RESTATED ARTICLES OF INCORPORATION
OF
DTI HOLDINGS, INC.
DTI HOLDINGS, INC., a Missouri corporation (the "Corporation"), hereby
certifies to the Secretary of State of Missouri that the Corporation desires to
restate its Articles of Incorporation as currently in effect and the following
Restated Articles of Incorporation are all of the provisions of the Articles of
Incorporation of the Corporation as theretofore amended and that these Restated
Articles of Incorporation correctly set forth without change the corresponding
provisions of such Articles of Incorporation as theretofore amended. These
Restated Articles of Incorporation supersede the original Articles of
Incorporation and all amendments thereto.
These Restated Articles of Incorporation were duly approved by the
directors of the Corporation and adopted on behalf of the Corporation by written
consent in lieu of a meeting, dated April 8, 1998.
ARTICLE ONE
The name of the corporation (hereinafter referred to as the "Corporation")
is: DTI HOLDINGS, INC.
ARTICLE TWO
The address, including street and number, if any, or the corporation's
initial registered office in this state is 11111 Dorsett Road, St. Louis,
Missouri 63043 and the name of its initial agent at such address is Richard D.
Weinstein.
ARTICLE THREE
I. Authorization of Shares
The aggregate number of shares of capital stock which the Corporation has
authority to issue is 100,050,000 shares, consisting of:
A. 100,000,000 shares of common stock, par value $.01 per share (the
"Common Stock");
B. 50,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock").
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II. Preferred Stock
A. General. The Board of Directors of the Corporation is hereby authorized
to determine all rights, preferences and privileges and qualifications,
limitations and restrictions of the Preferred Stock (including, without
limitation, voting rights and the limitation and exclusion thereof) granted to
or imposed upon any unissued series of Preferred Stock and the number of shares
constituting any such series and the designation thereof, and to increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of shares of that
series then outstanding. Unless otherwise provided in a particular certificate
of designation relating to a series of Preferred Stock, in case the number of
shares of any series is so decreased, the shares constituting such reduction
shall resume the status which such shares had prior to the adoption of the
resolution originally fixing the number of shares of such series.
B. Series A Preferred Stock
1. Designation. Thirty Thousand (30,000) shares of the authorized and
unissued Preferred Stock of the Corporation shall be designated as "Series A
Preferred Stock" and shall have the following rights and limitations.
2. Dividends. Upon declaration of any dividend by the Board of Directors of
the Corporation on the Common Stock, the holder of each share of Series A
Preferred Stock shall be entitled to receive, out of any funds legally available
therefor, as adjusted appropriately for stock splits, stock dividends,
combinations or similar recapitalizations affecting the Series A Preferred
Stock, such dividends paid in cash or other assets as would be paid on each
share of Common Stock, or any other equity security, into which each share of
Series A Preferred Stock could be converted on the applicable record date. The
dividends shall be payable quarterly in arrears from the date on which a share
of the Series A Preferred Stock is first issued hereunder. The original dates of
issuance of the Series A preferred stock, par value $.01 per share, of Digital
Teleport, Inc. (the "DTI Series A Preferred Stock") to KLT Telecom Inc. ("KLT")
are herein referred to as the "Original Issue Dates".
3. Liquidation, Dissolution or Winding Up and Voting.
(a) Preference. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation (a "Liquidating
Event"), the holders of the then outstanding shares of Series A Preferred
Stock shall be entitled to be paid, prior and in preference to any
distribution of any of the assets or surplus funds of the Corporation to
the holders of the Common Stock of the Corporation by reason of their
ownership thereof, out of the assets of the Corporation available for
distribution to its shareholders, $1,500 per share of Series A Preferred
Stock, subject to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization
affecting the Series A Preferred Stock. If upon the occurrence of any
Liquidating Event the remaining assets of the Corporation available for
distribution to its shareholders shall be insufficient to pay the holders
of shares of Series A Preferred Stock the full amount to which they shall
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be entitled, the holders of shares of Series A Preferred Stock shall share
ratably in any distribution of the remaining assets and funds of the
Corporation in proportion to the respective amounts which would otherwise
be payable in respect of the shares held by them upon such distribution if
all amounts payable on or with respect to such shares were paid in full.
(b) Common Stock. If, after the payment of all preferential amounts
required by subsection 3(a) above to be paid to the holders of Series A
Preferred Stock upon the occurrence of any Liquidating Event, any assets
and funds of the Corporation are legally available for distribution, a
dividend shall be payable on each share of Common Stock then outstanding,
prior and in preference to any further distribution of any of the assets or
surplus funds of the Corporation to the holders of the Series A Preferred
Stock by reason of their ownership thereof in an amount equal to the per
share cash consideration received by the Corporation upon its issuance of
Common Stock to the initial holder of such shares (as adjusted for any
stock dividends, combinations or splits with respect to such shares).
Subject to the payment in full of the liquidation preferences with respect
to the Series A Preferred Stock as provided in subsection 3(a) above, if
upon the occurrence of such Liquidating Event, the assets and funds thus
distributed among the holders of the Common Stock shall be insufficient to
permit the payment to such holders of the full aforesaid preferential
amount, then the entire remaining assets and funds of the Corporation
legally available for distribution shall be distributed among the holders
of the Common Stock in proportion to the weighted value of shares of Common
Stock (as determined by the per share cash consideration received by the
Corporation upon issuance of the Common Stock to the original holder
thereof) then held by them.
(c) Participation. After payment to the holders of the Common Stock
and the Series A Preferred Stock of the amounts set forth in subsections
3(a) and (b) above, the entire remaining assets and funds of the
Corporation legally available for distribution, if any, shall be
distributed among the holders of the Common Stock and the Series A
Preferred Stock in proportion to the shares of Common Stock then held by
them and the shares of Common Stock which they then have the right to
acquire upon conversion of the shares of Series A Preferred Stock then held
by them.
(d) Voting. Each holder of outstanding shares of Series A Preferred
Stock shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series A Preferred Stock
held by such holder are convertible (as adjusted from time to time pursuant
to Section 4 of this Article Three.II.B), at each meeting of shareholders
of the Corporation (and written actions of shareholders in lieu of
meetings) with respect to any and all matters presented to the shareholders
of the Corporation for their action or consideration. Except for any
amendment affecting the rights and obligations of holders of Series A
Preferred Stock or as otherwise provided by law, holders of Series A
Preferred Stock shall vote together with the holders of Common Stock as a
single class. The holders of the Series A Preferred Stock shall vote
separately as a class with respect to any amendment affecting the rights
and obligations of holders of Series A Preferred Stock and as otherwise
required by law.
4. Optional Conversion. The holders of the Series A Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
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(a) Right to Convert. Each share of Series A Preferred Stock shall be
convertible, at the option of the holder thereof, at any time and from time
to time, into one share of Common Stock (the number and type of shares into
which the Series A Preferred Stock shall be converted shall be adjusted as
described below) ("Conversion Shares"), without any payment of monies by
the holder of Series A Preferred Stock for such conversion. Upon a
Liquidating Event, the Conversion Rights shall terminate at the close of
business on the first (1st) full day preceding the date fixed for the
payment of any amounts distributable on liquidation to the holders of
Series A Preferred Stock.
(b) Automatic Conversion. Upon the sale of shares of Common Stock or
debt securities of the Corporation in a public offering (a "Qualified
Public Offering") pursuant to an effective registration statement under the
Securities Act of 1933, as amended, (i) resulting in at least $100,000,000
of net proceeds to the Corporation or (ii) (A) resulting in more than
$50,000,000 but less than $100,000,000 in net proceeds to the Corporation
and (B) the offering price for Common Stock in such offering multiplied by
the number of shares of Common Stock represented by all the shares of the
Series A Preferred Stock issued in exchange for the DTI Series A Preferred
Stock, is greater than the amount that would provide an IRR (as hereinafter
defined) of at least twenty-five percent (25%) per annum on a cumulative
basis, pre-tax ("Benchmark Amount") from the date of the first Original
Issue Date ("First Issue Date"), then all duly issued and outstanding
shares of the Series A Preferred Stock shall, as of the date of
consummation of such Public Offering, be converted into the Conversion
Shares (as in effect immediately prior to the date of consummation of such
Public Offering). "IRR" means the discount rate that equates (i) the
present value (to the First Issue Date) of the Benchmark Amount with (ii)
the present value (to the First Issue Date) of the total investments made
by KLT on the Original Issue Dates. For purposes of calculating IRR, any
antecedent debt and all property (including without limitation any
antecedent debts or limited liability company interests) shall be deemed to
be contributed on the First Issue Date in cash at its face value. The
Corporation shall give the holders of the Series A Preferred Stock notice
of the filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), of any
registration statement relating to any proposed Public Offering not less
than 30 days prior to such filing. The holders of shares of Series A
Preferred Stock shall present such shares for surrender to the Corporation
in accordance with the provisions of subsection 4(d)(i) below on or before
the closing date of such Public Offering and the Corporation shall issue to
such holders a certificate or certificates for shares of Common Stock in
accordance with the provisions of subsection 4(d)(i) below on such closing
date. The term "Qualified Public Offering" shall be deemed to exclude any
offering (i) pursuant to a registered exchange offer for debt securities
initially sold in a private placement pursuant to Rule 144A and Regulation
S under the Securities Act and (ii) to the extent such offering registers
securities for any party other than the Corporation, including pursuant to
demand registration rights or piggy-back registration rights, on a shelf
registration or otherwise.
(c) Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of the Series A Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
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Corporation shall pay cash equal to such fraction multiplied by the fair
market value of such fractional shares of Common Stock as determined in
good faith by the Corporation's Board of Directors, whose determination
shall be conclusive.
(d) Mechanics of Conversion.
(i) Surrender of Certificates. In order for a holder of Series A
Preferred Stock to convert shares of Series A Preferred Stock into
shares of Common Stock, such holder shall surrender the certificate or
certificates for such shares of Series A Preferred Stock, at the
office of the transfer agent for the Series A Preferred Stock (or at
the principal office of the Corporation if the Corporation serves as
its own transfer agent), together with written notice that such holder
elects to convert all or any number of the shares of the Series A
Preferred Stock represented by such certificate or certificates
without any payment to the Corporation by the holder for such
conversion. Such notice shall state such holder's name or the names of
the nominees in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. If required by
the Corporation, certificates surrendered for conversion shall be
endorsed or accompanied by a written instrument or instruments of
transfer, in form satisfactory to the Corporation, duly executed by
the registered holder or his, her or its attorney duly authorized in
writing. The date of receipt of such certificates and notice by the
transfer agent (or by the Corporation if the Corporation serves as its
own transfer agent) shall be the conversion date ("Conversion Date").
The Corporation shall, as soon as practicable after the Conversion
Date, issue and deliver at such office to such holder of Series A
Preferred Stock, or to his, her or its nominees, a certificate or
certificates for the number of shares of Common Stock to which such
holder shall be entitled, together with cash in lieu of any fraction
of a share.
(ii) Reservation of Common Stock. The Corporation shall at all
times when the Series A Preferred Stock shall be outstanding, reserve
and keep available out of its authorized but unissued stock, for the
purpose of effecting the conversion of the Series A Preferred Stock,
such number of its duly authorized shares of Common Stock or other
securities into which the Series A Preferred Stock may then be
convertible, as shall from time to time be sufficient to effect the
conversion of all outstanding Series A Preferred Stock.
(iii) Unpaid Dividends. Upon any conversion, no adjustment to the
Conversion Shares shall be made for any accrued and unpaid dividends
on the Series A Preferred Stock surrendered for conversion or on the
Common Stock delivered upon conversion.
(iv) No Rights. All shares of Series A Preferred Stock that have
been surrendered for conversion as herein provided or are subject to
automatic conversion under subsection 4(b), whether or not
surrendered, shall no longer be deemed to be outstanding and all
rights with respect to such shares, including the rights, if any, to
receive notices and to vote, shall immediately cease and terminate on
the Conversion Date, except only the right of the holders thereof to
receive shares of Common Stock in exchange therefor and payment of any
accrued and unpaid dividends thereon.
(e) Adjustments of Conversion Shares. In case the Corporation shall
hereafter (i) declare a dividend or a distribution on its Common Stock payable
in shares of its Common Stock, (ii) subdivide its outstanding shares of Common
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Stock, (iii) combine its outstanding Common Stock into a smaller number of
shares, or (iv) issue other securities of the Corporation by reclassification of
its Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Corporation is the continuing corporation),
the number and kind of Conversion Shares at the time of the record date for such
dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be proportionately adjusted so that the owner of any
Series A Preferred Stock converted after such date shall be entitled to receive
the number and kind of Conversion Shares which, if such Series A Preferred Stock
had been converted immediately prior to such time, he would have owned upon such
conversion and been entitled to receive upon such dividend, distribution,
subdivision, combination or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur; appropriate adjustment
(as determined in good faith by the Board of Directors of the Corporation) shall
be made to apply the provisions in this Section 4 to any Conversion Shares which
are not Common Stock in a manner as similar as possible to that for the Common
Stock.
(f) Adjustment for Merger or Reorganization, Etc. In case of any
consolidation or merger of the Corporation with or into another corporation or
the sale of all or substantially all of the assets of the Corporation to another
corporation, each share of Series A Preferred Stock shall automatically convert
into the kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock of the Corporation
deliverable upon conversion of such Series A Preferred Stock would have been
entitled upon such consolidation, merger or sale; appropriate adjustment (as
determined in good faith by the Board of Directors of the Corporation) shall be
made to apply the provisions in this Section 4 to any Conversion Shares which
are not Common Stock in a manner as similar as possible to that for the Common
Stock.
(g) No Impairment. The Corporation will not, by amendment of its Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series A Preferred Stock against impairment.
(h) Notice of Record Date. In the event:
(i) that the Corporation declares a dividend (or any other
distribution) on its Common Stock payable in Common Stock or other
securities of the Corporation;
(ii) that the Corporation subdivides or combines its outstanding
shares of Common Stock;
(iii) of any reclassification of the Common Stock of the
Corporation (other than a subdivision or combination of its
outstanding shares of Common Stock or a stock dividend or stock
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distribution thereon), or of any consolidation or merger of the
Corporation into or with another corporation, or of the sale of all or
substantially all of the assets of the Corporation; or
(iv) of the involuntary or voluntary dissolution, liquidation or
winding up of the Corporation,
then the Corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Series A Preferred Stock, and shall cause to
be mailed to the holders of the Series A Preferred Stock at their last addresses
as shown on the records of the Corporation or such transfer agent, at least 20
days prior to the record date specified below in subparagraph (A) or 20 days
before the date specified below in subparagraph (B), a notice stating:
(A) the record date of such dividend, distribution, subdivision
or combination, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such
dividend, distribution, subdivision or combination are to be
determined; or
(B) the date on which such reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, dissolution or winding
up.
(i) Special Anti-Dilution. In the event that the number of shares of Common
Stock issuable upon exercise of the warrant issued by Digital Teleport, Inc.
("DTI") to Banque IndoSuez would cause a dilution of the ownership of
outstanding Series A Preferred Stock to less than 49.74874% of the total
outstanding stock of the Corporation, assuming such warrant had been exercised
on the First Issue Date and all shares of DTI Series A Preferred Stock had been
issued at the First Issue Date, the Conversion Shares shall be increased to a
number which would equal the number of shares of capital stock of the
Corporation that would have constituted 49.74874% of the total outstanding stock
of DTI at the First Issue Date assuming such warrant had been exercised at such
time.
ARTICLE FOUR
The extent, if any, of the preemptive right of a shareholder to acquire
additional shares is hereby denied.
ARTICLE FIVE
The name and place of residence of the incorporator is as follows:
Richard D. Weinstein
14222 Kinderhook Drive
Chesterfield, MO 63017
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ARTICLE SIX
The number of directors to constitute the Board of Directors is six.
Thereafter, the number of directors shall be fixed by, or in the manner provided
in, the Bylaws of the Corporation. Any changes in the number will be reported to
the Secretary of State within thirty calendar days of such change.
ARTICLE SEVEN
The duration of the corporation is Perpetual.
ARTICLE EIGHT
The corporation is formed for the following purposes:
1. To operate a communications business, providing all other related
communications services as well as a general business.
2. To buy, sell, and deal generally at retail and wholesale of
merchandise and services.
3. To borrow money, lend money, invest money, and for such purpose to
execute notes, bonds, debentures, or any other form of evidence of
indebtedness, and to secure the payment of same by mortgage, deed of
trust, or other form of encumbrance, pledge, or other form of
hypothecation.
4. To take, purchase, or otherwise acquire, and to own and hold such
personal property, chattels real, rights, easements, privileges, chose
in action, notes, bonds, mortgages, and securities as may be lawfully
be acquired, held, or disposed of by the Corporation under the laws of
the State of Missouri.
5. To sell, assign, convey, exchange, release, and otherwise deal in, and
dispose of such real and personal property, lands, buildings,
chattels, chattels real, rights, easements, privileges, chose in
action, notes, bonds, mortgages, and securities as may lawfully be
acquired, held, or disposed of by the Corporation under the laws of
the State of Missouri.
6. To enter into and perform all manner and kinds of contracts,
agreements, and obligations of any lawful purposes, by or with any
person, firm, association, corporation, or governmental division or
subdivision.
7. To lend and advance money or to give credit to such persons and on
such terms as may seem expedient, and, in particular, to customers and
others dealing with it;
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8. To guarantee or give security for the loans of its customers and other
dealing with it;
9. In general, to have and exercise any and all powers that corporations
have and may exercise under the laws of the State of Missouri and as
the same may be amended, except such powers as are inconsistent with
the express provisions of these articles;
10. To do all and everything necessary, suitable, or proper for the
accomplishment of any of the purposes, the attainment of any of the
objects, or the exercise of any of the powers herein set forth, either
alone, or in conjunction with other corporations, firms, individuals,
and either as principals or agents, and to do every other act or acts,
thing or things, incidental or appurtenant to, or growing out of, or
connected with the above mentioned objects, purposes or powers;
11. To have and to exercise all of the powers now or hereafter conferred
by the laws of the State of Missouri upon corporations organized
pursuant the laws under which the Corporation is organized, and any
and all acts amendatory thereof and supplemental thereto;
12. The above enumerated powers shall not be construed as limiting or
restricting in any manner the powers of this Corporation which shall
always have such incidental powers as may be connected with or related
to any specific power herein enumerated.
ARTICLE NINE
The Corporation shall not be subject to the provisions of Section 351.459
of The General and Business Corporation Law of Missouri.
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IN WITNESS WHEREOF, the undersigned, Richard D. Weinstein, President, has
executed this instrument and Richard D. Weinstein, its Secretary has attested
thereto on the 14th day of April, 1998.
DTI HOLDINGS, INC.
By:/s/ Richard D. Weinstein
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Richard D. Weinstein, President
Attested:
/s/ Richard D. Weinstein
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Richard D. Weinstein, Secretary
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
I, Connie B. Walsh, a Notary Public, do hereby certify that on
the 14th day of April, 1998, personally appeared before me Richard D. Weinstein,
and, being first duly sworn by me, acknowledged that he signed as his free act
and deed the foregoing document in the capacity(ies) therein set forth and
declared that the statements therein contained are true, to his knowledge and
belief.
/s/ Connie B. Walsh
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Notary Public
My Commission expires:
January 9, 2000
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