EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
eGLOBE, INC.
eGlobe, Inc. (the "Corporation"), a corporation organized and existing
under the General Corporation Law of the State of Delaware, does hereby certify
as follows:
FIRST: That in accordance with the requirements of Section 242 of the
General Corporation Law of the State of Delaware, the Board of Directors of the
Corporation, acting at a meeting of the directors of the Corporation at which a
quorum was present duly adopted resolutions proposing and declaring advisable a
prohibition on the acquisition by any person of more than 30% of the outstanding
Common Stock or 40% of the Common Stock outstanding on a fully diluted basis
except through a qualifying offer and recommending that such prohibition be
submitted to the stockholders of the Corporation for their consideration, action
and approval.
SECOND: That the amendment to the Restated Certificate of Incorporation
of the Corporation is as follows:
A new ARTICLE XI of the Restated Certificate of Incorporation is hereby
added which shall read as follows:
ARTICLE XI
Ownership Above Specified Levels
(a) No person shall become an excess shares owner unless:
(1) Prior to such time the board of directors of the corporation
approved such person becoming the owner of shares in excess of the
permitted number (and in such case such person shall be permitted to
acquire only up to the maximum number of shares approved by the board of
directors to be acquired by such person);
(2) The transaction which resulted in the person becoming an excess
shares owner constituted a qualifying offer; or
(3) At or subsequent to such time such person becoming the owner of
shares in excess of the permitted number is approved by the board of
directors and authorized at an annual or special meeting of stockholders,
and not by written consent, by the affirmative vote of at least 66-2/3% of
the outstanding voting stock which is not owned by the excess shares owner
(and in such case such person shall be permitted to acquire only up to the
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maximum number of shares approved by the board of directors and
stockholders to be acquired by such person).
(b) For purposes of this Article XI only, the term:
(1) "Affiliate" means a person that directly, or indirectly through 1
or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(2) "Associate," when used to indicate a relationship with any person,
means: (i) Any corporation, partnership, unincorporated association or
other entity of which such person is a director, officer or partner or is,
directly or indirectly (including in street name accounts), the owner of
20% or more of any class of voting stock; (ii) any trust or other estate in
which such person has at least a 20% beneficial interest or as to which
such person serves as trustee or in a similar fiduciary capacity; and (iii)
any relative or spouse of such person, or any relative of such spouse, who
has the same residence as such person.
(3) "Common stock" shall mean all classes or series of common stock of
the corporation which constitute voting stock of the corporation.
(4) "Control," including the terms "controlling," "controlled by" and
"under common control with," means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting stock, by
contract or otherwise. A person who is the owner of 20% or more of the
outstanding voting stock of any corporation, partnership, unincorporated
association or other entity shall be presumed to have control of such
entity, in the absence of proof by a preponderance of the evidence to the
contrary; Notwithstanding the foregoing, a presumption of control shall not
apply where such person holds voting stock, in good faith and not for the
purpose of circumventing this section, as an agent, bank, broker, nominee,
custodian or trustee for 1 or more owners who do not individually or as a
group have control of such entity.
(5) "Excess shares" shall mean the excess of the number of shares of
common stock held by an excess shares owner above the permitted number of
shares of common stock.
(6) "Excess shares owner" shall mean the owner of more than the
permitted number of shares of common stock, but shall not include (1) a
person becomes the owner of more than the permitted number of shares of
common stock inadvertently and (i) as soon as practicable divests itself of
ownership of sufficient shares so that the stockholder ceases to be the
owner of more than the permitted number of shares of common stock, and (ii)
would not, at any time within the 3-year period immediately prior thereto,
have
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been the owner of more than the permitted number of shares of common stock
but for the inadvertent acquisition of ownership, or (2) a person becomes
the owner of more than the permitted number of shares of common stock as
the result of action taken solely by the corporation; provided that such
person shall be an excess shares owner if thereafter such person acquires
additional shares of voting stock of the corporation, except as a result of
further corporate action not caused, directly or indirectly, by such
person.
(7) "Fully diluted" shall mean, as of any particular date, the total
number of shares of common stock that would then be outstanding assuming
(1) the conversion of all then outstanding convertible securities
(including preferred stock of the corporation) where no price must be paid
for conversion or the price, if any, is less than the then market price of
the common stock, (2) the exercise of any then outstanding options,
warrants or similar rights to acquire common stock or other securities of
the corporation where the exercise price is less than the then market price
of the common stock, and (3) the issuance of all securities (and the
conversion of any convertible securities or exercise of options or warrants
in accordance with clauses (1) and (2)) which are subject to achievement of
performance criteria under a then existing contract, the terms of preferred
stock or warrants, or other valid and binding arrangement.
(8) "Outstanding," with reference to stock (other than stock
outstanding on a fully diluted basis), shall not include any unissued stock
of the corporation which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(9) "Owner," including the terms "own" and "owned," when used with
respect to any stock, means a person that individually or with or through
any of its affiliates or associates:
(i) Owns such stock, directly or indirectly (including in street
name accounts); or
(ii) Has (A) when determining shares owned on a fully diluted
basis, the right to acquire such stock (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise
(when determining shares owned on an outstanding basis, such shares
shall not be considered owned); provided, however, that a person shall
not be deemed the owner of stock tendered pursuant to a tender or
exchange offer made by such person or any of such person's affiliates
or associates until such tendered stock is accepted for purchase or
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exchange; or (B) the right to vote such stock pursuant to any
agreement, arrangement or understanding; provided, however, that a
person shall not be deemed the owner of any stock because of such
person's right to vote such stock if the agreement, arrangement or
understanding to vote such stock arises solely from a revocable proxy
or consent given in response to a proxy or consent solicitation made
to 10 or more persons; or
(iii) Has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting (except voting pursuant
to a revocable proxy or consent as described in item (B) of
subparagraph (ii) of this paragraph), or disposing of such stock
with any other person that owns, or whose affiliates or
associates own, directly or indirectly (including in street name
accounts), such stock.
(10) The "permitted number" of shares of common stock of the
corporation shall be (i) one share less than the number of shares of
common stock of the corporation constituting 30% of the outstanding
common stock and (ii) one share less than the number of shares of
common stock constituting 40% of the common stock then outstanding on
a fully diluted basis.
(11) "Person" means any individual, corporation, partnership,
unincorporated association or other entity.
(12) "Qualifying offer" shall mean any fully financed, all-cash
tender offer to purchase all of the outstanding shares of common
stock, on a fully diluted basis: (i) that is subject to Section
14(d)(1) of the Securities Exchange Act of 1934, as amended; (ii) that
is first proposed on or after June 16, 1999; and (iii) that is subject
to no condition other than (A) the tender to the offeror of at least
85% of the shares of common stock outstanding at the time of
commencement (as such term is used in Rule 14d-2 promulgated by the
SEC under the Securities Exchange Act of 1934) of the offer, excluding
for purposes of determining the number of shares outstanding those
shares owned (I) by persons who are directors and also officers and
(II) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to
the plan will be tendered in a tender or exchange offer, (B) the
expiration of any waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 applicable to the purchase of common stock
pursuant to the offer, and (C) other customary conditions dealing with
the following subjects: (1) pending or threatened legal or
administrative proceedings, (2) governmental action or enactment or
application of statutes or regulations, (3) extraordinary changes in
economic or political conditions, (4) extraordinary actions or
transactions by the corporation with respect to its capitalization,
and (5) agreement with the corporation on an alternative transaction.
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(13) "Redemption value" of a share of the corporation's stock of
any class or series shall mean the average closing price for such a
share for each of the 45 most recent days on which shares of stock of
such class or series shall have been traded preceding the date on
which notice of redemption shall be given pursuant to paragraph (e) of
this Article XI; provided, however, that if shares of stock of such
class or series are not traded on any securities exchange or in the
over-the-counter market, redemption value shall be determined by the
board of directors in good faith. "Closing price" on any day means the
reported closing sales price or, in case no such sale takes place, the
average of the reported closing bid and asked prices on the principal
United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such stock
is not listed on any such exchange, the highest closing sales price or
bid quotation for such stock on the National Association of Securities
Dealers, Inc. Automated Quotations system or any similar system then
in use, or if no such prices or quotations are available, the fair
market value on the day in question as determined by the board of
directors in good faith.
(14) "Redemption date" shall mean the date fixed by the board
of directors for the redemption of any shares of stock of the
corporation pursuant to this Article XI.
(15) "Redemption securities" shall mean any debt or equity
securities of the corporation, any of its subsidiaries or any other
corporation, or any combination thereof, having such terms and
conditions (including, without limitation, in the case of debt
securities, repayment over a period of up to thirty years, or a longer
period) as shall be approved by the board of directors and which,
together with any cash to be paid as part of the redemption price, in
the opinion of any nationally recognized investment banking firm
selected by the board of directors (which may be a firm which provides
other investment banking, brokerage or other services to the
corporation), has a value, at the time notice of redemption is given
pursuant to paragraph (e) of this Article XI, at least equal to the
price required to be paid pursuant to paragraph (e) of this Article XI
(assuming, in the case of redemption securities to be publicly traded,
such redemption securities were fully distributed and subject only to
normal trading activity).
(16) "Stock" means capital stock of the corporation.
(17) "Voting stock" means, stock of any class or series entitled
to vote generally in the election of directors and, with respect to
any entity that is not a corporation, any equity interest entitled to
vote generally in the election of the governing body of such entity.
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(c) The provisions of this Article XI shall not apply at any time when the
corporation does not have a class of voting stock that is publicly traded.
(d) All determinations regarding matters arising under this Article XI
including without limitation determining the permitted number, the meaning or
interpretation as of any particular date of the term fully diluted, and whether
or not any offer is a qualifying offer, and resolving any ambiguity, shall be
made by two-thirds of the directors.
(e) If the board of directors shall at any time determine in good faith
that any event has taken place that results in a person becoming an excess
shares owner, the excess shares shall not have any voting rights. In addition,
the corporation may take such action as it deems advisable, including, to the
extent permitted by applicable law, to redeem the excess shares as provided
below or, to the extent permitted by applicable law, to seek equitable relief,
including injunctive relief, to enforce the provisions of this Article XI.
The terms and conditions of a redemption of excess shares, to the
extent permitted by applicable law, shall be as follows:
(1) The redemption price of the excess shares to be redeemed
shall be equal to the lesser of (i) the redemption value or (ii) if
such stock was purchased by the excess shares owner within one year of
the redemption date, such excess shares owner's purchase price for
such shares;
(2) The redemption price of such shares may be paid in cash,
redemption securities or any combination thereof;
(3) If less than all the shares held by excess shares owner are
to be redeemed, the shares to be redeemed shall be selected in such
manner as shall be determined by the board of directors, which may
include selection first of the most recently purchased shares thereof,
selection by lot or selection in any other manner determined by the
board of directors;
(4) At least 30 days' written notice of the redemption date shall
be given to the record holders of the shares selected to be redeemed
(unless waived in writing by any such holder), provided that the
redemption date may be the date on which written notice shall be given
to record holders if the cash or redemption securities necessary to
effect the redemption shall have been deposited in trust for the
benefit of such record holders and subject to immediate withdrawal by
them upon surrender of the stock certificates of their shares to be
redeemed.
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(5) From and after the redemption date, any and all rights of
whatever nature which may be held by the owners of shares selected for
redemption (including without limitation any rights to vote or
participate in dividends declared on stock of the same class or series
as such shares) shall cease and terminate and such owners shall
thenceforth be entitled only to receive the cash or redemption
securities payable upon redemption; and
(6) The redemption shall be on such other terms and conditions as
the board of directors shall determine.
(f) Notwithstanding any other provisions of the certificate of
incorporation or bylaws of the corporation, affirmative vote of at least 75% of
the outstanding voting stock which is not owned by any excess shares owner shall
be required to amend, alter, change, repeal, or adopt any provisions
inconsistent with, the provisions of this Article XI.
THIRD: That thereafter, pursuant to resolution of the Board of
Directors, at least a majority of the outstanding stock of the Corporation
entitled to vote thereon, acting at a meeting of stockholders of the Corporation
at which a quorum was present in accordance with the General Corporation Law of
the State of Delaware, duly approved the aforesaid amendment to the Restated
Certificate of Incorporation of the Corporation.
FOURTH: That the aforesaid amendment to the Restated Certificate of
Incorporation of the Corporation was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of Restated Certificate of Incorporation of the Corporation to be duly
executed and acknowledged in accordance with Section 103 of the General
Corporation Law of the State of Delaware on this 7th day of July, 1999.
eGLOBE, INC.
By: /s/ Christopher J. Vizas
--------------------------
Name: Christopher J. Vizas
Title: Chairman of the Board and
Chief Executive Officer