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SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(C) OF
THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
[ ] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
[X] Definitive Information Statement
SPECTRASITE HOLDINGS, INC.
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(Name of Registrant as Specified in Its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(4) Date Filed:
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SPECTRASITE HOLDINGS, INC.
100 REGENCY FOREST DRIVE
SUITE 400
CARY, NORTH CAROLINA 27511
(919) 468-0112
INFORMATION STATEMENT
This information statement is being furnished to the stockholders of
SpectraSite Holdings, Inc., a Delaware corporation, in connection with the
amendment and restatement of SpectraSite's certificate of incorporation to:
- authorize the issuance of 40,000,000 shares of preferred stock; and
- integrate the preferred stock amendment and previous amendments of
SpectraSite's certificate of incorporation into a single instrument.
The board of directors of SpectraSite believes that the amendment to and
the restatement of SpectraSite's certificate of incorporation is advisable and
in the best interests of SpectraSite and its stockholders. Accordingly, the
board of directors of SpectraSite has unanimously approved the amendment and
restatement.
This information statement is being first sent to stockholders on or about
November 29, 2000. In accordance with Delaware law, the holders of a majority of
the outstanding shares of common stock of SpectraSite have executed a written
consent approving the amendment to and the restatement of SpectraSite's
certificate of incorporation.
WE ARE NOT ASKING FOR A PROXY, AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
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AUTHORIZE THE ISSUANCE OF PREFERRED STOCK
GENERAL
The board of directors has adopted a resolution unanimously approving and
recommending the amendment to SpectraSite's certificate of incorporation to
authorize the issuance of up to 40,000,000 shares of preferred stock. Section 4
of Exhibit A attached to this information statement contains the complete text
of the amendment to the certificate of incorporation.
The amendment authorizes the issuance of up to 40,000,000 shares of
preferred stock, par value $0.001 per share. The board of directors will,
without further action by the stockholders, unless otherwise required by law or
any applicable rules of any stock exchange or the Nasdaq Stock Market, Inc. then
pertaining to SpectraSite, be authorized to issue up to 40,000,000 shares of
preferred stock at such times, for such purposes and for such consideration as
the board of directors may determine. The stockholders of SpectraSite are not
entitled to preemptive rights with respect to the issuance of any authorized but
unissued shares of preferred stock.
REASONS FOR THE BOARD RECOMMENDATION
The board of directors believes that the availability of preferred stock
may prove useful in connection with financing the capital needs of SpectraSite,
including possible future acquisitions. The authorization will enable
SpectraSite to act promptly if appropriate circumstances arise which require the
issuance of such shares of preferred stock. SpectraSite has historically
financed its working capital requirements through cash from operations, the
issuance of debt and equity securities and bank borrowings. SpectraSite is
currently exploring alternatives to raise additional capital. Such additional
financing could consist of additional debt or the issuance of equity securities,
including the preferred stock, or a combination of both. However, SpectraSite
does not have any current plan or intention to issue shares of preferred stock.
The amendment authorizes the board of directors to provide for the
issuance, from time to time, of preferred stock in one or more series and to fix
the terms of each series. Each series of preferred stock could, as determined by
the board of directors at the time of issuance, rank, in respect of dividends
and liquidation, senior to the common stock.
In establishing the terms of a series of preferred stock, the board of
directors would be authorized to set, among other things:
- the number of shares;
- the dividend rate and preferences;
- the cumulative or non-cumulative nature of dividends;
- the redemption provisions;
- the sinking fund provisions;
- the conversion rights;
- the amounts payable and preferences in the event of the voluntary or
involuntary liquidation of SpectraSite; and
- the voting rights,
in addition to those required by law. Such terms could include provisions
prohibiting the payment of common stock dividends or purchases by SpectraSite of
common stock in the event dividends or sinking fund payments on the preferred
stock were in arrears. In the event of liquidation, the holders of preferred
stock of each series might be entitled to receive an amount specified for such
series by the board of directors before any payment could be made to the holders
of common stock.
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The authorization of new shares of preferred stock will not, by itself have
any effect on the rights of the holders of shares of common stock. Nonetheless,
the issuance of one or more series of preferred stock could affect the holders
of shares of the common stock in a number of respects, including the following:
- if voting rights are granted to any newly issued series of preferred
stock, the voting power of the common stock will be diluted;
- the issuance of preferred stock may result in a dilution of earnings per
share of the common stock;
- dividends payable on any newly issued series of preferred stock will
reduce the amount of funds available for payment of dividends on the
common stock;
- future amendments to the certificate of incorporation affecting the
preferred stock may require approval by the separate vote of the holders
of the preferred stock or in some cases the holders of shares of one or
more series of preferred stock (in addition to the approval of the
holders of shares of the common stock) before action can be taken by
SpectraSite; and
- make more difficult or discourage an attempt to obtain control of
SpectraSite by means of a merger, tender offer, proxy consent or
otherwise.
INTEGRATE AMENDMENTS TO
SPECTRASITE'S CERTIFICATE OF INCORPORATION
INTO A SINGLE INSTRUMENT
GENERAL
The board of directors has adopted a resolution unanimously approving the
restatement of SpectraSite's certificate of incorporation to integrate the
amendment described above, as well as previous amendments to the certificate of
incorporation, into a single instrument. Exhibit A attached to this information
statement contains the complete text of the second amended and restated
certificate of incorporation of SpectraSite.
REASONS FOR THE BOARD RECOMMENDATION
SpectraSite's existing amended and restated certificate of incorporation
was adopted in April 1999 and amended in connection with SpectraSite's
acquisition of Westower Corporation in a merger transaction in September 1999.
In addition, the certificate of incorporation includes several provisions that
are no longer necessary. The existing certificate of incorporation contains
provisions relating to the rights and preferences of three separate series of
preferred stock. All three series are no longer outstanding because such
preferred stock was automatically converted into common stock in connection with
our public offering of common stock in February 2000. As a result, the board of
directors believes that it is advisable to restate SpectraSite's certificate of
incorporation to integrate the amendment described in Item 1, as well as the
previous amendments, into a single instrument and remove obsolete provisions
from the certificate of incorporation.
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VOTE REQUIRED
SpectraSite has one class of outstanding voting securities, its common
stock, $.001 par value per share. SpectraSite has two classes of authorized
common stock which are identical in all respects, except that one class is
non-voting. If a stockholder is deemed a regulated entity under the Bank Holding
Company Act of 1956, as amended, its shares of common stock over 5% of the total
issued and outstanding common stock will become non-voting until transferred to
a non-regulated entity. A portion of the shares held by affiliates of Canadian
Imperial Bank of Commerce are non-voting while owned by such affiliates.
The vote which was required to approve the amendment and the restatement to
SpectraSite's certificate of incorporation was the affirmative vote of the
holders of a majority of SpectraSite's voting capital stock. Each holder of our
common stock is entitled to one (1) vote for each share held. As of November 20,
2000, we had issued and outstanding 142,270,990 shares of common stock for the
purpose of determining stockholders entitled to receive this information
statement.
VOTE OBTAINED -- SECTION 228 OF THE DELAWARE GENERAL CORPORATION LAW
Section 228 of the Delaware General Corporation Law and Article II, Section
12 of SpectraSite's bylaws provide that the written consent of the holders of
the outstanding shares of voting capital stock having not less than the minimum
number of votes which would be necessary to authorize or take an action at a
meeting at which all shares entitled to vote thereon were present and voted may
be substituted for such a meeting. Pursuant to Section 242 and 245 of the
Delaware General Corporation Law, a majority of the outstanding shares of voting
capital stock entitled to vote thereon is required in order to amend and restate
the certificate of incorporation. In order to eliminate the costs and management
time commitment involved in holding a special meeting and in order to effect the
amendment and the restatement of the certificate of incorporation as early as
possible, the board of directors voted to utilize, and did in fact obtain, the
written consent of the holders of a majority in interest of our voting capital
stock. The holders of approximately 79.9 million shares of common stock have
executed written consents approving the amendment and restatement of the
certificate of incorporation. These holders represent approximately 54.1% of the
total issued and outstanding shares of common stock entitled to vote on the
amendment and the restatement. No other series of voting capital stock was
entitled to vote. Accordingly, our stockholders will not be asked to take action
on this amendment and the restatement of the certificate of incorporation at any
future stockholders' meeting.
Pursuant to Section 228 of the Delaware General Corporation Law, we are
required to provide prompt notice of the taking of any corporate action, which
is otherwise required to be submitted to a vote of the stockholders, without a
stockholders' meeting to those stockholders of record who have not consented in
writing to such action. This information statement is intended to provide such
notice.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The table below sets forth, as of September 30, 2000, information with
respect to the beneficial ownership of SpectraSite's common stock by:
- each person who is known to be the beneficial owner of more than 5% of
any class or series of capital stock;
- each of the directors and named executive officers individually; and
- all directors and executive officers as a group.
The amounts and percentages of common stock beneficially owned are reported
on the basis of regulations of the SEC governing the determination of beneficial
ownership of securities. Under the rules of the SEC, a person is deemed to be a
beneficial owner of a security if that person has or shares voting power, which
includes the power to vote or to direct the voting of such security, or
investment power, which includes the power to dispose of or to direct the
disposition of such security. A person is also deemed to be a beneficial owner
of any securities of which that person has a right to acquire beneficial
ownership within 60 days. Under these rules, more than one person may be deemed
to be a beneficial owner of securities as to which such person has an economic
interest.
NUMBER OF
SHARES PERCENTAGE OF
BENEFICIALLY TOTAL VOTING
NAME OF BENEFICIAL OWNER OWNED POWER
------------------------ ------------ -------------
Stephen H. Clark(a)......................................... 1,720,685 1.2%
Timothy G. Biltz(b)......................................... 80,000 *
David P. Tomick(c).......................................... 313,750 *
Richard J. Byrne............................................ 50,000 *
Terry L. Armant(d).......................................... 67,500 *
Calvin J. Payne(e).......................................... 2,091,454 1.5%
Michael R. Stone(f)......................................... 12,676,837 9.2%
James R. Matthews(g)........................................ 30,825,000 22.3%
Lawrence B. Sorrel(g)....................................... 30,875,000 22.4%
Thomas E. McInerney(g)...................................... 31,087,973 22.5%
Michael J. Price(i)......................................... 200,000 *
Rudolph E. Rupert(g)........................................ 30,850,000 22.3%
Timothy M. Donahue(j)....................................... 14,025,000 10.2%
Steven M. Shindler(j)....................................... 14,000,000 10.1%
Nextel Communications, Inc.(j).............................. 14,000,000 10.1%
Welsh, Carson, Anderson & Stowe(g).......................... 30,825,000 22.3%
Funds affiliated with Whitney & Co.(f)...................... 12,676,837 9.2%
Canadian Imperial Bank of Commerce(h)....................... 10,000,000 7.2%
All directors and executive officers as a group (22
persons)(k)............................................... 72,963,699 52.6%
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* Less than 1%.
(a) Includes 185,542 shares of common stock issuable upon the exercise of
outstanding options exercisable within 60 days. Of the shares reported in
the table, 816,327 are held by Holt Road, L.P. Mr. Clark owns a 1% general
partnership interest, certain family trusts own a 98% limited partnership
interest and Mary Clark, Mr. Clark's spouse, owns a 1% limited partnership
interest in Holt Road, L.P. Mr. Clark disclaims beneficial ownership of the
shares held by Holt Road, L.P., as well as those deemed to be beneficially
owned by the family trusts.
(b) Includes 60,000 shares of common stock issuable upon the exercise of
outstanding options exercisable within 60 days.
(c) Includes 101,250 shares of common stock issuable upon the exercise of
outstanding options exercisable within 60 days.
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(d) Includes 67,500 shares of common stock issuable upon the exercise of
outstanding options exercisable within 60 days.
(e) Includes 177,380 shares of common stock issuable upon the exercise of
outstanding options exercisable within 60 days.
(f) Represents 4,923,524 shares held by Whitney Equity Partners, L.P.;
7,265,734 shares held by J.H. Whitney III, L.P.; 175,079 shares held by
Whitney Strategic Partners III, L.P.; and 312,500 shares held by J.H.
Whitney Mezzanine Fund, L.P. Each of these funds is affiliated with Whitney
& Co. Mr. Stone disclaims beneficial ownership of shares held by these
entities except to the extent of his pecuniary interest in such funds. The
business address for Mr. Stone and the Whitney funds is 177 Broad Street,
Stamford, Connecticut 06901.
(g) Messrs. Matthews, Sorrel, McInerney and Rupert are each principals of
Welsh, Carson, Anderson & Stowe, and Messrs. Sorrel, McInerney and Rupert
acquired directly 50,000, 262,973 and 25,000 shares, respectively. Messrs.
Matthews, Sorrel, McInerney and Rupert each disclaim beneficial ownership
of the shares held by Welsh, Carson. The business address for Messrs.
Matthews, Sorrel, McInerney and Rupert and Welsh, Carson is 320 Park
Avenue, Suite 2500, New York, New York 10022.
(h) Andrew R. Heyer, Jay R. Bloom and Dean C. Kehler, who are employees of an
affiliate of Canadian Imperial Bank of Commerce, have shared power to vote
and dispose of the common stock reported in the table. The business address
for Canadian Imperial Bank of Commerce is 161 Bay Street, PO Box 500, M5J
2S8, Toronto, Canada, and the business address for Mr. Heyer is 425
Lexington Avenue, 3rd Floor, New York, New York 10017. Pursuant to
SpectraSite's amended and restated certificate of incorporation, the shares
of common stock beneficially owned by Canadian Imperial Bank of Commerce in
excess of 5% of the total issued and outstanding common stock shall be
non-voting until such shares are transferred to an entity not subject to
the restrictions of the Bank Holding Company Act of 1956, as amended.
(i) Includes 100,000 shares of common stock reported as beneficially owned by
Mr. Price, which are held by The Price Family Limited Partnership. Mr.
Price disclaims beneficial ownership of all such shares.
(j) Messrs. Donahue and Shindler are executive officers of Nextel and disclaim
beneficial ownership of the shares held by Nextel. Mr. Donahue owns 25,000
shares directly, and Mr. Shindler owns no shares directly. The business
address for Messrs. Donahue and Shindler and Nextel is 2001 Edmund Halley
Drive, Reston, Virginia 20191.
(k) Includes 648,672 shares of common stock issuable upon the exercise of
outstanding options exercisable within 60 days.
By Order of the Board of Directors
/s/ JOHN H. LYNCH
--------------------------------------
John H. Lynch
Secretary
Cary, North Carolina
November 29, 2000
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EXHIBIT A
FORM OF
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SPECTRASITE HOLDINGS, INC.
SPECTRASITE HOLDINGS, INC., a corporation organized and existing under the
laws of the State of Delaware (the "CORPORATION"), hereby certifies as follows:
FIRST: The name of the Corporation is SPECTRASITE HOLDINGS, INC. The
Corporation was originally incorporated under the name "INTEGRATED SITE
DEVELOPMENT, INC." and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of Delaware on April 25, 1997.
SECOND: This SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
restates and integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation as heretofore amended and was duly adopted by
the vote of the holders of a majority of the outstanding shares entitled to vote
thereon at a special meeting of the stockholders of the Corporation on November
16, 2000, after first having been declared advisable by the Board of Directors
of the Corporation, all in accordance with the provisions of Sections 242 and
245 of the Delaware General Corporation Law.
THIRD: The amendments to the Certificate of Incorporation of the
Corporation effected by this Certificate are as follows:
to change the authorized capital stock of the Corporation from (i) Three
Hundred Million Seventy Seven Hundred Forty-Nine Six Hundred Twenty-Five
(370,749,625) shares, divided into (x) Three Hundred Million (300,000,000)
shares of Common Stock, $0.001 par value per share, and (y) Seventy Million
Seven Hundred Forty-Nine Thousand Six Hundred Twenty-Five (70,749,625)
shares of Preferred Stock, $0.001 par value per share, consisting of Three
Million Four Hundred Sixty-Two Thousand Eight Hundred Thirty (3,462,830)
shares of Series A Convertible Preferred Stock, Seven Million (7,000,000)
shares of Series B Convertible Preferred Stock and Sixty Million Two
Hundred Eighty-Six Thousand Seven Hundred Ninety-Five (60,286,795) shares
of Series C Convertible Preferred Stock, to (ii) Three Hundred Forty
Million (340,000,000) shares, divided into (x) Three Hundred Million
(300,000,000) shares of Common Stock, $0.001 par value per share, and (y)
Forty Million (40,000,000) shares of Preferred Stock, $0.001 par value per
share, the rights and designations of which may be determined as provided
in a resolution or resolutions adopted by the Corporation's Board of
Directors at any time and from time to time;
FOURTH: The capital of the Corporation will not be reduced under, or by
reason of, the foregoing amendment and restatement of the Certificate of
Incorporation of the Corporation.
FIFTH: The text of the Amended and Restated Certificate of Incorporation
of the Corporation, as heretofore amended, is hereby restated and further
amended to read in its entirety as follows:
"1. NAME.
The name of the corporation is SPECTRASITE HOLDINGS, INC. (the
"CORPORATION").
2. REGISTERED OFFICE AND AGENT.
The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The registered agent in charge thereof is
The Corporation Trust Company.
3. PURPOSE.
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
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4. AUTHORIZED SHARES.
The total number of shares of capital stock which the Corporation
shall have authority to issue is Three Hundred Forth Million (340,000,000)
shares, divided into Three Hundred Million (300,000,000) shares of Common
Stock, $0.001 par value per share ("COMMON STOCK"), and Forty Million
(40,000,000) shares of Preferred Stock, $0.001 par value per share (the
"PREFERRED STOCK"), the rights and designations of such Preferred Stock to
be determined as provided in a resolution or resolutions adopted by the
Corporation's Board of Directors at any time and from time to time.
4.1 General.
Every reference in this Amended and Restated Certificate of
Incorporation to a majority or other portion of shares of stock shall
refer to such majority or other portion of the votes of such shares of
stock.
The designations and the powers, preferences and rights of the
capital stock of the Corporation and the qualifications, limitations and
restrictions thereof shall be as set forth in Sections 4.2, 4.3 and 4.4
below.
4.2 Preferred Stock.
The shares of Preferred Stock may be issued from time to time in
one or more series of any number of shares, provided that the aggregate
number of shares issued and not cancelled of any and all such series
shall not exceed the total number of shares of Preferred Stock
hereinabove authorized, and with distinctive serial designations, all as
shall hereafter be stated and expressed in the resolution or resolutions
providing for the issue of such shares of Preferred Stock from time to
time adopted by the Board pursuant to authority so to do which is hereby
vested in the Board. Each series of shares of Preferred Stock: (a) may
have such voting powers, full or limited, or may be without voting
powers; (b) may be subject to redemption at such time or times and at
such prices; (c) may be entitled to receive dividends (which may be
cumulative or non-cumulative) at such rate or rates, on such conditions
and at such times, and payable in preference to, or in such relation to,
the dividends payable on any other class or classes or series of stock;
(d) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; (e) may be made
convertible into or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or classes
of shares of the Corporation at such price or prices or at such rates of
exchange and with such adjustments; (f) may be entitled to the benefit
of a sinking fund to be applied to the purchase or redemption of shares
of such series in such amount or amounts; (g) may be entitled to the
benefit of conditions and restriction upon the creation of indebtedness
of the Corporation or any subsidiary, upon the issue of any additional
shares (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other
distributions on, and the purchase, redemption or other acquisition by
the Corporation or any subsidiary of, any outstanding shares of the
Corporation; and (h) may have such other relative, participating,
optional or other special rights, qualifications, privileges,
preferences, limitations or restrictions thereof; all as shall be stated
in said resolution or resolutions providing for the issue of such shares
of Preferred Stock.
Any of the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any such series of
Preferred Stock may be made dependent upon facts ascertainable outside
of the resolution or resolutions providing for the issue of such
Preferred Stock adopted by the Board pursuant to the authority vested in
it by this Section 4.2, provided that the manner in which such facts
shall operate upon the voting powers, designations, preferences, rights
and qualifications, limitations or restrictions of such series of
Preferred Stock is clearly and expressly set forth in the resolution or
resolutions providing for the issue of such Preferred Stock. The term
"facts" as used in the next preceding sentence shall have the meaning
given to it in Section 151(a) of the Delaware General Corporation Law.
Shares of Preferred Stock of any series that have been redeemed
(whether through the operation of a sinking fund or otherwise) or that
if convertible or exchangeable, have been converted
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into or exchanged for shares of any other class or classes shall have
the status of authorized and unissued shares of Preferred Stock of the
same series and may be reissued as a part of the series of which they
were originally a part or may be reclassified and reissued as part of a
new series of shares of Preferred Stock to be created by resolution or
resolutions of the Board or as part of any other series of shares of
Preferred Stock, all subject to the conditions or restrictions on
issuance set forth in the resolution or resolutions adopted by the Board
providing for the issue of any series of shares of Preferred Stock.
4.3 Common Stock.
Except as otherwise required by law or as otherwise provided
herein, each share of Common Stock shall have identical powers,
preferences, qualifications, limitations and other rights.
A. Voting Rights. Each holder of Common Stock (except as provided
below in this paragraph A) shall be entitled to one vote for each share
of Common Stock held of record on all matters on which stockholders
generally are entitled to vote and to all other rights, powers and
privileges of stockholders under Delaware law. The shares of Common
Stock shall be divided into two classes, which shall be identical in all
respects except that one class shall be non-voting. Any shares of Common
Stock held by any person subject to the provisions of the Bank Holding
Company Act of 1956, as amended (the "BHC ACT") (such person is referred
to herein as a "REGULATED ENTITY"), in excess of 5% of the total issued
and outstanding Common Stock shall be non-voting, until such shares are
transferred to an entity not subject to such restrictions under the BHC
Act. Such shares of non-voting Common Stock shall not be included in
determining whether the requisite percentage of shares has consented to,
approved, adopted or taken any action and shall in all other respects be
equivalent to all other outstanding shares of Common Stock; provided
that such shares shall not be non-voting on matters that significantly
and adversely affect the rights or preferences of the Common Stock as
determined by such Regulated Entity.
B. Dividends. Subject to all of the rights of any class of stock
ranking senior to the Common Stock as to dividends, dividends may be
paid upon the Common Stock when, as and if declared by the Board out of
funds and other assets legally available for the payment of dividends.
C. Liquidation, Dissolution or Winding Up. Upon the dissolution,
liquidation or winding up of the Corporation, after any preferential
amounts to be distributed to the holders of the Preferred Stock and any
other class or series of stock having a preference over the Common Stock
then outstanding have been paid or declared and funds sufficient for the
payment thereof in full set apart for payment, the holders of the Common
Stock shall be entitled to participate ratably with all other
stockholders entitled to participate therein in all the remaining assets
of the Corporation available for distribution to its stockholders.
D. Transfers Under BHC Act. Notwithstanding any other provision
contained in this Amended and Restated Certificate of Incorporation, if
a holder and its affiliates (as defined in the BHC Act, "AFFILIATES"),
on an aggregate basis, of any Common Stock is a Regulated Entity, such
holder may transfer such Common Stock only under the following
circumstances: (i) to the Corporation; (ii) to the public in a public
offering; (iii) in a disposition pursuant to Rule 144 or Rule 144A under
the Securities Act of 1933, as amended, where no single purchaser
receives from such holder and its Affiliates convertible securities or
warrants covering more than 2% of any class of the Corporation's voting
securities; (iv) in a single transaction to an independent third party
that already owns or has negotiated to purchase at least a majority of
the Common Stock or Preferred Stock (without regard to the transfer of
such Common Stock by such Regulated Entity); (v) in a transfer to an
affiliate of such Regulated Entity or to another Regulated Entity; or
(vi) in any method of transfer permitted by the Federal Reserve, as
determined by the Regulated Entity. If any Regulated Entity provides
notice to the Corporation that such Regulated Entity has determined in
its sole discretion that applicable U.S. federal banking laws no longer
require that the Common Stock held by such Regulated Entity be subject
to all or any part of the preceding sentence, upon
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receipt of such notice by the Corporation, the Common Stock held by such
Regulated Entity shall no longer be subject to those provisions of the
two preceding sentence identified in such notice.
4.4 Limitations on Preemptive Rights.
Except as otherwise expressly authorized by the Board in writing,
no holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive rights to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, but
any such unissued stock, additional authorized issue of shares of any
class or series of stock or securities convertible into or exchangeable
for stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board (subject to any such
express written authorization of the Board) to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board in the exercise of
its sole discretion.
5. AMENDMENTS TO THE BYLAWS OF THE CORPORATION.
The Board of Directors of the Corporation shall have the power to
adopt, amend or repeal the Bylaws of the Corporation.
6. BOARD OF DIRECTORS.
6.1 Number of Directors.
The number of directors of the Corporation may be fixed by the
Bylaws.
6.2 Elections of Directors.
Elections of directors may be, but shall not be required to be, by
written ballot.
6.3 Limitation of Director Liability.
No director of the Corporation shall have personal liability
arising out of an action whether by or in the right of the Corporation
or otherwise for monetary damages for breach of fiduciary duty as a
director; provided, however, that the foregoing shall not limit or
eliminate the liability of a director (i) for any breach of such
director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law of Delaware or any successor provision, (iv) for
any transaction from which such director derived an improper personal
benefit, or (v) acts or omissions occurring prior to the date of the
effectiveness of this provision.
Furthermore, notwithstanding the foregoing provision, in the event
that the General Corporation Law of Delaware is amended or enacted to
permit further limitation or elimination of the personal liability of
the director, the personal liability of the Corporation's directors
shall be limited or eliminated to the fullest extent permitted by the
applicable law.
This provision shall not affect any provision permitted under the
General Corporation Law of Delaware in the Amended and Restated
Certificate of Incorporation, By-laws or contract or resolution of the
Corporation indemnifying or agreeing to indemnify a director against
personal liability. Any repeal or modification of this provision shall
not adversely affect any limitation hereunder on the personal liability
of the director with respect to acts or omissions occurring prior to
such repeal or modification."
SIXTH: The amendments and restatement effected herein were authorized by
the written consent of the holders of a majority of the outstanding shares
entitled to vote thereon pursuant to Sections 228, 242 and 245 of the Delaware
General Corporation Law.
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