Initial Dividend Period and, thereafter,
each Quarterly Dividend Period.
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"Fair Market Value" per share of Common Stock as of a particular date
(the "Determination Date") shall mean: (i) if the Common Stock is listed or
admitted for trading on a national securities exchange, then the Fair Market
Value shall be the average of the last 30 "daily sales prices" of the Common
Stock on the principal national securities exchange on which the Common Stock is
listed or admitted for trading on the last 30 Business Days prior to the
Determination Date, or if not listed or traded on any such exchange, then the
Fair Market Value shall be the average of the last 30 "daily sales prices" of
the Common Stock on the Nasdaq National Market on the last 30 Business Days
prior to the Determination Date (the "daily sales price" shall be the closing
price for bona fide transactions of the Common Stock at the end of each day); or
(ii) if the Common Stock is not so listed or admitted to unlisted trading
privileges or if no such sale is made on at least 25 of such days, then the Fair
Market Value shall be as reasonably determined by an investment banking firm of
recognized national standing selected in good faith by the Company's Board of
Directors or a duly appointed committee of the Board of Directors (which
determination shall be reasonably described in the written notice delivered to
the holders of the Series C Preferred Stock).
"Fully Diluted" shall mean at any date as of which the number of
shares of Common Stock is to be determined, all shares of Common Stock
outstanding at such date and the maximum number of shares of Common Stock
issuable in respect of Convertible Securities and warrants, options and other
rights to purchase (directly or indirectly) shares of Common Stock or
Convertible Securities (giving effect to the then current respective conversion
prices) outstanding on such date (to the extent the fights to convert, exchange
or exercise thereunder are presently exercisable).
"High Yield Debt and Equity Offering" shall have the meaning ascribed
to it in Section 5 hereof
"Initial Dividend Period" means the dividend period commencing on, and
including, the Series C Preferred Stock Issue Date and ending on, and excluding,
the first Dividend Payment Date to occur thereafter.
"Junior Stock" shall have the meaning ascribed to it in Section 2
hereof.
"Liquidation Preference" shall have the meaning ascribed to it in
Section 1 hereof.
"Loan Agreement" shall have the meaning ascribed to it in Section 6
hereof.
"Majority Series C Holders" shall have the meaning ascribed to in
Section 6 hereof.
"Option" shall mean rights, options, or warrants to subscribe for
purchase or otherwise acquire Convertible Securities or Common Stock.
"Parity Preferred Stock" means, collectively, the Series A Preferred
Stock the Corporation's Series B Cumulative Convertible Preferred Stock, par
value $.0l per share, the Series C Preferred Stock, the Corporation's Series D
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Cumulative Convertible Preferred Stock, par value $.0l per share, and any other
series of preferred stock which is determined to be "Parity Preferred Stock" by
the Board of Directors.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental body or other entity of any kind.
"Qualified Public Offering" shall mean the offer for sale of Common
Stock pursuant to an effective registration statement filed by the Corporation
under the Securities Act of 1933, as amended, in any single transaction or
series of related transactions, in which the Corporation receives aggregate
gross proceeds (before deduction of underwriting discounts and expenses of sale)
of at least $40,000,000 in the aggregate; provided that the per share price at
which such shares are sold in the offering (before deduction of underwriting
discounts and expenses of sale) is at least four times the conversion price of
the Series A Preferred Stock which would then be in effect if determined
pursuant to the terms of the Series A Preferred Stock in effect on the initial
issuance date of the Series C Preferred Stock (whether or not any shares of
Series A Preferred Stock are then outstanding).
"Quarterly" shall mean the quarterly periods commencing on, and
including, each Dividend Payment Date and ending on, and excluding, each next
Dividend Payment Date occurring immediately thereafter, respectively.
15
"Realization Event" shall mean the occurrence of (i) the sale of all
or substantially all of the Common Stock or assets of the Corporation or the
consolidation or merger of the Corporation with one or more other corporations,
in any single transaction or series of related transactions, or (ii) the closing
of one or more public offerings of Common Stock in which the Corporation
receives aggregate gross proceeds (before deduction of underwriting discounts
and expenses of sale) of at least $40,000,000.
"Series A Preferred Stock" means the Corporation's Series A Cumulative
Convertible Preferred Stock, par value, $.0l per share.
"Series C Directors" shall have the meaning ascribed to it in Section
6 hereof.
"Series C Preferred Stock" shall have the meaning ascribed to it in
Section 1 hereof.
"Series C Preferred Stock Issue Date" means the first date on which
the Series C Preferred Stock is issued by the Corporation.
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IN WITNESS WHEREOF, KMC TELECOM HOLDINGS, INC. has caused this
certificate to be duly executed by its Chief Financial Officer this 4th day of
November, 1997.
KMC TELECOM HOLDINGS. INC.
By:/s/ Cynthia Worthman
----------------------------
Name: Cynthia Worthman
Title: Chief Financial Officer