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EXHIBIT 3a.3
ARTICLES OF INCORPORATION
OF
U S WEST, INC.
FILED WITH THE COLORADO SECRETARY OF STATE
ON
SEPTEMBER 22, 1983
As Last Amended on September 1, 1994
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[STATE SEAL]
STATE OF COLORADO
DEPARTMENT OF
STATE
CERTIFICATE
I, NATALIE MEYER, Secretary of State of the State of Colorado hereby
certify that ACCORDING TO THE RECORDS OF THIS OFFICE, ARTICLES OF AMENDMENT
WERE FILED ON SEPTEMBER 1, 1994 DESIGNATING SERIES OF STOCK FOR
U S WEST, INC.
(COLORADO CORPORATION)
Dated: SEPTEMBER 1, 1994
/s/ NATALIE MEYER
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SECRETARY OF STATE
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CERTIFICATE OF DESIGNATIONS
OF
SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
$1.00 Par Value
of
US WEST, Inc.
Pursuant to Section 7-106-102 of the Business Corporation
Act of the State of Colorado
We, James T. Anderson, Vice President and Treasurer, and Stephen E.
Brilz, Assistant Secretary, of U S WEST, Inc. (the "Corporation"), a
corporation organized and existing under the Business Corporation Act of the
State of Colorado, in accordance with the provisions of Section 7-106-102
thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Articles of Incorporation of the Corporation, the Board of Directors on
May 6, 1994, adopted the following resolutions creating a series of fifty
thousand (50,000) shares of Preferred Stock, par value $1.00 per share,
designated as Series B Cumulative Redeemable Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Articles of Incorporation, a series of Preferred Stock of the Corporation be,
and it hereby is, created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof, are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as Series B Cumulative Redeemable Preferred Stock, par value
$1.00 per share (the "Series B Preferred Stock"), and the number of shares
constituting such series shall be fifty thousand (50,000).
Section 2. DIVIDENDS.
(a) The holders of shares of the Series B Preferred Stock shall be
entitled to receive, when, as and if declared by the
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Board of Directors out of funds of the Corporation legally available thereof,
cumulative cash dividends on the shares of the Series B Preferred Stock at the
rate of $70.00 per annum per share, and no more, payable in equal quarterly
installments on the first business day of November, February, May and August,
in each year, commencing on the first business day of November, 1994. Such
dividends shall accrue and be cumulative from the date of original issue of
each share of the Series B Preferred Stock, whether or not declared and
whether or not there shall be funds legally available for the payment thereof.
Each such dividend shall be paid to the holders of record of the shares of
the Series B Preferred Stock as they appear on the share register of the
Corporation on such record date, not more than 30 days nor less than 10 days
preceding the dividend payment date thereof, as shall be fixed by the Board of
Directors or a duly authorized committee thereof. Dividends in arrears may be
declared and paid at any time without reference to any regular dividend
payment date.
(b) If dividends are not paid in full, or declared in full and sums
set apart for the full payment thereof, upon the shares of the Series B
Preferred Stock and shares of any other preferred stock ranking on a parity as
to dividends with the Series B Preferred Stock, all dividends declared upon
shares of the Series B Preferred Stock and of any other preferred stock
ranking on a parity as to dividends with the Series B Preferred Stock shall be
paid or declared pro rata so that in all cases the amount of dividends paid or
declared per share on the Series B Preferred Stock and on such other shares of
preferred stock shall bear to each other the same ratio that accumulated
dividends per share, including dividends accrued or dividends in arrears, if
any, on the shares of the Series B Preferred Stock and such other shares of
preferred stock bear to each other. Except as provided in the preceding
sentence, unless full cumulative dividends on the shares of the Series B
Preferred Stock have been paid or declared in full and sums set aside
exclusively for the payment thereof, (i) no dividends (other than dividends in
shares of the Common Stock (as hereinafter defined) or in shares of any other
capital stock of the Corporation ranking junior to the Series B Preferred
Stock as to dividends) shall be paid or declared or set aside for payment or
other distribution made upon the Corporation's Common Stock, no par value per
share (the "Common Stock"), or any other capital stock of the Corporation
ranking junior to or on a parity with the Series B Preferred Stock as to
dividends, (ii) nor shall
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any shares of the Common Stock or shares of any other capital stock of the
Corporation ranking junior to or on a parity with the Series B Preferred Stock
as to dividends, or any warrants, rights, calls or options exercisable for or
convertible into Common Stock or any such capital stock, be redeemed,
purchased or otherwise acquired for any consideration (or any payment made to
or available for a sinking fund or any similar fund for the redemption of any
such shares) by the Corporation or any, direct or indirect, subsidiary of the
Corporation (except in the case of clause (ii) by conversion into or exchange
for shares of capital stock of the Corporation ranking junior to the Series B
Preferred Stock as to dividends, or any warrants, rights, calls or options
exercisable for or convertible into Common Stock or any such capital stock).
Holders of shares of the Series B Preferred Stock shall not be entitled to any
dividends, whether payable in cash, property or shares of capital stock, in
excess of full accrued and cumulative dividends as herein provided. No
interest or sum of money in lieu of interest shall be payable in respect of
any dividend payment or payments on the shares of the Series B Preferred Stock
that may be in arrears.
The terms "accrued dividends", "dividends accrued" and "dividends in
arrears", whenever used herein with reference to shares of preferred stock
shall be deemed to mean an amount that shall be equal to dividends thereon at
the annual dividend rates per share for the respective series from the date or
dates on which such dividends commence to accrue to the end of the then
current quarterly dividend period for such preferred stock (or, in the case of
redemption, to the date of redemption), less the amount of all dividends paid,
or declared in full and sums set aside for the payment thereof, upon such
shares of preferred stock.
(c) Dividends payable on the shares of the Series B Preferred Stock
for any period less than a full quarterly dividend period shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual number of
days elapsed in the period for which payable.
Section 3. REDEMPTION; LIMITATIONS ON TRANSFER.
(a) MANDATORY REDEMPTION. On September 2, 2004, to the extent (i)
the Corporation shall have funds legally available therefor and (ii) the
Corporation shall not have been rendered
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insolvent pursuant to the U.S. Bankruptcy Code, the Corporation shall redeem
all remaining outstanding shares of Series B Preferred Stock, at a redemption
price of $1,000.00 per share, together with accrued and unpaid dividends
thereon to the redemption date, in cash without interest. If, for any reason,
the Corporation shall fail to discharge its mandatory redemption obligations
pursuant to this section 3(a), such mandatory redemption obligations shall be
discharged as soon as the Corporation is able to discharge such obligations.
If and so long as any mandatory redemption obligations with respect to the
shares of Series B Preferred Stock shall not be fully discharged, (i) no
dividends (other than dividends in shares of the Common Stock) shall be paid
or declared or set aside for payment or other distribution made upon the
Common Stock or any other capital stock of the Corporation ranking junior to
or on a parity with the Series B Preferred Stock as to dividends, or any
warrants, rights, calls or options exercisable for or convertible into Common
Stock or any such capital stock, (ii) nor shall any shares of the Common Stock
or shares of any other capital stock of the Corporation ranking junior to or
on a parity with the Series B Preferred Stock as to dividends, or any
warrants, rights, calls or options exercisable for or convertible into Common
Stock or any such capital stock, be redeemed, purchased or otherwise acquired
for any consideration (or any payment made to or available for a sinking or
other similar fund for the redemption of any such shares) by the Corporation
or any direct or indirect subsidiary of the Corporation (except, in the case
of clause (ii), by conversion into or exchange for shares of capital stock of
the Corporation ranking junior to the Series B Preferred Stock as to
dividends).
(b) LIMITATIONS ON TRANSFER AND RELATED OPTIONAL REDEMPTION. The
shares of Series B Preferred Stock may not be sold, assigned, pledged,
hypothecated or otherwise transferred by Fund American Enterprise Holdings,
Inc. ("FFC"); provided, however, that FFC may transfer shares of the Series B
Preferred Stock to any majority-owned subsidiary of FFC which subsidiary
shall be subject to the same restrictions on transfer as FFC; provided,
further, that such subsidiary may hold shares of Preferred Stock only so long
as such subsidiary remains a majority-owned subsidiary of FFC. Any such
transfer in contravention of this provision (including the shares of Series B
Preferred Stock held by a person which is no longer a majority- owned
subsidiary of FFC) shall be void ab initio. If the holder
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attempts to transfer any shares of Series B Preferred Stock in contravention
of this provision, the Corporation may, at its option, call for redemption, in
accordance with Section 3(d) hereof, if applicable, and Section 3(e) hereof
all shares of Series B Preferred Stock which were proposed to be transferred,
sold, hypothecated or assigned by the holder thereof at a redemption price of
$1,000 per share plus all dividends accrued and unpaid on the shares up to the
date fixed for redemption.
(c) OPTIONAL REDEMPTION BEGINNING SEPTEMBER 2, 1999. (i) Subject to
Section 3(c)(ii) below, the shares of the Series B Preferred Stock shall be
redeemable at the option of the Corporation, in whole or from time to time in
part, at any time on or after September 2, 1999, subject to the limitations
set forth below, at the following redemption prices per share plus, in each
case, all dividends accrued and unpaid on the shares of the Series B Preferred
Stock up to the date fixed for redemption, upon giving notice as provided in
Section 3(e) below:
If redeemed during the
twelve-month period
beginning September 2, Price
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1999.......................................... $1,035.00
2000.......................................... $1,028.00
2001.......................................... $1,021.00
2002.......................................... $1,014.00
2003.......................................... $1,007.00
The excess amount of the price per share over $1,000 (other
than accrued but unpaid dividends) is referred to herein as the "Redemption
Premium".
(ii) From and after the time of any exercise of any Ten-Year
Options (as hereinafter defined), upon giving notice as provided in Section
3(e) below, the Corporation shall have the right to redeem, without the
payment of the Redemption Premium thereon, a number of shares of Series B
Preferred Stock equal to 50,000 multiplied by a fraction the numerator of
which shall be the number of Ten-Year Options so exercised at such time and
the denominator of which shall be the aggregate number of Ten-Year Options
initially issued. The number of shares of Series B Preferred Stock which may
be redeemed without the applicable Redemption Premium shall be cumulative with
each such exercise of
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the Ten-Year Options but shall be reduced upon any redemption of Series B
Preferred Stock without the payment of the Redemption Premium by the number of
shares so redeemed. The adjustment to the Redemption Premium in this Section
3(c)(ii) shall take into account any Ten-Year Options exercised prior to the
time the shares of Series B Preferred Stock are redeemed on the Redemption
Date regardless of whether notice of the redemption of such shares was given
prior to the exercise of such Ten-Year Options. "Ten-Year Options" means the
1,893,940 Options initially issued by U S WEST Capital Corporation ("USWCC")
to FFC pursuant to the Securities Purchase Agreement dated April 10, 1994,
among FFC, the Corporation, USWCC and Financial Security Assurance Holdings
Ltd. and referred to in such agreement as the "Ten-Year Options".
(d) SPECIAL PROCEDURE FOR PARTIAL REDEMPTION. If less than all of
the outstanding shares of the Series B Preferred Stock are to be redeemed, the
shares to be redeemed shall be determined pro rata.
(e) GENERAL PROCEDURES FOR REDEMPTION. At least 30 days but not more
than 60 days prior to the date fixed for the redemption of shares of the
Series B Preferred Stock, a written notice shall be given to each holder of
record of shares of the Series B Preferred Stock to be redeemed by certified
or registered mail in a postage prepaid envelope or by a nationally
recognized overnight courier (appropriately marked for overnight delivery)
addressed to such holder at its post office address as shown on the records of
the Corporation (and shall be deemed given only upon the earlier of (i) the
date when received by the holder of (ii) three days after the Corporation has
sent such notice), notifying such holder of the election of the Corporation
to redeem such shares, stating the date fixed for redemption thereof (the
"Redemption Date"), that the shares shall be deemed to be redeemed at 5:00
p.m., New York time, on such date and the redemption price (including a
calculation of all accrued dividends up to and including the Redemption Date,
but subject to reduction as a result of any exercises of the Ten-Year
Options), and calling upon such holder to surrender to the Corporation on the
Redemption Date at the place designated in such notice its certificate or
certificates representing the number of shares specified in such notice of
redemption. Each notice of redemption shall be irrevocable. On or after the
Redemption Date, upon surrender by each holder of its certificate or
certificates for shares of the Series B Preferred Stock to be
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redeemed at the place designated in such notice, the redemption price of such
shares (together with all accrued and unpaid dividends thereon up to and
including the Redemption Date) shall be paid in immediately available funds to
or on the order of the person whose name appears on such certificate or
certificates as the owner thereof and each surrendered certificate shall be
cancelled. In case less than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares, without cost to the holder thereof. From and after the
Redemption Date (unless notice of redemption is not received by each holder of
shares as aforesaid, or default shall be made by the Corporation in payment of
the redemption price or accrued and unpaid dividends up to and including the
Redemption Date), all dividends on the shares of the Series B Preferred Stock
designated for redemption in such notice shall cease to accrue, and all rights
of the holders thereof as shareholders of the Corporation, except the right to
receive the redemption price of such shares (including all accrued and unpaid
dividends up to the Redemption Date) upon the surrender of certificates
representing the same, shall cease and terminate, and such shares shall not be
deemed to be outstanding for any purpose whatsoever. At its election, if
notice of redemption is received by each holder of shares as aforesaid, the
Corporation prior to the Redemption Date may deposit the redemption price
(including all accrued and unpaid dividends up to the Redemption Date) of
shares of the Series B Preferred Stock so called for redemption in trust for
the account of holders thereof with a bank or trust company (having a capital
surplus and undivided profits aggregating not less than $100,000,000) in the
Borough of Manhattan, City and State of New York, or the City of Denver, State
of Colorado, in which case the aforesaid notice to holders of shares of the
Series B Preferred Stock to be redeemed shall state the date of such deposit,
shall specify the office of such bank or trust company as the place of payment
of the redemption price, and shall call upon such holders to surrender the
certificates representing such shares at such place on or after the date fixed
in such redemption notice (which shall not be later than the Redemption Date)
against payment of the redemption price (including all accrued and unpaid
dividends up to the Redemption Date). Any interest accrued on such funds
shall be paid to the Corporation from time to time. Any moneys so deposited
that shall remain unclaimed by the holders of such shares of the Series B
Preferred Stock at the end of two years after the Redemption Date shall be
returned by such bank or trust
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company to the Corporation, and thereafter the holder of any such shares shall
look to the Corporation for the payment of the redemption price (and any
accrued and unpaid dividends).
(f) SHARES REDEEMED OR REPURCHASED. Shares of the Series B Preferred
Stock redeemed, repurchased or retired by the Corporation pursuant to the
provisions of this Section 3, shall thereupon be retired and may not be
reissued as shares of the Series B Preferred Stock but shall thereafter have
the status of authorized but unissued shares of the Preferred Stock, without
designation as to series until such shares are once more designated as part of
a particular series of the Preferred Stock.
Section 4. VOTING RIGHTS.
Except as otherwise provided in Section 6 or as required by law, the
holders of shares of the Series B Preferred Stock shall not be entitled to
vote on any matter on which the holders of any voting securities of the
Corporation shall be entitled to vote.
Section 5. LIQUIDATION RIGHTS.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or otherwise, the holders of
shares of the Series B Preferred Stock shall be entitled to receive, in cash,
out of the assets of the Corporation available for distribution to
stockholders, the amount of One Thousand Dollars ($1,000.00) for each share of
the Series B Preferred Stock, plus an amount equal to all dividends accrued
and unpaid on each such share up to and including the date fixed for
distribution, before any distribution shall be made to the holders of shares
of the Common Stock or any other capital stock of the Corporation ranking (as
to any such distribution) junior to the Series B Preferred Stock. If upon
any liquidation, dissolution or winding up of the Corporation, the assets
distributable among the holders of shares of the Series B Preferred Stock and
all other classes and series of preferred stock ranking (as to any such
distribution) on a parity with the Series B Preferred Stock are insufficient
to permit the payment in full to the holders of all such shares of all
preferential mounts payable to all such holders, then the entire assets of the
Corporation thus distributable shall be distributed ratably among the holders
of the shares of the Series B Preferred Stock and such other classes and
series of preferred stock
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ranking (as to any such distribution) on a parity with the Series B Preferred
Stock in proportion to the respective amounts that would be payable per share
if such assets were sufficient to permit payment in full.
(b) For purposes of this Section 5, a distribution of assets in any
dissolution, winding up or liquidation shall not include (i) any consolidation
or merger of the Corporation with or into any other corporation, (ii) any
dissolution, liquidation, winding up or reorganization of the Corporation
immediately followed by reincorporation of another corporation or (iii) a
sale or other disposition of all or substantially all of the Corporation's
assets to another corporation; provided, however, that, in each case,
effective provision is made in the certificate of incorporation of the
resulting and surviving corporation or otherwise for the protection of the
rights of the holders of shares of the Series B Preferred Stock.
(c) After the payment of the full preferential amounts provided for
herein to the holders of shares of the Series B Preferred Stock or funds
necessary for such payment have been set aside in trust for the holders
thereof in the manner provided in Section 3(e), such holders shall be entitled
to no other or further participation in the distribution of the assets of the
Corporation.
Section 6. LIMITATIONS. In addition to any other rights provided by
applicable law, so long as any shares of the Series B Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote, or the
written consent as provided by law, of the holders of at least two-thirds
(2/3) of the outstanding shares of the Series B Preferred Stock, voting
separately, modify, amend or rescind the preferences, rights or powers with
respect to the Series B Preferred Stock so as to affect the Series B Preferred
Stock adversely; but (except as otherwise required by applicable law) nothing
herein contained shall require such a vote or consent (i) in connection with
any increase in the total number of authorized shares of the Common Stock, or
(ii) in connection with the authorization or increase of any class or series
of shares of preferred stock. The provisions of this Section 6 shall not in
any way limit the right and power of the Corporation to issue its currently
authorized but unissued shares or bonds, notes, mortgages, debentures, and
other obligations, and to incur indebtedness to banks and to
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other lenders.
Section 7. NO PREEMPTIVE RIGHTS. No holder of shares of the Series B
Preferred Stock shall possess any preemptive rights to subscribe for or
acquire any unissued shares of capital stock of the Corporation (whether now
or hereafter authorized) or securities of the Corporation convertible into or
carrying a right to subscribe to or acquire shares of capital stock of the
Corporation.
Section 8. RANK. Unless otherwise provided in the Articles of
Incorporation of the Corporation or a Certificate of Designations relating to
a subsequent series of preferred stock of the Corporation, the Series B
Preferred Stock shall rank on a parity with the Series A Preferred Stock of
the Corporation and junior to all other series of the Corporation's preferred
stock as to the payment of dividends and the distribution of assets on
liquidation, dissolution, or winding up, whether voluntary or involuntary, of
the Corporation and senior to the Common Stock of the Corporation as to the
foregoing.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under penalties of perjury the 1st day of
September, 1994.
/s/ James T. Anderson
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James T. Anderson
Vice President and Treasurer
Attest:
/s/ Stephen E. Brilz
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Stephen E. Brilz
Assistant Secretary