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EXHIBIT 3.2
RESTATED ARTICLES OF INCORPORATION
OF
NEXTEL INTERNATIONAL, INC.
Pursuant to RCW 23B.10.070, the following constitutes Restated
Articles of Incorporation of the undersigned, a Washington corporation. These
Restated Articles of Incorporation correctly set forth without change the
corresponding provisions of the Articles of Incorporation as heretofore amended
and supersede the original Articles of Incorporation and all amendments
thereto.
ARTICLE I. NAME
The name of this corporation is Nextel International, Inc.
ARTICLE II. PURPOSES
This corporation is organized to engage in any business, trade or
activity which may be conducted lawfully by a corporation organized
under the Washington Business Corporation Act.
ARTICLE III. SHARES
This corporation is authorized to issue a total of
200,037,500 shares of all classes of capital stock, divided into three
classes as follows:
200,000,000 shares of common stock without par value
12,500 shares of Series A Exchangeable Redeemable Preferred
Stock, par value $10.00
25,000 shares of Series B Redeemable Preferred Stock, par
value $10.00
A. Terms Of Series A Exchangeable Redeemable Preferred
Stock
1. Series A Stated Value.
1.1 Each share of Series A Exchangeable Redeemable
Preferred Stock (the "Series A Preferred Stock") will have a stated
liquidation value of $100,000 (the "Series A Stated Value"), which
Series A Stated Value will increase annually as set forth in Section
1.2. This corporation will issue fractional shares of Series A
Preferred Stock
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upon the original issuance, transfer or exchange of a Series A
Preferred Stock share, unless this corporation and the holder of such
Series A Preferred Stock share agree upon a payment in lieu of any
such fractional share.
1.2 The Series A Stated Value will increase at an annual
rate of accretion equal to 13.625% (the "Rate of Accretion"), which
increase will be calculated semiannually on June 30 and on December 31
of each year during which any shares of Series A Preferred Stock
remain outstanding (each a "Semiannual Calculation Date"). All such
increases will be cumulative and will be calculated by multiplying the
Series A Stated Value as of the immediately prior Semiannual
Calculation Date (or in the case of the first semiannual increase on
June 30, 1998, by the original Series A Stated Value as set forth in
Section 1.1) by 106.8125%, the product of which will constitute the
Series A Stated Value until the next such semiannual calculation. All
calculations required hereunder will be computed on the basis of a
360-day year of 12 30-day months.
2. Dividends. The Series A Preferred Stock has no
profit participation or dividend rights, except as required by law.
3. Series A Liquidation Rights.
3.1 In the event of any liquidation, dissolution or
winding up of the business of this corporation, whether voluntary or
involuntary, each holder of Series A Preferred Stock is entitled to
receive, for each share thereof, out of assets of this corporation
legally available therefor, a preferential amount in cash equal to
(and not more than) the sum of (A) the Series A Stated Value as of the
immediately prior Semiannual Calculation Date, plus (B) an amount
equal to the amount of all legally required dividends or distributions
thereon, if any, payable pursuant to Section 2, plus (C) any Interim
Accreted Value. "Interim Accreted Value" means, for purposes of this
Section 3.1, an amount equal to (i) the Rate of Accretion expressed as
a daily rate from the immediately prior Semiannual Calculation Date
through the effective date of the liquidation, dissolution or winding
up, multiplied by (ii) the Series A Stated Value as of the immediately
prior Semiannual Calculation Date. All preferential amounts to be paid
to the holders of any outstanding shares of Series A Preferred Stock
and Series B Preferred Stock in connection with a liquidation,
dissolution or winding up will be paid before the payment or setting
apart for payment of any amount for, or the distribution of any assets
of this corporation to, the holders of (x)
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any series of Preferred Stock whose terms provide that the holders of
Series A Preferred Stock should receive preferential payment with
respect to such distribution (to the extent of such preference) or (y)
common stock. If in any such distribution the assets of this
corporation are insufficient to pay the holders of the outstanding
shares of the Series A Preferred Stock (and the holders of any Series
B Preferred Stock and any other class or series of capital stock
ranking on a parity with the Series A Preferred Stock as to
distributions in the event of a liquidation, dissolution or winding up
of this corporation) the full amounts to which they may be entitled,
such holders will share ratably in any distribution of assets in
accordance with the sums which would be payable on such distribution
if all sums payable thereon were paid in full. In liquidation, shares
of Series A Preferred Stock and Series B Preferred Stock will rank on
a pari passu basis.
3.2 Holders of shares of Series A Preferred Stock will
not be entitled to receive any amounts with respect to any
liquidation, dissolution or winding up of this corporation other than
the amounts provided in this Section 3. Neither a merger nor
consolidation of this corporation into or with another corporation nor
a merger or consolidation of any other corporation into or with this
corporation, nor a sale, transfer, mortgage, pledge or lease of all or
any part of the assets of this corporation will be deemed to be a
liquidation, dissolution or winding up of this corporation for
purposes of this Section 3.
4. Series A Voting Rights.
4.1 On matters as to which they are entitled to vote,
the holders of Series A Preferred Stock will be entitled to the number
of votes per share (calculated as of the date of any such vote) that
is equal to the Series A Stated Value as of the immediately prior
Semiannual Calculation Date divided by 100,000. The holders of Series
A Preferred Stock will vote separately as a class on all matters as to
which they are entitled to vote, except as otherwise provided herein.
Any action that may be taken hereunder by the holders of the Series A
Preferred Stock at a meeting may be taken by the written consent of
the holders of shares of Series A Preferred Stock outstanding and
entitled to vote thereon.
4.2 Unless it has been approved by the vote of the
holders of a majority of the shares of Series A Preferred Stock and
Series B Preferred Stock outstanding, voting together as if they
constituted a single class, no amendment to the Restated Articles of
Incorporation of this corporation can become effective if it (A)
creates or authorizes the
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creation of any class or series of capital stock (other than the
Series B Preferred Stock) ranking on parity with or superior to the
Series A Preferred Stock or the Series B Preferred Stock in any
respect or (B) alters or changes the powers, preferences or rights of
shares of Series A Preferred Stock or Series B Preferred Stock in a
manner adverse to the holders of Series A Preferred Stock and Series B
Preferred Stock.
4.3 Unless holders of a majority of the shares of Series
A Preferred Stock and Series B Preferred Stock outstanding, voting
together as if they constituted a single class, have given their
approval, this corporation is not authorized to merge, reorganize,
recapitalize, consolidate or consummate a share exchange (each a
"Transaction") if (A) the GAAP Net Worth of the successor or resulting
entity on a pro forma basis after giving effect to the Transaction
(and any related transactions) is not equal to or greater than the
GAAP Net Worth of this corporation immediately prior to the
Transaction, or (B) the priority of the Series A Preferred Stock or
the Series B Preferred Stock in the capital stock of the successor or
resulting entity will rank on parity with or junior to any class or
series of capital stock that has been created or issued without the
approval of the Series A Preferred Stock and the Series B Preferred
Stock pursuant to Section 4.2. "GAAP Net Worth" means the net worth of
this corporation or any successor or resulting entity, as the case may
be, calculated in accordance with generally accepted accounting
principles, as in effect from time to time, on a basis consistent with
past practice.
4.4 No dividend or other distribution will be declared
or paid on the common stock or any other stock of this corporation
ranking junior to or ranking pari passu with the Series A Preferred
Stock (except any outstanding Series B Preferred Stock) without the
prior consent of the holders of a majority of the shares of Series A
Preferred Stock outstanding, and until any legally required
dividends or distributions owing on the Series A Preferred Stock have
been paid in full.
4.5 In addition to the voting rights set forth herein,
the holders of Series A Preferred Stock will be entitled to exercise
such voting rights as may be provided to them under Washington law to
the extent such voting rights are not inconsistent with those set
forth herein. Nothing herein should be read or construed as limiting
such voting rights.
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5. Exchange for Series B Preferred Stock.
5.1 Series A Exchange Right.
5.1.1 Each holder of Series A Preferred Stock may, at any
time following a Exchange Trigger Event, exchange any or all of such
holder's shares of Series A Preferred Stock into such number of fully
paid and non-assessable shares of Series B Preferred Stock as equals
(A) the sum of the Series A Stated Value as of the immediately prior
Semiannual Calculation Date plus any Interim Accreted Value of such
Series A Preferred Stock, multiplied by (B) the number of shares of
Series A Preferred Stock being exchanged, divided by (C) the Series B
Stated Value (as defined in Section 1 of the Terms of Series B
Redeemable Preferred Stock). For purposes of this Section 5.1.1,
"Interim Accreted Value" means an amount equal to (i) the Rate of
Accretion expressed as a daily rate from the immediately prior
Semiannual Calculation Date through the date of exchange, multiplied
by (ii) the Series A Stated Value as of the immediately prior
Semiannual Calculation Date. To the extent necessary, this corporation
will issue fractional shares of Series B Preferred Stock upon any
exchange pursuant to this Section 5, unless this corporation and the
holder of the Series A Preferred Stock being exchanged agree upon a
payment in lieu of any such fractional share. In order to exercise the
exchange privilege under this Section 5.1.1, a holder of shares of
Series A Preferred Stock must give written notice to this corporation
at its principal office stating the holder's name and address and the
number of shares of Series A Preferred Stock such holder elects to
exchange.
5.1.2 "Exchange Trigger Event" means (A) the
recapitalization or reorganization of this corporation; (B) a
registered, underwritten public offering of any capital stock of this
corporation; (C) the sale or other disposition by Nextel
Communications, Inc., a Delaware corporation ("Nextel Communications")
or a wholly owned subsidiary of Nextel Communications, of shares of
common stock of this corporation or (D) the issuance of shares of
common stock by this corporation, such that following any event
covered by clause (C) or (D) above, Nextel Communications owns less
than fifty percent (50%) of this corporation's outstanding shares of
common stock.
5.1.3 At such time as any certificate or certificates
representing the Series A Preferred Stock that has been exchanged are
surrendered to this corporation, this corporation will issue and
deliver a certificate or certificates representing the appropriate
number of shares of Series B
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Preferred Stock (calculated pursuant to Section 5.1.1) to each former
holder of Series A Preferred Stock participating in the exchange. In
case of the exchange under Section 5.1.1 of only a part of the shares
of Series A Preferred Stock represented by a certificate surrendered
to this corporation, this corporation will forthwith issue and deliver
a new certificate for the number of shares of Series A Preferred Stock
that have not been exchanged. Until any certificate or certificates
representing Series A Preferred Stock that has been exchanged are
surrendered and a certificate or certificates representing the Series
B Preferred Stock into which such Series A Preferred Stock has been
exchanged has been issued and delivered, the certificate or
certificates representing the shares of Series A Preferred Stock that
have been exchanged will represent the shares of Series B Preferred
Stock into which such shares of Series A Preferred Stock have been
exchanged. This corporation will pay all documentary, stamp or similar
issue or transfer tax, if any, due on the issue of shares of Series B
Preferred Stock issuable upon exchange of the Series A Preferred
Stock.
6. Redemption.
6.1 Corporation's Right to Redeem. This corporation may
(A) in its sole discretion and at any time, redeem all shares of the
Series A Preferred Stock outstanding or (B) with the prior consent of
the holders of a majority of such shares outstanding, redeem a portion
of the Series A Preferred Stock then outstanding, on a pro rata basis,
in either case at a total per share redemption price equal to the sum
of the Series A Stated Value as of the immediately prior Semiannual
Calculation Date plus any Interim Accreted Value. "Interim Accreted
Value," for purposes of this Section 6.1, means an amount equal to (i)
the Rate of Accretion expressed as a daily rate from the immediately
prior
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Semiannual Calculation Date through the Series A Redemption Date,
multiplied by (ii) the Series A Stated Value as of the immediately
prior Semiannual Calculation Date.
6.2 Series A Redemption Notice.
6.2.1 Subject to the requirements of Section 6.1, this
corporation may call all or a portion of the outstanding shares of
Series A Preferred Stock for redemption and set a date for the
redemption (the "Series A Redemption Date"). Notice of such proposed
redemption (the "Series A Redemption Notice") must be mailed at least
45 days prior to the Series A Redemption Date to all holders of shares
of Series A Preferred Stock at their respective addresses as the same
appear on the stock record books of this corporation. Each Series A
Redemption Notice will state (A) the Series A Redemption Date, (B) the
Series A Redemption Price, (C) the place or places where such shares
of Series A Preferred Stock are to be surrendered, and (D) that
legally required dividends or distributions, if any, on shares of
Series A Preferred Stock to be redeemed will cease to accrue on the
Series A Redemption Date. No defect in any such notice as to any
shares of Series A Preferred Stock will affect the proceedings for the
redemption of any shares of Series A Preferred Stock.
6.2.2 Upon surrender in accordance with the Series A
Redemption Notice of the certificates for any shares of Series A
Preferred Stock so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors so requires and the notice so
states), such shares of Series A Preferred Stock will be redeemed by
this corporation, which will make payment to the surrendering holder
in an amount equal to the product of the applicable Series A
Redemption Price multiplied by the number of shares of Series A
Preferred Stock being surrendered by such holder for redemption.
6.3 Payment Prior to Series A Redemption Date.
6.3.1 If a Series A Redemption Notice is duly given as
provided for above, or if this corporation has given to the bank or
trust company hereinafter referred to irrevocable authorization to
give or complete such Series A Redemption Notice, and if prior to the
applicable Series A Redemption Date the funds necessary for such
redemption have been deposited by this corporation with a bank or
trust company in good
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standing (which bank or trust company will have been identified in a
written notice given to the holders whose shares of Series A Preferred
Stock are to be redeemed), organized under the laws of the United
States of America or a State thereof, having a capital surplus and
undivided profits aggregating at least $100,000,000 according to its
last published statement of condition, in trust for the pro rata
benefit of the holders of the shares of Series A Preferred Stock so
called for or otherwise subject to redemption, so as to be, and to
continue to be, available therefor, then, notwithstanding that any
certificate for shares of Series A Preferred Stock so called for or
otherwise subject to redemption may not have been surrendered for
cancellation, all shares of Series A Preferred Stock so called for or
otherwise subject to redemption will no longer be deemed to be
outstanding on and after such Series A Redemption Date, and all rights
with respect to such shares will forthwith cease and terminate at the
close of business on such Series A Redemption Date, except only the
right of the holders thereof to receive, out of the funds so set aside
in trust, the amount payable on redemption thereof, without interest.
Any interest accrued on any funds so deposited will be the property of
this corporation and will be paid to this corporation from time to
time.
6.3.2 Any funds set aside or deposited, as the case may
be, in accordance with Section 6.3.1 that remain unclaimed at the end
of one year from the applicable Series A Redemption Date will be
released or repaid to this corporation, after which the holders of the
shares of Series A Preferred Stock so called for redemption will look
only to this corporation for payment of the amount payable on
redemption thereof, without interest, subject to the applicable law of
escheat.
7. Other Provisions.
7.1 Issuance of Shares. This corporation will not issue,
or enter into any commitment to issue, shares of Series A Preferred
Stock except (A) pursuant to the terms of any agreement in effect on
the date that the Articles of Amendment of the Restated Articles of
Incorporation of this corporation establishing the powers, preferences
and rights of the Series A Preferred Stock were originally filed with
the Secretary of State of the State of Washington, or (B) such other
issuances or issuance commitments as have been approved in advance by
the vote of the holders of a majority of the shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting
together as if they constituted a single class.
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7.2 Cancellation of Shares of Series A Preferred Stock.
No share or shares of Series A Preferred Stock acquired by this
corporation for any reason can be reissued, and all such shares will
be canceled, retired and eliminated from the shares of Series A
Preferred Stock which this corporation is authorized to issue.
7.3 Reservation of Shares. This corporation will at all
times reserve from its authorized Series B Preferred Stock a
sufficient number of shares to provide for exchange of all shares of
Series A Preferred Stock from time to time outstanding.
7.4 Notices. This corporation will provide to each
holder of shares of Series A Preferred Stock a copy of any materials
delivered to the holders of any other shares of this corporation's
capital stock by or on behalf of this corporation at the same time
such materials are being delivered to such other holders.
7.5 Record Holders. This corporation and its transfer
agent, if any, for the shares of Series A Preferred Stock, may deem
and treat the record holder of any shares of Series A Preferred Stock
as the sole true and lawful owner thereof for all purposes, and
neither this corporation nor any such transfer agent will be affected
by any notice to the contrary.
B. Terms of Series B Redeemable Preferred Stock
1. Series B Stated Value. Each share of Series B
Redeemable Preferred Stock (the "Series B Preferred Stock") will have
a liquidation preference at a stated value, calculated at the time the
first share(s) of Series A Preferred Stock are exchanged into share(s)
of Series B Preferred Stock, equal to the Series A Stated Value as of
the immediately prior Semiannual Calculation Date plus an amount equal
to any Interim Accreted Value (the "Series B Stated Value"). "Interim
Accreted Value," for the purposes of this Section 1, means an amount
equal to (i) the Rate of Accretion expressed as a daily rate from the
immediately prior Semiannual Calculation Date through the date of
exchange, multiplied by (ii) the Series A Stated Value as of the
immediately prior Semiannual Calculation Date. This corporation will
issue fractional shares of Series B Preferred Stock upon the original
issuance, transfer or exchange of a Series B Preferred Stock share,
unless this corporation and the holder of such Series B Preferred
Stock share agree upon a payment in lieu of any such fractional share.
All future issuances of Series B Preferred Stock, following the first
such
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issuance, will be made at the Series B Stated Value.
2. Dividends.
2.1(a) Beginning on their date of issuance, holders of
Series B Preferred Stock will be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally available
therefor, dividends on each share of Series B Preferred Stock
outstanding held by them, at a rate per annum equal to 13.625% of the
Series B Stated Value, or a daily rate of 0.0378% of the Series B
Stated Value (the "Daily Rate"). Such dividends will be cumulative,
whether or not earned or declared, and will be payable quarterly in
arrears on March 31, June 30 and September 30, December 31 (each a
"Distribution Date") of each year or portion thereof ending on or
prior to March 12, 2010 (such twelve-year period, the "Initial Term")
during which any shares of Series B Preferred Stock remain outstanding
and also shall be payable in arrears on March 12, 2010 with respect to
the period from January 1, 2010 to March 12, 2010 if any shares of
Series B Preferred Stock remain outstanding.
(b) During each twelve-month period beginning on March
13, 2010 and on each subsequent March 13 (each, a "Subsequent Year"),
holders of Series B Preferred Stock will be entitled to receive, when,
as and if declared by the Board of Directors, out of funds legally
available therefor, dividends on each share of Series B Preferred
Stock outstanding held by them, at a rate per annum equal to 18.00% of
the Series B Stated Value, or a daily rate of 0.0500% of the Series B
Stated Value (the "Subsequent Year Daily Rate"). Such dividends will
be cumulative, whether or not earned or declared, and will be payable
on June 12, September 12, and December 12, March 12 in each such
Subsequent Year, commencing on June 12, 2010 (each, a "Subsequent Year
Distribution Date") if any shares of Series B Preferred Stock remain
outstanding.
2.2 Dividends on the Series B Preferred Stock will be
will be computed on the basis of a 360-day year of twelve 30-day
months.
2.3 References herein to the "Appropriate Year" shall
mean a year during the Initial Term or a Subsequent Year, as
appropriate to the context. References herein to the "Appropriate
Daily Rate" shall mean the Daily Rate or a Subsequent Year Daily Rate,
as appropriate to the context. References herein to an "Appropriate
Distribution Date" shall mean a Distribution Date or a Subsequent Year
Distribution Date, as appropriate to the context.
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2.4 Dividends payable on the outstanding shares of
Series B Preferred Stock shall be paid in cash or, at the option of
this corporation, in additional fully paid and non-assessable shares
of Series B Preferred Stock having an aggregate Series B Stated Value
equal to the amount of such dividends ("PIK Dividend Shares");
PROVIDED, THAT, PIK Dividend Shares may not be issued to pay any
amount of accrued but unpaid dividends or distributions due pursuant
to Section 3 below, or any amount of accrued but unpaid dividends or
distributions due pursuant to Section 5 below. All PIK Dividend
Shares, from and after their issuance on the Appropriate Distribution
Date, shall have the same rights and privileges as any other
outstanding shares of Series B Preferred Stock.
3. Series B Liquidation Rights.
3.1 In the event of any liquidation, dissolution or
winding up of the business of this corporation, whether voluntary or
involuntary, each holder of Series B Preferred Stock will be entitled
to receive, for each share thereof, out of assets of this corporation
legally available therefor, a preferential amount in cash equal to
(and not more than) the sum of (A) the Series B Stated Value plus (B)
an amount equal to the amount of all declared (or due to be declared),
but unpaid dividends or distributions thereon, if any, payable
pursuant to Section 2.1 during each Appropriate Year, plus an amount
equal to the Appropriate Daily Rate multiplied by the Series B Stated
Value, multiplied by the number of days since the immediately prior
Appropriate Distribution Date. All preferential amounts to be paid to
the holders of any outstanding shares of Series B Preferred Stock and
Series A Preferred Stock in connection with such liquidation,
dissolution or winding up will be paid before the payment or setting
apart for payment of any amount for, or the distribution of any assets
of this corporation to, the holders of (i) any other series of
preferred stock whose terms provide that the holders of Series B
Preferred Stock should receive preferential payment with respect to
such distribution (to the extent of such preference) or (ii) common
stock. If in any such distribution the assets of this corporation are
insufficient to pay the holders of the outstanding shares of the
Series B Preferred Stock (and the holders of any Series A Preferred
Stock and any class or series of capital stock ranking on a parity
with the Series B Preferred Stock as to distributions in the event of
a liquidation, dissolution or winding up of this corporation) the full
amounts to which they may be entitled, such holders will share ratably
in any distribution of assets in accordance with the sums which would
be payable upon such distribution if all sums payable thereon were
paid
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in full. In liquidation, shares of Series B Preferred Stock and Series
A Preferred Stock will rank on a pari passu basis.
3.2 Holders of shares of Series B Preferred Stock will
not be entitled to receive any amounts with respect to any
liquidation, dissolution or winding up of this corporation other than
the amounts provided in this Section 3. Neither a merger nor
consolidation of this corporation into or with another corporation nor
a merger or consolidation of any other corporation into or with this
corporation, nor a sale, transfer, mortgage, pledge or lease of all or
any part of the assets of this corporation will be deemed to be a
liquidation, dissolution or winding up of this corporation for
purposes of this Section 3.
4. Series B Voting Rights.
4.1 On all matters as to which they are entitled to
vote, the holders of Series B Preferred Stock will be entitled to the
number of votes per share (calculated as of the date of any such vote)
that is equal to the Series B Stated Value divided by 100,000. The
holders of Series B Preferred Stock will vote separately as a class on
all matters as to which they are entitled to vote, except as otherwise
provided herein. Any action that may be taken hereunder by the holders
of the Series B Preferred Stock at a meeting may be taken by the
written consent of the holders of shares of Series B Preferred Stock
outstanding and entitled to vote thereon.
4.2 Immediately following the issuance of any shares of
Series B Preferred Stock, the number of Directors constituting the
Board of Directors will be adjusted to permit the holders of the
majority of the then outstanding shares of Series B Preferred Stock,
voting separately as a class, to elect one additional Director to the
Board of Directors (the "Series B Director"). The Series B Director's
initial term will expire at the next regularly scheduled meeting of
the holders of the common stock of this corporation, at which meeting
the holders of shares of Series B Preferred Stock outstanding voting
separately as a class will be entitled to elect one Director. Any
individual elected to the Board of Directors by vote of the Series B
Preferred Stock pursuant to this Section 4.2 is referred to herein as
a "Series B Director."
4.3 A Series B Director may only be removed from office
by the vote of the holders of a majority of shares of Series B
Preferred
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Stock outstanding, voting separately as a class. Except as set forth
in Section 4.7, any vacancy for the Series B Director position may be
filled only by the vote of the holders of a majority of shares of
Series B Preferred Stock outstanding, voting separately as a class.
4.4 If dividends on the Series B Preferred Stock are in
arrears and unpaid for four consecutive quarterly periods or for any
six quarterly periods (whether or not consecutive) (each, a "Dividend
Default"), then the number of Directors constituting the Board of
Directors will be adjusted to permit the holders of the majority of
the then outstanding shares of Series B Preferred Stock, voting
separately as a class, to elect an additional Director (the "Series B
Default Director"). For the purpose of determining the number of
quarterly periods for which accrued dividends have not been paid, any
accrued and unpaid dividend that is subsequently paid will not be
treated as unpaid.
4.5 The right of the holders of Series B Preferred Stock
to elect the Series B Default Director as described above will
continue until such time as all accumulated dividends that are in
arrears on the Series B Preferred Stock are paid in full, at which
time the term of any Series B Default Director elected pursuant to
Section 4.4 hereof will terminate and the number of Directors
constituting the Board of Directors will be reduced to the number
necessary to reflect the termination of the right of the holders of
the Series B Preferred Stock to elect a Series B Default Director,
subject always to the same provisions for the renewal and divestment
of such special voting rights in the case of any future Dividend
Default. At any time after voting power to elect a Series B Default
Director has become vested and is continuing in the holders of shares
of the Series B Preferred Stock pursuant to Section 4.4 hereof, or if
a vacancy exists in the office of the Series B Default Director
elected by the holders of shares of the Series B Preferred Stock, an
officer of this corporation may, and upon the written request of the
record holders of at least 25% of the shares of Series B Preferred
Stock then outstanding addressed to the secretary of this corporation
must, call a special meeting of the holders of the Series B Preferred
Stock, for the purpose of electing a new Series B Default Director. If
such meeting is called by an officer of this corporation within 30
days after personal service of said written request upon the secretary
of this corporation, or within 30 days after mailing the same within
the United States by certified mail, addressed to the secretary of
this corporation at its principal executive offices, then the holders
of record of at least 25% of the shares of the Series B Preferred
Stock outstanding may designate in
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writing one of their number to call such meeting at the expense of
this corporation, and such meeting may be called by the person so
designated upon the notice required for the annual meetings of
shareholders of this corporation and will be held at the place for
holding the annual meetings of shareholders or such other place in the
United States as may be designated in such notice. Notwithstanding the
provisions of this Section 4.5, no such special meeting need be called
if any such request is received less than 40 days before the day fixed
for the next ensuing annual or special meeting of shareholders of this
corporation. This corporation will provide any holder of shares of the
Series B Preferred Stock so designated access to the lists of holders
of shares of the Series B Preferred Stock for purposes of calling a
meeting pursuant to the provisions of this Section 4.5.
4.6 At any meeting held for the purpose of electing a
Series B Director or a Series B Default Director, the presence in
person or by proxy of the holders of at least a majority of the shares
of Series B Preferred Stock outstanding will be required to constitute
a quorum of such Series B Preferred Stock.
4.7 Any vacancy occurring in the office of the Series B
Director can be filled by a then serving Series B Default Director, if
any, and any vacancy occurring in the office of the Series B Default
Director, if applicable, can be filled by any then serving Series B
Director, in either case unless and until the holders of a majority of
the shares of Series B Preferred Stock outstanding elect another
person to fill any such vacancy.
4.8 Upon the redemption of the last share of Series B
Preferred Stock then outstanding, the number of Directors constituting
the Board of Directors will be adjusted to eliminate any then existing
Series B Director or Series B Default Director seats, subject always
to the provisions of this Section 4 for the renewal and divestment of
such special Series B Preferred Stock voting rights on the subsequent
issuance of any shares of Series B Preferred Stock.
4.9 Unless it has been approved by the vote of the
holders of a majority of shares of Series A Preferred Stock and Series
B Preferred Stock outstanding, each voting together as if they
constituted a single class, no amendment to the Restated Articles of
Incorporation of this corporation can become effective if it (A)
creates or authorizes the creation of any class or series of capital
stock (other than the Series A Preferred Stock) ranking on parity with
or superior to the Series A
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Preferred Stock or the Series B Preferred Stock in any respect or (B)
alters or changes the powers, preferences or rights of shares of
Series B Preferred Stock in a manner adverse to the holders of the
Series A Preferred Stock or the Series B Preferred Stock.
4.10 Unless holders of a majority of shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting
together as if they constituted a single class, have given their
approval, this corporation is not authorized to participate or engage
in any Transaction if (A) the GAAP Net Worth of the successor or
resulting entity on a pro forma basis after giving effect to the
Transaction (and any related transactions) is not equal to or greater
than the GAAP Net Worth of this corporation immediately prior to the
Transaction or (B) the priority of the Series B Preferred Stock in the
capital stock of the successor or resulting entity is on parity with
or junior to any class or series of capital stock that has been
created or issued without the approval of the Series A Preferred Stock
and Series B Preferred Stock pursuant to Section 4.9.
4.11 No dividend or other distribution will be declared
or paid on the common stock or any other stock of this corporation
ranking junior to or ranking pari passu with the Series B Preferred
Stock (except as required by law on any outstanding Series A Preferred
Stock) without the prior consent of the holders of a majority of the
shares of Series B Preferred Stock outstanding and until any dividends
or distributions owing on the Series B Preferred Stock have been paid
in full.
4.12 In addition to the voting rights set forth herein,
the holders of Series B Preferred Stock will be entitled to exercise
such voting rights as may be provided to them under Washington law to
the extent such voting rights are not inconsistent with those set
forth herein. Nothing herein should be read or construed as limiting
such voting rights.
5. Redemption of Series B Preferred Stock.
5.1 Corporation's Right to Redeem. This corporation may
(A) in its sole discretion and at any time, redeem all shares of the
Series B Preferred Stock outstanding, or (B) with the consent of the
holders of a majority of such shares outstanding, redeem a portion of
the Series B Preferred Stock then outstanding, on a pro rata basis, in
either case at a total per share redemption price equal to the sum of
the Series B Stated Value, plus an amount equal to the amount of all
declared (or due to be declared), but unpaid dividends or
distributions thereon, if any, payable
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pursuant to Section 2.1, through the immediately prior Appropriate
Distribution Date, plus an amount equal to the product of the
Appropriate Daily Rate multiplied by the Series B Stated Value,
multiplied by the number of days since the immediately prior
Appropriate Distribution Date (the "Series B Redemption Price").
5.2 Series B Redemption Notice.
5.2.1 Subject to the provisions of Section 5.1, this
corporation may call all or a portion of the outstanding shares of
Series B Preferred Stock for redemption and set a date for the
redemption (the "Series B Redemption Date"). Notice of a proposed
redemption pursuant to Section 5.1 (each such notice a "Series B
Redemption Notice") must be mailed at least 45 days prior to the
Series B Redemption Date to all holders of shares of Series B
Preferred Stock at their respective addresses as the same appear on
the stock record books of this corporation. Each Series B Redemption
Notice will state (A) the Series B Redemption Date, (B) the Series B
Redemption Price, (C) the place or places where such shares of Series
B Preferred Stock are to be surrendered, and (D) that dividends on
shares of Series B Preferred Stock to be redeemed will cease to accrue
on the Series B Redemption Date. No defect in any such notice as to
any shares of Series B Preferred Stock will affect the proceedings for
the redemption of any shares of Series B Preferred Stock.
5.2.2 Upon surrender in accordance with the Series B
Redemption Notice of the certificates for any shares of Series B
Preferred Stock so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors so requires and the notice so
states), such shares of Series B Preferred Stock will be redeemed by
this corporation, which will make payment to the surrendering holder
in an amount equal to the product of the applicable Series B
Redemption Price, multiplied by the number of shares of Series B
Preferred Stock being surrendered by such holder for redemption.
5.3 Payment Prior to Series B Redemption Date.
5.3.1 If a Series B Redemption Notice is duly given as
provided for above, or if this corporation has given to the bank or
trust company hereinafter referred to irrevocable authorization to
give or complete such Series B Redemption Notice, and if prior to the
applicable Series B Redemption Date the funds necessary for such
redemption will have been deposited by this corporation with a bank or
trust company in good
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standing (which bank or trust company will have been identified in a
written notice given to the holders whose shares of Series B Preferred
Stock are to be redeemed), organized under the laws of the United
States of America or a State thereof, having a capital surplus and
undivided profits aggregating at least $100,000,000 according to its
last published statement of condition, in trust for the pro rata
benefit of the holders of the shares of Series B Preferred Stock so
called for or otherwise subject to redemption, so as to be, and to
continue to be, available therefor, then, notwithstanding that any
certificate for shares of Series B Preferred Stock so called for or
otherwise subject to redemption may not have been surrendered for
cancellation, all shares of Series B Preferred Stock so called for or
otherwise subject to redemption will no longer be deemed to be
outstanding on and after such Series B Redemption Date and all rights
with respect to such shares will forthwith cease and terminate at the
close of business on such Series B Redemption Date, except only the
right of the holders thereof to receive, out of the funds so set aside
in trust, the amount payable on redemption thereof, without interest.
Any interest accrued on any funds so deposited will be the property of
this corporation and will be paid to this corporation from time to
time.
5.3.2 Any funds set aside or deposited, as the case may
be, in accordance with Section 5.3.1 that remain unclaimed at the end
of one year from the applicable Series B Redemption Date will be
released or repaid to this corporation, after which the holders of the
shares of Series B Preferred Stock so called for redemption will look
only to this corporation for payment of the amount payable on
redemption thereof, without interest, subject to the applicable law of
escheat.
6. Other Provisions.
6.1 Issuance of Shares. This corporation will not issue,
or enter into any commitment to issue, shares of Series B Preferred
Stock except (A) in exchange of shares of Series A Preferred Stock on
the terms and subject to the conditions set forth in the Terms of
Series A Exchangeable Redeemable Preferred Stock, or (B) as PIK
Dividend Shares as contemplated in accordance with Section 2.4 above,
or (C) such other issuances or issuance as have been approved in
advance by the vote of the holders of a majority of the shares of any
Series A Preferred Stock and Series B Preferred Stock outstanding,
voting together as if they constituted a single class.
6.2 Cancellation of Shares of Series B Preferred Stock.
No
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share or shares of Series B Preferred Stock acquired by this
corporation for any reason will be reissued, and all such shares will
be canceled, retired and eliminated from the shares of Series B
Preferred Stock which this corporation is authorized to issue.
6.3 Reservation of Shares. This corporation will at all
times reserve from its authorized Series B Preferred Stock a
sufficient number of shares to provide for exchange of all shares of
Series A Preferred Stock from time to time outstanding and for payment
of the maximum amount of PIK Dividend Shares issuable in respect of
all Shares of Series B Preferred Stock from time to time outstanding.
6.4 Notices. This corporation will provide to each
holder of shares of Series B Preferred Stock a copy of any materials
delivered to the holders of any other shares of this corporation's
capital stock by or on behalf of this corporation at the same time
such materials are being delivered to such other holders.
6.5 Record Holders. This corporation and its transfer
agent, if any, for the Series B Preferred Stock, may deem and treat
the record holder of any shares of Series B Preferred Stock as the
sole true and lawful owner thereof for all purposes, and neither this
corporation nor any such transfer agent will be affected by any notice
to the contrary.
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ARTICLE IV. NO PREEMPTIVE RIGHTS
Except as may otherwise be provided by the Board of Directors, no
preemptive rights shall exist with respect to shares of stock or
securities convertible into shares of stock of this corporation.
ARTICLE V. NO CUMULATIVE VOTING
At each election for directors, every shareholder entitled to vote at
such election has the right to vote in person or by proxy the number
of shares held by such shareholder for as many persons as there are
directors to be elected. No cumulative voting for directors shall be
permitted.
ARTICLE VI. BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal
the Bylaws or adopt new Bylaws. Nothing herein shall deny the
concurrent power of the shareholders to adopt, alter, amend or repeal
the Bylaws.
ARTICLE VII. REGISTERED AGENT AND OFFICE
The name of the registered agent of this corporation and the address
of its registered office are Lawco of Washington, Inc., 1201 Third
Avenue, 40th Floor, Seattle, Washington 98101-3099.
ARTICLE VIII. DIRECTORS
The number of directors of this corporation shall be determined in the
manner specified by the Bylaws and may be increased or decreased from
time to time in the manner provided therein. At the time of the
restatement of these Articles of Incorporation, the following persons
are serving as the directors of this corporation are as follows:
Name Address
---- -------
Daniel F. Akerson 2001 Edmund Halley Drive
Reston, VA 20191
Timothy M. Donahue 2001 Edmund Halley Drive
Reston, VA 20191
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Keith D. Grinstein 1191 Second Avenue, Suite 1600
Seattle, WA 98101
C. James Judson 2320 Carillon Point
Kirkland, WA 98033
Craig O. McCaw 2320 Carillon Point
Kirkland, WA 98033
Steven M. Shindler 2001 Edmund Halley Drive
Reston, VA 20191
Dennis M. Weibling 2320 Carillon Point
Kirkland, WA 98033
Steven P. Dussek 2001 Edmund Halley Drive
Reston, VA 20191
ARTICLE IX. INCORPORATOR
The name and address of the incorporator is as follows:
Name Address
---- -------
C. James Judson 2600 Century Square
1501 4th Avenue
Seattle, WA 98101-1688
ARTICLE X. LIMITATION OF DIRECTORS' LIABILITY
A director shall have no liability to the corporation or its
shareholders for monetary damages for conduct as a director, except
for acts or omissions that involve intentional misconduct or for
conduct violating RCW 23B.08.302, or for any transaction from which
the director will personally receive a benefit in money, property or
services to which the director is not legally entitled. If the
Washington Business Corporation Act is hereafter amended to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director shall be
eliminated or limited to the full extent permitted by the Washington
Business Corporation Act, as so amended. Any repeal or modification of
this Article shall not adversely affect any right or protection of a
director of the corporation existing at the time of
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such repeal or modification occurring prior to such repeal or
modification.
ARTICLE XI. SHAREHOLDER ACTIONS
Any action required or permitted to be taken at a shareholders'
meeting may be taken without a meeting or a vote if either:
(i) the action is taken by all shareholders entitled to
vote on the action; or
(ii) So long as this corporation is not a public company,
the action is taken by shareholders holding of record, or otherwise
entitled to vote, in the aggregate not less than the minimum number of
votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote on the action were
present and voted.
To the extent the Washington Business Corporation Act requires prior
notice of any such action to be given to nonconsenting or nonvoting
shareholders, such notice shall be given in advance of the date on
which the action becomes effective. Unless otherwise required by the
Washington Business Corporation Act in the case of action that would
constitute a significant business transaction or that would entitle
shareholders to exercise dissenters' rights, such notice shall be
effective if given five days in advance by United States mail, first
class postage prepaid, addressed to the shareholders at their
addresses appearing on the records of the corporation. The form of the
notice shall be sufficient to apprise the nonconsenting or nonvoting
shareholder of the nature of the action to be effected, in a manner
approved by the Directors of this corporation or by the committee or
officers to whom the Board has delegated that responsibility.
These Restated Articles of Incorporation do not contain an amendment
to the Articles of Incorporation.
These Restated Articles of Incorporation do not contain any amendment
to the Articles of Incorporation requiring shareholder approval. The date of
adoption of the Restated Articles of Incorporation by the Board of Directors is
June 2, 2000.
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These Restated Articles of Incorporation are executed by said
corporation by its duly authorized officer.
DATED June 12, 2000.
NEXTEL INTERNATIONAL, INC.
By /s/ Thomas J. Sidman
-----------------------------------------
Thomas J. Sidman, Vice President
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CERTIFICATE ACCOMPANYING
RESTATED ARTICLES OF INCORPORATION
OF
NEXTEL INTERNATIONAL, INC.
Pursuant to RCW 23B.10.070, the foregoing constitutes Restated Articles
of Incorporation of the undersigned, a Washington corporation. The Restated
Articles of Incorporation supersede the original Articles of Incorporation and
all amendments thereto.
The Restated Articles of Incorporation do not contain an amendment to
the Articles of Incorporation and were duly adopted by the Board of Directors.
This certificate accompanying the Restated Articles of Incorporation
is executed by said corporation by its duly authorized officer.
DATED June 12, 2000.
NEXTEL INTERNATIONAL, INC.
By /s/ Thomas J. Sidman
------------------------------------------
Thomas J. Sidman, Vice President
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