EXHIBIT 3.1
FIRST AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED
Pursuant to the provisions of Section 245 of the Delaware General
Corporation Law, Primus Telecommunications Group, Incorporated, a Delaware
corporation (the "Corporation"), does hereby certify as follows:
I. The name of the Corporation is Primus Telecommunications Group,
Incorporated. The date of filing its original Certificate of Incorporation with
the Secretary of State was February 4, 1994 under the name Global
Telecommunications, Inc.
II. This First Amended and Restated Certificate of Incorporation has been duly
adopted and proposed to the stockholders of the Corporation by the Board of
Directors of the Corporation, and has been approved and adopted by the
stockholders of the Corporation, in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
III. Pursuant to Section 242 and 245 of the General Corporation Law of the State
of Delaware, this First Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation.
IV. The text of the Certificate of Incorporation is hereby restated and further
amended to read in its entirety as hereinafter set forth:
1. The name of the Corporation is Primus Telecommunications Group,
Incorporated.
2. The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware and to possess
and exercise all of the power and privileges granted by such law and
other law of Delaware.
4. Authorized Shares, Powers, Preferences and Rights.
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4.1 Authorized Shares. The aggregate number of shares that the
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Corporation shall have authority to issue shall be eighty-two million four
hundred fifty-five thousand (82,455,000), eighty million (80,000,000) of which
shall be shares of common stock ("Common Stock"), par value $.01 per share, four
hundred fifty-five thousand (455,000) of which shall be shares of convertible
preferred stock ("Series A Preferred Stock"), par value $.01 per share and
having such rights, designations, preferences and limitations as set forth in
Section 4.2 hereof, and two million (2,000,000) of which shall be shares of
preferred stock, par value $.01 per share and having such rights, designations,
preferences and limitations and such series and such number as designated by the
board of directors of the Corporation pursuant to the authority expressly
granted hereby to the board of directors to fix by resolution or resolutions the
designations, powers, preferences and rights, and the qualifications,
limitations or restrictions of
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certain series and number thereof which are permitted by Section 151 of the
General Corporation Laws of the State of Delaware, (or any successor provision
thereto) in respect of any class or classes of stock or any series of any class
of stock of the Corporation.
4.2 Rights, Designations, Preferences and Limitations.
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(a) Dividends. Holders of Series A Preferred Stock shall be entitled,
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as may be determined by the board of directors of the Corporation, to receive
dividends out of any funds legally available therefor when and as declared and
in the same amounts as paid on Common Stock on a per share Common Stock
equivalent basis based on the then effective conversion ratio of Series A
Preferred Stock to Common Stock.
(b) Liquidation. Upon any liquidation, dissolution or winding up of
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the Corporation the holders of outstanding shares of Series A Preferred Stock
will be entitled to be paid out of the assets of the Corporation before any
distribution or payment is made upon the Common Stock or any other equity
securities of the Corporation ranking junior in liquidation to the Series A
Preferred Stock, and pari passu with any other preference stock of the
Corporation, an amount in cash equal to the sum of $0.01 per share, plus the
amount of all accrued and unpaid dividends with respect to such share of Series
A Preferred Stock, plus the amount that would be paid on such liquidation to the
holders of Series A Preferred Stock if all such holders had, immediately prior
to such liquidation, converted their shares of Series A Preferred Stock to
shares of Common Stock (the "Liquidation Value"). If, upon any such
liquidation, dissolution or winding up of the Corporation, the corporation's
assets to be distributed among the holders of the Series A Preferred Stock are
insufficient to permit payment to such holders of the aggregate amount which
they are entitled to be paid pursuant to the preceding sentence, then the entire
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assets to be distributed will be distributed ratably among such holders based
upon the aggregate Liquidation Value of the shares of Series A Preferred Stock
held by each such holder. The Corporation will mail written notice of such
liquidation, dissolution or winding up, not less than 60 days prior to the
effective date thereof to each record holder of Series A Preferred Stock.
(c) Voting Rights. Except as provided otherwise herein or as required
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by the General Corporation Law of Delaware, holders of Series A Preferred Stock
shall not be entitled to vote either individually or as a single class with the
holders of Common Stock; provided, however, that in the event that the General
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Corporation Law of Delaware or any other applicable law should entitle the
holders of Series A Preferred Stock to vote, the holders of Series A Preferred
Stock shall be entitled to vote together with holders of Common Stock in a
single class with holders of Series A Preferred Stock entitled to cast the
number of votes that they would have were the Series A Preferred Stock to be
converted into Common Stock prior to such vote, unless, however, the applicable
law expressly requires a separate class vote.
(d) Class Voting Rights. Holders of Series A Preferred Stock shall
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vote as a separate class on, and the affirmative vote of a majority of the
outstanding shares of Series A Preferred Stock shall be required to authorize,
any action which would:
(1) in any manner authorize, create or issue any class or
series of capital stock ranking, as to distribution of assets on liquidation,
prior to the Series A Preferred Stock, or authorize, create or issue any shares
of any class or series or any bonds, debentures, notes or other obligations
convertible into or exchangeable for, or having optional rights to purchase, any
shares having any such priority over the Series A Preferred Stock;
(2) in any manner alter or change the designation or the
powers, preferences or rights or the qualifications, limitations or restrictions
of the Series A Preferred Stock;
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(3) reclassify the shares of Common Stock, or any other shares of any
class or series of capital stock hereafter created junior to the Series A
Preferred Stock into shares of any class or series of capital stock ranking, as
to distribution of assets on liquidation, prior to the Series A Preferred Stock;
(4) increase the aggregate number of Shares of Series A Preferred
Stock which the Corporation shall have the authority to issue.
(e) Conversion into Common Stock.
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(1) (i) Subject in all cases to the limitations set forth
in this Section 4.2(e), the holders of each share of Series A Preferred Stock
shall have the right at any time following the Nonconversion Period to convert
each such share of Series A Preferred Stock into one fully paid and
nonassessable share of Common Stock or such number of shares of Common Stock as
determined in accordance with clause (ii) of this Section 4.2(e)(1).
(ii) In case of any capital reorganization, reclassification,
stock split, combination, or exchange of shares, or in the case of a merger or
consolidation of the Corporation with another entity (in the case of a merger,
wherein the Corporation is the surviving entity), each share of Series A
Preferred Stock, after such reorganization, reclassification, stock split,
combination, exchange of shares, merger or consolidation, shall be convertible
into that kind and number of shares of Common Stock of the Corporation or
surviving corporation as to which such share of Series A Preferred Stock would
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have been entitled if such shares of Series A Preferred Stock had been converted
into Common Stock immediately prior to any of those events.
(2) Upon the occurrence of a Mandatory Event of Conversion, all shares
of Series A Preferred Stock then outstanding shall, by virtue of, and
simultaneously with, the occurrence of the Mandatory Event of Conversion and
without any action on the part of the holder thereof, automatically become
shares of Common Stock; provided, however, that:
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(i) upon the occurrence of a Mandatory Event of Conversion
specified in clause (ii) or (iii) of the definition of "Mandatory Event of
Conversion," shares of Series A Preferred Stock held by persons who are then
listed in the corporation's records as Aliens shall only be converted to the
extent there are Available Shares (as calculated as of the applicable Mandatory
Event of Conversion). For purposes of this clause (i), Available Shares shall be
divided among the Alien holders of Series A Preferred Stock ratably according to
their respective Alien Percentage Interests. Shares of Series A Preferred Stock
not converted due to insufficient Available Shares shall continue as shares of
Series A Preferred Stock with all the rights, designations, preferences and
limitations set forth herein and shall be converted when and as Available Shares
become available; and
(ii) upon the occurrence of the Mandatory Event of Conversion
specified in clause (iv) of the definition thereof, only those shares of Series
A Preferred Stock held by stockholders who did not approve the corporate action
subject to vote (such non-assenting stockholders, the "Non-Assenting
Stockholders"; stockholders who failed to vote their shares shall not be
considered Non-Assenting Stockholders) shall be converted and, with respect to
Non-Assenting Stockholders who are then listed in the corporation's records as
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Aliens ("Non-Assenting Aliens"), such shares shall only be converted to the
extent there are Available Shares (as calculated as of the applicable Mandatory
Event of Conversion). For purposes of this clause (ii), Available Shares shall
be divided among the Non-Assenting Aliens ratably in accordance with the
proportion that their individual Alien Percentage Interest bears to the
aggregate Alien Percentage Interests of all Non-Assenting Aliens. In the event
that the number of Available Shares (as calculated as of the applicable
Mandatory Event of Conversion) is less than the number of shares of Series A
Preferred Stock held by Non-Assenting Aliens, the board of directors of the
Corporation may, in its discretion, waive, for purposes of this clause (ii)
only, the Alien Percentage Limitation with respect to the shares held by the
Non-Assenting Aliens. Should the board of directors of the Corporation not
waive the Alien Percentage Limitation in accordance with the foregoing sentence
within thirty (30) days after the applicable Mandatory Event of Conversion, the
Corporation shall have the right, for a period of one-hundred and twenty (120)
days following the date of the applicable Mandatory Event of Conversion, at its
option and to the extent there are funds of the Corporation available therefor,
to redeem the unconverted shares of Series A Preferred Stock held by Non-
Assenting Aliens at ninety-five percent (95%) of the fair market value of such
shares as determined by an independent appraiser selected by the board of
directors and the Non-Assenting Aliens, which fair market value shall include
the value of all accrued but unpaid dividends with respect to such shares. If
the Board of Directors of the Corporation and the Non-Assenting Aliens cannot
agree upon a person to act as independent appraiser within thirty (30) days
after the applicable Mandatory Event of Conversion, the board of directors shall
request Deloitte & Touche to appoint an independent appraiser. In the event
that the funds of the Corporation are insufficient
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to redeem all the shares of Series A Preferred Stock of the Non-Assenting Aliens
at such time, funds then available shall be distributed ratably among such Non-
Assenting Aliens when and as they become available, and such redemption right
shall continue until such time as the corporation's funds become available
therefor; provided, however, that if the redemption right is not exercised
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within six (6) months after the determination of the fair market value, then at
any time after the expiration of the six (6) month period either the Corporation
or the Non-Assenting Aliens shall be entitled to require a new determination of
the fair market value of the shares of the Series A Preferred Stock.
(3) The holder of any shares of Series A Preferred Stock who is a
Citizen may exercise the conversion right under Section 4.2(e)(1) hereof with
respect to all or any part of his shares of Series A Preferred Stock by
delivering to the office of any transfer agent of the Corporation for the Series
A Preferred Stock, or to such other place as may be designated by the
Corporation, his certificates for the shares to be converted, duly endorsed or
assigned in blank or to the Corporation (if required by it), and a written
notice stating the Citizen name or names (with address) in which the
certificate(s) for the shares of Common Stock are to be issued.
(4) The holder of any shares of Series A Preferred Stock who is an
Alien ("Alien Converting Stockholder") may exercise the conversion right under
Section 4.2(e)(1) hereof, subject to the Alien Percentage Limitation, with
respect to all or part of his shares of Series A Preferred Stock by following
the procedures set forth in this Section 4.2(e)(4). Each Alien Converting
Stockholder shall be entitled to convert that number of shares calculated by
dividing the Available Shares, as calculated on the close of business of the
last day of the 30-day Period (as defined in clause (i) below), by the number
resulting from the division of the
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Alien Percentage Interest of the relevant Alien Converting Stockholder by the
aggregate Alien Percentage Interests of all Alien Converting Stockholders.
(i) The Alien Converting Stockholder shall deliver to the Corporation
written notice of such holder's intent to convert. Such notice shall set forth
the exact number of shares of Series A Preferred Stock which the holder owns,
the number of shares of Series A Preferred Stock the holder desires to convert
and the present citizenship of the holder. Upon receipt of such notice, the
Corporation shall, in turn, send notice to all the record owners of Series A
Preferred Stock (the "Conversion Notice") which Conversion Notice shall state
(a) that the Corporation has received notice of a stockholder's intent to
convert and (b) the number of Available Shares which the Corporation anticipates
will be available for conversion. For a period of 30 days from the date of the
Conversion Notice (the "30-Day Period"), the Corporation shall not convert any
shares of Series A Preferred Stock pursuant to this Section 4.2(e)(4).
(ii) Any other Alien holder of Series A Preferred Stock who also
desires to have some or all of his shares of Series A Preferred Stock converted
shall provide written notice to the Corporation prior to the expiration of the
30-Day Period of his intent to convert, the exact number of shares of Series A
Preferred Stock which such holder owns, the number of shares of Series A
Preferred Stock such holder desires to convert and the present citizenship of
such holder.
(iii) Within five (5) days after the expiration of the 30-Day Period,
the Corporation shall provide notice to all Alien Converting Stockholders who or
which deliver notices to convert under clauses (i) or (ii) of this Section
4.2(e)(4) during the
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applicable 30-Day Period of how many shares each such Alien Converting
Stockholder is entitled to convert. Within ten (10) days after the Alien
Converting Stockholder's receipt of such notice, the Alien Converting
Stockholder must deliver to the office of any transfer agent of the Corporation
for the Series A Preferred Stock, or to such other place as may be designated by
the Corporation, the certificate or certificates for the shares to be converted,
duly endorsed or assigned in blank or to the Corporation (if required by it) and
a written notice stating the name or names (with address) in which the
certificate or certificates for the shares of Common Stock are to be issued.
(5) Conversion shall be deemed to have been effected (i) with respect
to conversion effected pursuant to clause (3) or (4) above, on the date when the
delivery of certificates is made and (ii) with respect to conversion effected
pursuant to clause (2) above, on the date of occurrence of the Mandatory Event
of Conversion.
(6) As promptly as practicable after conversion, the Corporation shall
issue and deliver to or upon the written order of the holder, to the place
designated by such holder, a certificate or certificates for the number of full
shares of Common Stock to which such holder is entitled. The person in whose
names the certificate or certificates for Common Stock are to be issued shall be
deemed to have become a stockholder of record on the applicable Conversion Date
unless the transfer books of the Corporation are closed on that date, in which
event he shall be deemed to have become a stockholder of record on the next
succeeding date on which the transfer books are open. Upon conversion of only a
portion of the number of shares covered by a certificate representing shares of
Series A Preferred Stock, surrendered for conversion, the Corporation shall
issue and deliver to or upon the written order of
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the holder of the certificate so surrendered for conversion, at the expense of
the Corporation, a new certificate covering the number of shares of Series A
Preferred Stock, representing the unconverted portion of the certificate so
surrendered.
(7) With respect to any conversion of Series A Preferred Stock
pursuant to Section 4.2(e)(1) hereof, the calculation of the Alien Percentage
Limitation shall be made by disregarding any Common Stock issuable upon
conversion of other convertible securities issued by the Corporation and
outstanding at the time of the calculation.
(f) Preemptive Rights
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(1) Except with respect to Excluded Shares or as otherwise provided
herein, in the event that (i) the Corporation shall issue, sell or exchange,
agree to issue, sell or exchange, or reserve or set aside for issuance, sale or
exchange, any shares of Common Stock or Convertible Securities (any such
issuance, sale or exchange, an "Issuance"), and (ii) the Corporation shall have
granted preemptive rights in or to such Issuance to other holders of individual
percentage equity interests in the Corporation equal to or less than any of the
individual equity percentage interests in the Corporation of any of the holders
of the Series A Preferred Stock (calculated on a Fully Diluted Basis), then the
holders of Series A Preferred Stock with individual equity percentage interests
equal to or greater than those individual equity percentage interests of holders
of preemptive rights shall be granted comparable preemptive rights in or to the
Issuance.
(g) Legends. Each share of Series A Preferred Stock shall bear a
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legend on the face or back of the certificate representing such share either an
accurate or complete summary of the powers, designations, preferences and other
special rights of the Series A
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Preferred Stock set forth herein, or a statement that the Corporation shall
furnish without charge to each stockholder who so requests, a copy of the
powers, designations, preferences and other special rights of the Series A
Preferred Stock set forth herein.
(h) Definitions. For purposes of this Section 4.2, the following
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terms shall have the following meanings:
"Alien" means any person, Corporation, joint venture, association or
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other organization who or which is not a Citizen or Entity.
"Alien Percentage Interest" means, as to any Alien holder of Series A
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Preferred Stock, the percentage that the outstanding shares of Series A
Preferred Stock then owned by such Alien stockholder is of the aggregate
outstanding number of shares of Series A Preferred Stock then owned by all Alien
stockholders of Series A Preferred Stock.
"Alien Percentage Limitation" means, at any given time, that number of
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shares of Common Stock equal to five percent (5%) of all the issued and
outstanding Common Stock of the Corporation calculated on a Fully Diluted Basis.
"Available Shares" means that number of shares of Common Stock
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available for issuance on a given date to holders of Series A Preferred Stock
who are Aliens calculated by subtracting from the Alien Percentage Limitation
that number of shares of Common Stock issued to Aliens on a Fully Diluted Basis
(excluding the dilution which may be effected by the Series A Preferred Stock).
"Citizen" means any person (not controlled by or representing any (i)
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alien, (ii) foreign government, or (iii) Corporation organized under the laws of
a foreign country) who has obtained the status, whether through right of birth
or naturalization, of citizenship of the United
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States and continues to possess such status as provided for under Title 8 United
States Code Sections 1401 et seq. and 1421 et seq.
"Conversion Date" means with respect to a share of Series A Preferred
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Stock the date on which conversion of the share into Common Stock is deemed to
occur pursuant to Section 4.2(e)(5).
"Convertible Securities" means all debt instruments, securities or
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other equity interests (including the Series A Preferred Stock) convertible into
or exchangeable for Common Stock other than Excluded Shares.
"Entity" means any Corporation, joint venture, partnership,
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association or other organization organized under the laws of the United States,
a state of the United States or the District of Columbia, which Corporation is
not controlled, directly or indirectly, by any other Corporation of which any
officer or more than one-fourth of the directors are aliens or of which more
than one-fourth of the capital stock of such other Corporation is owned of
record or voted by aliens, their representatives, or by a foreign government or
representative thereof, or by any Corporation organized under the laws of a
foreign country.
"Excluded Shares" means, collectively:
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(i) shares issued as a stock dividend;
(ii) shares of any class of the corporation's capital stock
issued upon any subdivision, combination, stock split or reverse stock split of
the entire class of such capital stock of the Corporation;
(iii) any shares issued by the Corporation pursuant to the
acquisition by the Corporation of any Person by means of merger, stock purchase,
reorganization,
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purchase of substantially all the assets or otherwise in which the Corporation,
or its stockholders of record immediately prior to the effective date of such
transaction, directly or indirectly, own at least a majority of the voting power
of the acquired or resulting entity after such transaction;
(iv) any shares issued pursuant to an underwritten public offering of
the type described in clause (iii) of the definition of Mandatory Event of
Conversion; and
(v) any shares issued or issuable upon the exercise of options,
warrants or other rights to acquire shares of Common Stock or on the conversion
or exchange of securities (including the Series A Preferred Stock) convertible
into or exchangeable for Common Stock.
"Fully Diluted Basis" means, as of applicable time of calculation, the
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number of shares of Common Stock that would be issued and outstanding if there
were added to the number of issued and outstanding shares of Common Stock the
number of shares of Common Stock then issuable upon the exercise of all
outstanding, vested or unvested, warrants, options or other rights to acquire
shares of Common Stock and on the conversion or exchange of all debt instruments
and securities (including the Series A Preferred Stock) convertible into or
exchangeable for Common Stock.
"Mandatory Event of Conversion" means the occurrence of any of the
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following events:
(i) both (A) the repeal or inapplicability to the Corporation of the
restrictions on alien ownership set forth in Section 310(b)
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of the Communications Act of 1934 (47 U.S.C. 310(b), as amended) and any
succeeding or comparable legislation, and (B) the expiration of the
Nonconversion Period.
(ii) consummation of the sale (A) of more than fifty percent (50%) of
the capital stock of the Corporation to a single purchaser or more than one
related purchasers, (B) by K. Paul Singh of all of the capital stock of the
Corporation owned by him at the time of such sale, or (C) of substantially all
of the assets of the Corporation; provided, however, that a merger of the
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Corporation with another entity shall not be deemed a Mandatory Event of
Conversion if the Corporation is the surviving entity;
(iii) consummation of an underwritten public offering of more than
twenty percent (20%) of the corporation's Common Stock registered under the
Securities Act of 1933; or
(iv) the failure of a majority of the holders of Series A Preferred
Stock to approve, ratify or otherwise consent to the corporate actions specified
in Section 4.2(d)(1) or (3) hereof.
"Nonconversion Period" means, as to each share of Series A Preferred
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Stock, the period of time ending March 1, 1998, during which period such share
may not be converted into Common Stock.
5. The Corporation is to have perpetual existence.
6. The by-laws of the Corporation may be altered, amended or repealed by
a vote of a majority of the board of directors or by a vote of holders of a
majority of the stock entitled to vote.
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7. Elections of directors need not be by written ballot unless the by-
laws of the Corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the Corporation may be kept
(subject to any provision contained in applicable statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the Corporation.
8. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation and in any
certificate amendatory hereof, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders or others hereunder or
thereunder are granted subject to this reservation.
9. (a) Any transfer or attempted or purported transfer of any shares of
capital stock of the Corporation to any alien, which would place the Corporation
in violation of Section 310(b) of the Communication Act (47 USC Section 310),
shall be void and shall be ineffective as against the Corporation and the
Corporation shall not recognize the purported transferee as a stockholder of the
Corporation for any purpose whatsoever.
(b) The by-laws of the Corporation shall contain provisions to
implement and enforce the provisions and intent of this Article. In addition,
the board of directors shall make such rules and regulations as it deems
necessary and desirable to implement and enforce the provisions and intent of
this Article to ensure the corporation's compliance with 47 USC Section 310(b)
and to maintain accurate records of the shares of capital stock of the
Corporation.
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10. No director of the Corporation shall be personally liable to the
Corporation or to any stockholder of the Corporation 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 of 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 an
improper personal benefit. If the Delaware General Corporation Law hereafter is
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law, and
such elimination or limitation of liability shall be in addition to, and not in
lieu of, the limitation on the liability of a director provided by the foregoing
provision of this Tenth Article. Any repeal or modification of this paragraph
by the stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
11. The Corporation shall, to the fullest extent permitted by Section 145
of the Delaware General Corporation Law, as amended from time to time, indemnify
each person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was, or has agreed to become, a director or officer of the Corporation, or is or
was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with, another
Corporation, partnership, joint venture, trust or
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other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person or on such person's
behalf in connection with such action, suit or proceeding and any appeal
therefrom.
Indemnification may include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by the person indemnified to
repay such payment if it is ultimately determined that such person is not
entitled to indemnification under this Eleventh Article, which undertaking may
be accepted without reference to the financial ability of such person to make
such repayment.
The Corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved by the board of directors
of the Corporation.
The indemnification rights provided in this Eleventh Article (i) shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any law, agreement or vote of stockholders or disinterested
directors or otherwise, and (ii) shall inure to the benefit of the heirs,
executors and administrators of such persons. The Corporation may, to the
extent authorized from time to time by its board of directors, grant
indemnification rights to other employees or agents of the Corporation or other
persons serving the Corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Eleventh Article.
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12. Any action required by the Delaware General Corporation Law to be
taken at any annual or special meeting of the stockholders of the Corporation or
any action which may be taken at any annual or special meeting of the
stockholders of the Corporation shall not be taken without a meeting,
notwithstanding (S)228 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, Primus Telecommunications Group, Incorporated, has
caused this certificate to be signed by K. Paul Singh, its Chairman, President
and Chief Executive Officer, effective as of this 5th day of June, 1998.
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED
By: /s/ K. Paul Singh
____________________________________
Name: K. Paul Singh
Title: Chairman, President and Chief Executive Officer
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