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EXHIBIT 3(i)(a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LCI INTERNATIONAL, INC.
LCI INTERNATIONAL, INC. (formerly, LCI Communications Holdings Co.),
a corporation organized and existing under, and by virtue of, the General
Corporation Law of the State of Delaware, was incorporated by the filing of an
original Certificate of Incorporation with the Office of the Secretary of State
of Delaware on August 16, 1988, which certificate was amended and restated by
the filing of an Amended and Restated Certificate of Incorporation on June 4,
1992 and further amended by the filing of a Certificate of Amendment of Amended
and Restated Certificate of Incorporation on January 25, 1993, by the filing of
an Amended and Restated Certificate of Incorporation on April 1, 1993, and by
the filing of an Amended and Restated Certificate of Incorporation on May 12,
1993, as further amended by a Certificate of Amendment of Amended and Restated
Certificate of Incorporation on May 11, 1994 (collectively, the "Amended
Certificate of Incorporation").
This Amended and Restated Certificate of Incorporation restates,
integrates and amends the Amended Certificate of Incorporation and was duly
adopted pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware.
ARTICLE I
The name of the corporation (the "Corporation") is LCI International,
Inc.
ARTICLE II
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle, Delaware 19801. The name of the registered agent at such
address is The Corporation Trust Company.
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ARTICLE III
The nature of the business or purposes to be conducted or promoted by
the Corporation 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.
ARTICLE IV
1. The total number of shares of stock which the Corporation shall
have authority to issue is 315,000,000 shares consisting of 300,000,000 shares
of Common Stock, par value $.01 per share ("Common Stock") and 15,000,000
shares of Preferred Stock, par value $.01 per share ("Preferred Stock").
2. The Preferred Stock may be issued from time to time as herein
provided in one or more series. The designations, relative rights, preferences
and limitations of the Preferred Stock, and particularly of the shares of each
series thereof, may, to the extent permitted by law, be similar to or differ
from those of any other series. The Board of Directors of the Corporation is
hereby expressly granted authority, subject to the provisions of this Article
IV, to fix from time to time before issuance thereof the number of shares in
each series and all designations, relative rights, preferences and limitations
of the shares in each such series, including, but without limiting the
generality of the foregoing, the following:
(a) the designation of the series and the number of shares to
constitute each series;
(b) the dividend rate on the shares of each series, any
conditions on which and times at which dividends are payable, whether dividends
shall be cumulative, and the preference or relation (if any) with respect to
such dividends (including possible preferences over dividends on the Common
Stock or any other class or classes);
(c) whether the series will be redeemable (at the option of the
Corporation or the holders of such shares or both, or upon the happening of a
specified event) and, if so, the redemption prices and the conditions and times
upon which redemption may take place and whether for cash, property or rights,
including securities of the Corporation or another corporation;
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(d) the terms and amount of any sinking, retirement or purchase
fund;
(e) the conversion or exchange rights (at the option of the
Corporation or the holders of such shares or both, or upon the happening of a
specified event), if any, including the conversion or exchange price and other
terms of conversion or exchange;
(f) the voting rights, if any (other than any voting rights
that the Preferred Stock may have as a matter of law);
(g) any restrictions on the issue or reissue or sale of
additional Preferred Stock;
(h) the rights of the holders upon voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation
(including preferences over the Common Stock or other class or classes or
series of stock);
(i) the preemptive rights, if any, to subscribe to additional
issues of stock or securities of the Corporation; and
(j) such other special rights and privileges, if any, for the
benefit of the holders of the Preferred Stock, as shall not be inconsistent
with provisions of this Amended and Restated Certificate of Incorporation.
All shares of Preferred Stock of the same series shall be identical
in all respects, except that shares of any one series issued at different times
may differ as to dates, if any, from which dividends thereon may accumulate.
All shares of Preferred Stock of all series shall be of equal rank and shall be
identical in all respects except that any series may differ from any other
series with respect to any one or more of the designations, relative rights,
preferences and limitations described or referred to in subparagraphs 2(a) to
2(j) inclusive above.
3. Except as otherwise may be required by law, and except as
otherwise may be provided in this Amended and Restated Certificate of
Incorporation or in the resolution of the Board of Directors of the Corporation
creating any series of Preferred Stock, the Common Stock shall have the
exclusive right to vote for
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the election of directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share thereof held.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors of the Corporation is expressly authorized
to make, alter, amend or repeal the by-laws of the Corporation.
ARTICLE VII
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
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ARTICLE VIII
1. The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of such
number of directors as is determined from time to time by resolution adopted by
affirmative vote of a majority of the entire Board of Directors; provided,
however, that in no event shall the number of directors be less than three.
The directors shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire Board of
Directors. At each annual meeting of stockholders, successors to the class of
directors whose term expires at that annual meeting shall be elected for a
three-year term. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional
director of any class elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with the remaining
term of that class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director shall hold office until
the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. A majority
of total directors shall constitute a quorum for the transaction of business.
Except as otherwise required by law, any vacancy on the Board of Directors that
results from an increase in the number of directors shall be filled only by a
majority of the Board of Directors then in office, provided that a quorum is
present, and any other vacancy occurring in the Board of Directors shall be
filled by a majority of the directors then in office, even if less than a
quorum, or by a sole remaining director. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall have
the same remaining term as that of his predecessor.
Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of stock issued by the Corporation shall have the right,
voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation applicable thereto, such directors
so elected shall not be divided into classes pursuant to this Article VIII,
Section 1 and the number of such
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directors shall not be counted in determining the maximum number of directors
permitted under the foregoing provision of this Article VIII, Section 1, in
each case unless expressly provided by such terms.
2. Any director elected by the stockholders or by the Board of
Directors to fill a vacancy may be removed only for cause by the affirmative
vote of the holders of a majority of all the issued and outstanding stock of
the Corporation entitled to vote generally in the election of directors, given
at a duly called annual or special meeting of stockholders. Any officer
appointed by the Board of Directors may be removed at any time in such manner
as shall be provided in the by-laws of the Corporation.
3. Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, this ARTICLE VIII shall not be
altered, amended or repealed, and no provision inconsistent with this Article
VIII shall be adopted without the affirmative vote of the holders of at least
66-2/3% of all the issued and outstanding stock of the Corporation entitled to
vote generally in the election of directors, voting as a single class.
ARTICLE IX
Elections of directors need not be by written ballot.
ARTICLE X
1. A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the
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 Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
any improper personal benefit. If the Delaware General Corporation Law is
amended after approval by the stockholders of this Article to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
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2. (a) Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding") (including an action by or in the
right of the Corporation), by reason of the fact that he is or was serving as a
director or officer of the Corporation (or is or was serving at the request of
the Corporation in a similar capacity with another entity, including employee
benefit plans), shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law. This
indemnification will cover all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
settlement amounts) reasonably incurred by the director or officer in
connection with a proceeding. All such indemnification shall continue as to a
director or officer who has ceased to be a director or officer and shall
continue to the benefit of such director's or officer's heirs, executors and
administrators. Except as provided in paragraph (b) hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such director or officer only if such proceeding was authorized
by the Board of Directors of the Corporation. The right to indemnification
conferred by this Section shall be a contract right and shall include the right
to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an "advancement of
expenses"). If the Delaware General Corporation Law requires, an advancement
of expenses incurred by a director in his capacity as a director or an officer
in his capacity as an officer shall be made only upon delivery to the
Corporation of an undertaking by such director or officer to repay all amounts
so advanced if it is ultimately determined by final judicial decision that such
director or officer is not entitled to be indemnified for such expenses under
this Section or otherwise (hereinafter an "undertaking").
(b) If a claim under paragraph (a) of this Section is not paid
in full by the Corporation within ninety days after receipt of a written claim,
the director or officer may bring suit against the Corporation to recover the
unpaid amount. (In the case of a claim for advancement of expenses, the
applicable period will be twenty days.) If successful in any such suit, the
director or officer will also be entitled to be paid the expense of prosecuting
such suit. In any suit brought by the director or officer to enforce a right
to indemnification hereunder (but not
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in a suit brought by the director or officer to enforce a right to an
advancement of expenses) it shall be a defense that the director or officer has
not met the applicable standard of conduct under the Delaware General
Corporation Law. In any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, it shall be entitled to
recover such expenses upon a final adjudication that the director or officer
has not met the applicable standard of conduct set forth in the Delaware
General Corporation Law. Neither the failure of the Board of Directors of the
Corporation to determine prior to the commencement of such suit that the
director or officer has met the applicable standard of conduct for
indemnification set forth in the Delaware General Corporation Law, nor an
actual determination by the Board of Directors of the Corporation that the
director or officer has not met such applicable standard of conduct, shall
create a presumption that the director or officer has not met the applicable
standard of conduct or, in the case of such a suit brought by the director or
officer, be a defense to such suit. In any suit brought by the director or
officer to enforce a right hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the director or officer is not entitled to be indemnified or to
such advancement of expenses under this Section or otherwise shall be on the
Corporation.
(c) The rights to indemnification and to the advancement of
expenses conferred in this Section will not be exclusive of any other right
which any person may have or hereafter acquire under any statute, this Amended
and Restated Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or other entity against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person under the Delaware
General Corporation Law.
(e) The Corporation may, if authorized by the Board of
Directors, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation to the same extent as for directors
and officers of the Corporation.
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IN WITNESS WHEREOF, LCI INTERNATIONAL, INC. has caused this Amended
and Restated Certificate of Incorporation to be signed by H. Brian Thompson,
its Chief Executive Officer, and attested to by Lee M. Weiner, its Assistant
Secretary, this 8th day of May, 1996.
LCI INTERNATIONAL, INC.
By: /s/ H. BRIAN THOMPSON
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Attest:
By: /s/ LEE M. WEINER
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