EXHIBIT 3(i)
RESTATED CERTIFICATE OF INCORPORATION
OF
U S WEST, INC.
(Originally Incorporated on December 23, 1997
Under the Name U S WEST COMMUNICATIONS GROUP, INC.)
ARTICLE I
NAME
The name of the corporation is U S WEST, Inc. (the "Corporation").
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801. The name of its registered agent at
that address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law (the "Corporation Law").
ARTICLE IV
POWERS
The Corporation shall have all powers that may now or hereafter be lawful
for a corporation to exercise under the Corporation Law.
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ARTICLE V
CAPITAL STOCK
SECTION 1. Authorization. The aggregate number of shares of stock which the
Corporation shall have authority to issue is two billion two hundred million
(2,200,000,000) shares, of which two billion (2,000,000,000) shares shall be
shares of common stock having a par value of $0.01 per share (the "Common
Stock"), and two hundred million (200,000,000) shares shall be shares of a class
of preferred stock having a par value of $1.00 per share (the "Preferred Stock")
and issuable in one or more series as hereinafter provided. For purposes of this
Article V, references to the "Board of Directors" shall refer to the Board of
Directors of the Corporation, as established in accordance with Article VI of
the Certificate of Incorporation of the Corporation and references to "the
Certificate of Incorporation of the Corporation" shall refer to this Restated
Certificate of Incorporation as the same may be amended from time to time.
SECTION 2. Common Stock. The shares of Common Stock of the Corporation
shall be of one and the same class. The holders of Common Stock shall have one
vote per share of Common Stock on all matters on which holders of Common Stock
are entitled to vote. Except as otherwise provided by law or by the terms of any
outstanding series of Preferred Stock, the entire voting power of the
stockholders of the Corporation shall be vested in the holders of Common Stock
of the Corporation, who shall be entitled to vote on any matter on which the
holders of stock of the Corporation shall, by law or by the provisions of the
Certificate of Incorporation or bylaws of the Corporation, be entitled to vote.
SECTION 3. Preferred Stock. The Preferred Stock may be issued from time to
time in one or more series. Except as provided by subsection 3.1 with respect to
the Series A Preferred Stock (as hereinafter defined), the Board of Directors is
authorized, by resolution adopted and filed in accordance with law, to fix the
number of shares in each series, the designation thereof, the voting powers,
preferences and relative, participating, optional or other special rights
thereof, and the qualifications or restrictions thereon, of each series and the
variations in such voting powers and preferences and rights as between series.
Any shares of any series of Preferred Stock
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purchased, exchanged, converted or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock, without designation as to series, and may be
reissued as part of any series of Preferred Stock created by resolution or
resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth in this Certificate of Incorporation or in
such resolution or resolutions.
3.1. Series A Junior Preferred Stock. There is hereby created a series of
Preferred Stock, designated Series A Junior Preferred Stock, par value $1.00 per
share (the "Series A Preferred Stock"), of 10,000,000 shares having the
following voting powers, preferences and rights, and qualifications and
restrictions thereon provided by this subsection 3.1:
3.1.1 Dividends and Distributions.
A. Subject to the provisions for adjustment here inafter set forth, the
holders of shares of Series A Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, (i) cash dividends in an amount per share (rounded to
the nearest cent) equal to 100 times the aggregate per share amount of all cash
dividends declared or paid on the Common Stock, and (ii) a preferential cash
dividend (the "Preferential Dividends"), if any, in preference to the holders of
Common Stock, on the first day of February, May, August and November of each
year (each a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Preferred Stock, payable in an amount (except in the case
of the first Quarterly Dividend Payment if the date of the first issuance of
Series A Preferred Stock is a date other than a Quarterly Dividend Payment date,
in which case such payment shall be a prorated amount of such amount) equal to
$25 per share of Series A Preferred Stock less the per share amount of all cash
dividends declared on the Series A Preferred Stock pursuant to clause (i) of
this sentence since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock. In the
event
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the Corporation shall, at any time after the issuance of any share or fraction
of a share of Series A Preferred Stock, make any distribution on the shares of
Common Stock, whether by way of a dividend or a reclassification of stock, a
recapitalization, reorganization or partial liquidation of the Corporation or
otherwise, which is payable in cash or any debt security, debt instrument, real
or personal property or any other property (other than cash dividends subject to
the immediately preceding sentence, a distribu- tion of shares of Common Stock
or other capital stock of the Corporation or a distribution of rights or
warrants to acquire any such share, including any debt security convert- ible
into or exchangeable for any such share, at a price less than the Fair Market
Value (as hereinafter defined) of such share), then, and in each such event, the
Corporation shall simultaneously pay on each then outstanding share of Series A
Preferred Stock a distribution, in like kind, of 100 times such distribution
paid on a share of Common Stock (subject to the provisions for adjustment
hereinafter set forth). The dividends and distributions on the Series A
Preferred Stock to which holders thereof are entitled pursuant to clause (i) of
the first sentence of this paragraph and pursuant to the second sentence of this
para- graph are hereinafter referred to as "Dividends" and the multiple of such
cash and non-cash dividends on the Common Stock applicable to the determination
of the Dividends, which shall be 100 initially but shall be adjusted from time
to time as hereinafter provided, is hereinafter referred to as the "Dividend
Multiple". In the event the Corporation shall at any time after June 1, 1998
(the "Effective Date") declare or pay any dividend or make any distribution on
Common Stock payable in shares of Common Stock, or effect a subdivision or split
or a combination, consolidation or re- verse split of the outstanding shares of
Common Stock into a greater or lesser number of shares of Common Stock, then in
each such case the Dividend Multiple thereafter applicable to the determination
of the amount of Dividends which holders of shares of Series A Preferred Stock
shall be entitled to receive shall be the Dividend Multiple applicable
immediately prior to such event multiplied by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
B. The Corporation shall declare each Dividend at the same time it declares
any cash or non-cash dividend or distribution on the Common Stock in respect of
which a
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Dividend is required to be paid. No cash or non-cash dividend or distribution on
the Common Stock in respect of which a Dividend is required to be paid shall be
paid or set aside for payment on the Common Stock unless a Dividend in respect
of such dividend or distribution on the Common Stock shall be simultaneously
paid, or set aside for payment, on the Series A Preferred Stock.
C. Preferential Dividends shall begin to accrue on outstanding shares of
Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding
the date of issuance of any shares of Series A Preferred Stock. Accrued but
unpaid Preferential Dividends shall cumulate but shall not bear interest.
Preferential Dividends paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
3.1.2 Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
100 votes on all matters submitted to a vote of the holders of the Common
Stock. The number of votes which a holder of Series A Preferred Stock is
entitled to cast, as the same may be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Vote Multiple". In
the event the Corporation shall at any time after the Effective Date
declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or split or a combination, consolidation or
reverse split of the outstanding shares of Common Stock into a greater or
lesser number of shares of Common Stock, then in each such case the Vote
Multiple thereafter applicable to the determination of the number of votes
per share to which holders of shares of Series A Preferred Stock shall be
entitled after such event shall be the Vote Multiple immediately prior to
such event multiplied by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
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(B) Except as otherwise provided herein, in the Certificate of
Incorporation or bylaws of the Corporation, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) In the event that the Preferential Dividends accrued on the Series
A Preferred Stock for four or more quarterly dividend periods, whether
consecutive or not, shall not have been declared and paid or irrevocably
set aside for payment, the holders of record of Preferred Stock of the
Corporation of all series (including the Series A Preferred Stock), other
than any series in respect of which such right is expressly withheld by the
Certificate of Incorporation or the authorizing resolutions included in any
Certificate of Designations therefor, shall have the right, at the next
meeting of stockholders called for the election of directors, to elect two
members to the Board of Directors, which directors shall be in addition to
the number required by the bylaws of the Corporation prior to such event,
to serve until the next Annual Meeting and until their successors are
elected and qualified or their earlier resignation, removal or incapacity
or until such earlier time as all accrued and unpaid Preferential Dividends
upon the outstanding shares of Series A Preferred Stock shall have been
paid (or irrevocably set aside for payment) in full. The holders of shares
of Series A Preferred Stock shall continue to have the right to elect
directors as pro- vided by the immediately preceding sentence until all
accrued and unpaid Preferential Dividends upon the out- standing shares of
Series A Preferred Stock shall have been paid (or set aside for payment) in
full. Such directors may be removed and replaced by such stockholders, and
vacancies in such directorships may be filled only by such stockholders (or
by the remaining director elected by such stockholders, if there be one) in
the manner permitted by law; provided, however, that any such action by
stockholders shall be taken at a meeting of stockholders and shall not be
taken by written consent thereto.
(D) Except as otherwise required by the Certificate of Incorporation
or bylaws of the Corporation or set forth herein, holders of Series A
Preferred Stock shall have no other special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for the taking of any
corporate action.
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3.1.3. Certain Restrictions.
(A) Whenever Preferential Dividends or Dividends are in arrears or the
Corporation shall be in default of payment thereof, thereafter and until
all accrued and unpaid Preferential Dividends and Dividends, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have been
paid or set irrevocably aside for payment in full, and in addition to any
and all other rights which any holder of shares of Series A Preferred Stock
may have in such circumstances, the Corporation shall not
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration, any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity as to dividends with the
Series A Preferred Stock, unless dividends are paid ratably on the
Series A Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled if the full dividends
accrued thereon were to be paid;
(iii) except as permitted by subparagraph (iv) of this paragraph
3.1.3(A), redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior
(both as to dividends and upon liquidation, dissolution or winding up)
to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for considera- tion any shares
of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock (either as to dividends or
upon liqui- dation, dissolution or winding up), except in accordance
with a purchase offer made to all holders of such shares upon such
terms as the Board of Directors,
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after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any Sub- sidiary (as hereinafter
defined) of the Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 3.1.3, purchase or otherwise acquire such shares
at such time and in such manner. A "Subsidiary" of the Corporation shall mean
any corporation or other entity of which securities or other ownership interests
having ordinary voting power sufficient to elect a majority of the board of
directors of such corporation or other entity or other persons performing
similar functions are beneficially owned, directly or indirectly, by the
Corporation or by any corporation or other entity that is otherwise controlled
by the Corporation.
(C) The Corporation shall not issue any shares of Series A Preferred Stock
except upon exercise of Rights is- sued pursuant to that certain Rights
Agreement, dated as of June 1, 1998, between the Corporation and State Street
Bank and Trust Company, as Rights Agent, a copy of which is on file with the
Secretary of the Corporation at its principal executive office and shall be made
available to stockholders of record without charge upon written request therefor
addressed to said Secretary. Notwithstanding the foregoing sentence, nothing
contained in the provisions hereof shall prohibit or restrict the Corporation
from issuing for any purpose any series of Preferred Stock with rights and
privileges similar to, different from, or greater than, those of the Series A
Preferred Stock.
3.1.4. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares upon their retirement and cancellation shall become authorized
but unissued shares of Preferred Stock, without designation as to series,
and such shares may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors.
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3.1.5. Liquidation, Dissolution or Winding Up. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless the holders of shares of Series
A Preferred Stock shall have received for each share of Series A Preferred
Stock, subject to adjustment as hereinafter provided, (A) $100 ($1.00 per
one one-hundredth of a share) plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date
of such payment or, (B) if greater than the amount specified in clause
(i)(A) of this sentence, an amount equal to 100 times the aggregate amount
to be distributed per share to holders of Common Stock, as the same may be
adjusted as hereinafter provided and (ii) to the holders of stock ranking
on a parity upon liquidation, dissolution or winding up with the Series A
Preferred Stock, unless simultaneously therewith distributions are made
ratably on the Series A Preferred Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of shares of
Series A Preferred Stock are entitled under clause (i)(A) of this sentence
and to which the holders of such parity shares are entitled, in each case
upon such liquida- tion, dissolution or winding up. The amount to which
holders of Series A Preferred Stock may be entitled upon liquidation,
dissolution or winding up of the Corporation pursuant to clause (i)(B) of
the foregoing sentence is hereinafter referred to as the "Participating
Liquidation Amount" and the multiple of the amount to be distributed to
holders of shares of Common Stock upon the liquidation, dissolution or
winding up of the Corporation applicable pur- suant to said clause to the
determination of the Participating Liquidation Amount, as said multiple may
be adjusted from time to time as hereinafter provided, is here- inafter
referred to as the "Liquidation Multiple". In the event the Corporation
shall at any time after the Effective Date declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
split or a combination, consolidation or reverse split of the outstanding
shares of Common Stock into a greater or lesser number of shares of Common
Stock, then, in each such case, the Liquidation Multiple thereafter
applicable to the determination of the Participating Liquidation Amount to
which holders of Series A Preferred Stock shall be entitled after such
event shall be the Liquidation Multiple applicable immediately prior to
such event multiplied by a
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fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
3.1.6. Certain Reclassifications and Other Events.
(A) In the event that holders of shares of Common Stock receive after
the Effective Date in respect of their shares of Common Stock any share of
capital stock of the Corporation (other than any share of Common Stock),
whether by way of reclassification, recapitalization, reorganiza- tion,
dividend or other distribution or otherwise (a "Trans- action"), then, and
in each such event, the dividend rights, voting rights and rights upon the
liquidation, dissolution or winding up of the Corporation of the shares of
Series A Preferred Stock shall be adjusted so that after such event the
holders of Series A Preferred Stock shall be entitled, in respect of each
share of Series A Preferred Stock held, in addition to such rights in
respect thereof to which such holder was entitled immediately prior to such
adjustment, to (i) such additional dividends as equal the Dividend Multiple
in effect immediately prior to such Transaction multiplied by the
additional dividends which the holder of a share of Common Stock shall be
entitled to receive by virtue of the receipt in the Transaction of such
capital stock, (ii) such additional voting rights as equal the Vote
Multiple in effect immediately prior to such Transaction multiplied by the
additional voting rights which the holder of a share of Common Stock shall
be entitled to receive by virtue of the receipt in the Transaction of such
capital stock and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Corporation as equal the Liquidation
Multiple in effect immediately prior to such Transaction multiplied by the
additional amount which the holder of a share of Common Stock shall be
entitled to receive upon liquidation, dissolution or winding up of the
Corporation by virtue of the receipt in the Transaction of such capital
stock, as the case may be, all as provided by the terms of such capital
stock.
(B) In the event that holders of shares of Common Stock receive after
the Effective Date in respect of their shares of Common Stock any right or
warrant to purchase Common Stock (including as such a right, for all
purposes of this paragraph, any security convertible into or ex- changeable
for Common Stock) at a purchase price per share
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less than the Fair Market Value of a share of Common Stock on the date
of issuance of such right or warrant, then and in each such event the
dividend rights, voting rights and rights upon the liquidation, dissolution
or winding up of the Corporation of the shares of Series A Preferred Stock
shall each be adjusted so that after such event the Dividend Multiple, the
Vote Multiple and the Liquidation Multiple shall each be the product of the
Dividend Multiple, the Vote Multiple and the Liquidation Multiple, as the
case may be, in effect immediately prior to such event multiplied by a
fraction the numerator of which shall be the number of shares of Common
Stock outstanding immediately before such issuance of rights or warrants
plus the maximum number of shares of Common Stock which could be acquired
upon exercise in full of all such rights or warrants and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the number of shares of
Common Stock which could be purchased, at the Fair Market Value of the
Common Stock at the time of such issuance, by the maximum aggregate
consideration payable upon exercise in full of all such rights or warrants.
(C) In the event that holders of shares of Common Stock receive after
the Effective Date in respect of their shares of Common Stock any right or
warrant to purchase capital stock of the Corporation (other than shares of
Com- mon Stock), including as such a right, for all purposes of this
paragraph, any security convertible into or exchange- able for capital
stock of the Corporation (other than Common Stock), at a purchase price per
share less than the Fair Market Value of such shares of capital stock on
the date of issuance of such right or warrant, then and in each such event
the dividend rights, voting rights and rights upon liquidation, dissolution
or winding up of the Corporation of the shares of Series A Preferred Stock
shall each be adjusted so that after such event each holder of a share of
Series A Preferred Stock shall be entitled, in respect of each share of
Series A Preferred Stock held, in addition to such rights in respect
thereof to which such holder was entitled immediately prior to such event,
to receive (i) such additional dividends as equal the Dividend Multiple in
effect immediately prior to such event multiplied, first, by the additional
dividends to which the holder of a share of Common Stock shall be entitled
upon exercise of such right or warrant by virtue of the capital stock which
could be acquired upon such exercise and multiplied again by the Discount
Fraction (as hereinafter defined) and (ii) such
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additional voting rights as equal the Vote Multiple in effect
immediately prior to such event multiplied, first, by the additional voting
rights to which the holder of a share of Common Stock shall be entitled
upon exercise of such right or warrant by virtue of the capital stock which
could be acquired upon such exercise and multiplied again by the Discount
Fraction and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Corporation as equal the Liquidation
Multiple in effect immediately prior to such event multiplied, first, by
the additional amount which the holder of a share of Common Stock shall be
entitled to receive upon liquidation, dissolution or winding up of the
Corporation upon exercise of such right or warrant by virtue of the capital
stock which could be acquired upon such exercise and multiplied again by
the Discount Fraction. For purposes of this paragraph, the "Discount
Fraction" shall be a fraction the numerator of which shall be the
difference between the Fair Market Value of a share of the capital stock
subject to a right or warrant distributed to holders of shares of Common
Stock of the Corporation as contemplated by this paragraph immediately
after the distribution thereof and the purchase price per share for such
share of capital stock pursuant to such right or warrant and the
denominator of which shall be the Fair Market Value of a share of such
capital stock immediately after the distribution of such right or warrant.
(D) For purposes of this Certificate of Incorporation, the "Fair
Market Value" of a share of capital stock of the Corporation (including a
share of Common Stock) on any date shall be deemed to be the average of the
daily closing price per share thereof over the 30 consecutive Trading Days
(as such term is hereinafter defined) immediately prior to such date;
provided, however, that, in the event that such Fair Market Value of any
such share of capital stock is determined during a period which includes
any date that is within 30 Trading Days after (i) the ex- dividend date for
a dividend or distribution on stock payable in shares of such stock or
securities convertible into shares of such stock, or (ii) the effective
date of any subdivision, split, combination, consolidation, reverse stock
split or reclassification of such stock, then, and in each such case, the
Fair Market Value shall be appropriately adjusted by the Board of Directors
of the Corporation to take into account ex-dividend or post-effective date
trading. The closing price for any day shall be the last sale price,
regular way, or, in case, no such sale takes place on such day, the average
of the closing bid and asked
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prices, regular way (in either case, as reported in the applicable
transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange), or, if the shares are not
listed or admitted to trading on the New York Stock Exchange, as reported
in the applicable transaction reporting system with respect to securities
listed on the principal national secu- rities exchange on which the shares
are listed or admitted to trading or, if the shares are not listed or
admitted to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or if on any such date the
shares are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a
market in the shares selected by the Board of Directors of the Corporation.
The term "Trading Day" shall mean a day on which the principal national
securities exchange on which the shares are listed or admitted to trading
is open for the transaction of business or, if the shares are not listed or
admitted to trading on any national securities exchange, on which the New
York Stock Exchange or such other national securities exchange as may be
selected by the Board of Directors of the Corporation is open. If the
shares are not publicly held or not so listed or traded on any day within
the period of 30 Trading Days applicable to the determination of Fair
Market Value thereof as aforesaid, "Fair Market Value" shall mean the fair
market value thereof per share as determined in good faith by the Board of
Directors of the Corporation. In either case referred to in the foregoing
sentence, the determination of Fair Market Value shall be described in a
statement filed with the Secretary of the Corporation.
3.1.7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, com- bination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or secu- rities, cash and/or any other
property, then in any such case each outstanding share of Series A
Preferred Stock shall at the same time be similarly exchanged for or
changed into the aggregate amount of stock, securities, cash and/or
other property (payable in like kind), as the case may be, for which
or into which each share of Common Stock is changed or exchanged
multiplied by the highest of the Vote
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Multiple, the Dividend Multiple or the Liquidation Multiple in
effect immediately prior to such event.
3.1.8. Effective Time of Adjustments.
(A) Adjustments to the Series A Preferred Stock required by the
provisions hereof shall be effective as of the time at which the event
requiring such adjustments occurs.
(B) The Corporation shall give prompt written notice to each holder of
a share of Series A Preferred Stock of the effect of any adjustment to the
voting rights, dividend rights or rights upon liquidation, dissolution or
winding up of the Corporation of such shares required by the provisions
hereof. Notwithstanding the foregoing sentence, the failure of the
Corporation to give such notice shall not affect the validity of or the
force or effect of or the requirement for such adjustment.
3.1.9. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable at the option of the Corporation or any
holder thereof. Notwithstanding the foregoing sentence of this
Section, the Corporation may acquire shares of Series A Preferred
Stock in any other manner permitted by law, the provisions hereof
and the Certificate of Incorporation.
3.1.10. Ranking. Unless otherwise provided in the
Certificate of Incorporation or a Certificate of Designations
relating to a subsequent series of preferred stock of the
Corporation, the Series A Preferred Stock shall rank junior to
all other series of the Corporation's preferred stock as to the
payment of dividends and the dis- tribution of assets on
liquidation, dissolution or winding up and senior to the Common
Stock.
3.1.11. Amendment. The provisions hereof and the Certificate
of Incorporation shall not be amended in any manner which would
adversely affect the rights, privileges or powers of the Series A
Preferred Stock without, in addition to any other vote of
stockholders required by law, the affirmative vote of the holders
of two-thirds or more of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
3.1.12. Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share (in one one-
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hundredths (1/100) of a share and integral multiples
thereof) that shall entitle the holder thereof, in proportion to
such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and have the
benefit of all other rights of holders of shares of Series A
Preferred Stock.
ARTICLE VI
BOARD OF DIRECTORS
SECTION 1. Number of Directors. The number of Directors shall be fixed by
the bylaws of the Corporation, but shall not be less than six nor more than
seventeen.
SECTION 2. Powers of the Board of Directors. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors selected as provided by law and the Certificate of Incorporation and
the bylaws of the Corporation. In furtherance, and not in limitation, of the
powers conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized to:
(A) adopt, amend, alter, change or repeal bylaws of the Corporation;
provided, however, that no bylaw hereafter adopted shall invalidate any
prior act of the Corporation that would have been valid if such new bylaws
had not been adopted;
(B) subject to the bylaws as from time to time in effect, determine
the rules and procedures for the conduct of the business of the Board of
Directors and the management and direction by the Board of Directors of the
business and affairs of the Corporation, including the power to designate
and empower committees of the Board of Directors, to elect, or authorize
the appointment of, and empower officers and other agents of the
Corporation, and to determine the time and place of, the notice
requirements for, and the manner of conducting, Board meetings, as well as
other notice requirements for, and the manner of taking, Board action; and
(C) exercise all such powers and do all such acts as may be exercised
or done by the Corporation, subject to the provisions of the Corporation
Law and the
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Certificate of Incorporation and bylaws of the Corporation.
SECTION 3. Classified Board of Directors. The directors, other than those
who may be elected solely by the holders of shares of any class or series of
stock having a preference over the common stock of the Corporation as to
dividends or to distributions upon liquidation or dissolution and winding-up of
the Corporation pursuant to the terms of Article V of the Certificate of
Incorporation of the Corporation, shall be classified, with respect to the time
for which they severally hold office, into three classes, with each class to
hold office until its successors are elected and qualified. Subject to the
rights of the holders of any series of Preferred Stock, at each annual meeting
of the stockholders, the successors of the class of directors whose term expires
at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election.
SECTION 4. Vacancies. Except as otherwise required by law and subject to
the rights of the holders of any series of Preferred Stock, any vacancy in the
Board of Directors for any reason and any newly created directorship resulting
by reason of any increase in the number of directors may be filled only by the
Board of Directors (and not by the stockholders), by resolution adopted by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum (or by a sole remaining director); provided, however,
that if not so filled, any such vacancy shall be filled by the stockholders at
the next annual meeting or at a special meeting called for that purpose. Any
director so appointed shall hold office until the next meeting of stockholders
at which directors of the class for which such director has been chosen are to
be elected and until his or her successor is elected and qualified.
SECTION 5. Removal of Directors. Except as may be provided in respect of
any series of Preferred Stock pursuant to Article V with respect to any
directors elected solely by the holders of such series of Preferred Stock, any
director (including all members of the Board of Directors) may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least 80% of the voting power of all of the shares of capital
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stock of the Corporation then entitled to vote generally in the election of
directors, voting together as a single class. For the purposes of this Section
5, "cause" shall mean the wilful and continuous failure of a director to
substantially perform such director's duties to the Corporation (other than any
such failure resulting from incapacity due to physical or mental illness) or the
wilful engaging by a director in gross misconduct materially and demonstrably
injurious to the Corporation.
ARTICLE VII
STOCKHOLDER ACTIONS AND MEETINGS OF STOCKHOLDERS
Subject to the rights of the holders of any series of Preferred Stock, any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of such holders and
may not be effected by written consent in lieu of a meeting of such holders.
Subject to the rights of the holders of any series of Preferred Stock, special
meetings of stockholders of the Corporation may be called only by the Chairman
of the Board of Directors of the Corporation or the Board of Directors pursuant
to a resolution adopted by a majority of the members of the Board of Directors
then in office. Elections of directors need not be by written ballot, unless
otherwise provided in the bylaws. For purposes of all meetings of stockholders,
a quorum shall consist of a majority of the shares entitled to vote at such
meeting of stockholders, unless otherwise required by law or, in respect of a
meeting of the holders of any series of Preferred Stock, by the provisions of
Section 3 of Article V.
ARTICLE VIII
LIMITATION ON LIABILITY OF DIRECTORS
No person shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, including
without limitation for serving on a committee of the Board of Directors;
provided, however, that the foregoing shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing
17
violation of law, (iii) arising under Section 174 of the Corporation Law, or
(iv) for any transaction from which the director derived an improper personal
benefit. Any amendment, repeal or modification of this Article VIII shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
amendment, repeal or modification.
ARTICLE IX
CERTAIN BUSINESS COMBINATIONS
SECTION 1. Vote Required for Certain Business Combinations. Except as
otherwise expressly provided in Section 2 of this Article, in addition to any
affirmative vote required by law or by any other provision of the Certificate of
Incorporation of the Corporation, the affirmative vote of the holders of not
less than 80% of the outstanding shares of "Voting Stock" (as hereinafter
defined) of the Corporation voting together as a single class shall be required
for the approval or authorization of any "Business Combination" (as hereinafter
defined) of the Corporation with any "Related Person" (as hereinafter defined).
For the purpose of this Article:
(A) The term "Business Combination" shall mean (1) any merger or
consolidation of the Corporation or a Subsidiary (as hereinafter defined)
of the Corporation with or into a Related Person or of a Related Person
with or into the Corporation or a Subsidiary of the Corporation; (2) any
sale, lease, exchange, transfer, or other disposition, including, without
limitation, a mortgage or any other hypothecation or transfer as
collateral, of all or any "Substantial Part" (as hereinafter defined) of
the assets either of the Corporation (including, without limitation, any
voting securities of a Subsidiary) or of a Subsidiary of the Corporation to
a Related Person; (3) the issuance of any securities (other than by way of
a distribution to stockholders made pro rata to all holders of the class of
stock to receive the distribution) of the Corporation or a Subsidiary of
the Corporation to a Related Person; (4) the acquisition by the Corporation
or a Subsidiary of the Corporation of any securities of a Related Person;
(5) any recapitalization that would have the effect, directly or
indirectly, of increasing the voting power of a Related Person; (6) any
merger of
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the Corporation into a Subsidiary of the Corporation; or (7) any
agreement, contract, or other arrangement providing for any of the
transactions described in this definition of "Business Combination."
(B) The term "Continuing Director" shall mean any member of the Board
of Directors who is neither Affiliated (as defined below) nor Associated
(as defined below) with the Related Person and who was a member of the
Board of Directors prior to the time that the Related Person became a
Related Person, and any successor of a Continuing Director who is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then members of the Board of Directors.
(C) The term "Related Person" shall mean and include any individual,
corporation, partnership, or other person or entity which, together with
its "Affiliates" and "Associates," "Beneficially Owns" (as hereinafter
defined), in the aggregate ten percent (10%) or more of the outstanding
Voting Stock of the Corporation, and any Affiliate or Associate of any such
individual, corporation, partnership, or other person or entity.
(D) The term "Substantial Part" shall mean more than 80% of the book
value of the total consolidated assets of the Corporation as reported in
the consolidated financial statements of the Corporation and its
subsidiaries as of the end of its most recent fiscal year ending prior to
the time as of which a "Substantial Part" is to be determined.
(E) The term "Voting Stock" shall mean all outstanding shares of
capital stock of the Corporation entitled to vote generally in the election
of directors of the Corporation and each reference to a percentage of
shares of Voting Stock shall refer to such percentage of the votes entitled
to be cast by such shares.
(F) The terms "Affiliate" and "Associate" shall have the meanings set
forth in Rule 12b-2 under the Securities Exchange Act of 1934, as in effect
on the Effective Date (as defined in subsection 2.6).
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(G) The term "Beneficially Owns" shall have the meaning set forth in
Rule 13d-3 under the Securities Exchange Act of 1934, as in effect on the
Effective Date (as defined in subsection 2.6), provided, however, that, any
shares of Voting Stock of the Corporation that any Related Person has the
right to acquire pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed Beneficially
Owned by the Related Person whether immediately exercisable or exercisable
within ten years of the date as of which Beneficial Ownership is to be
determined.
(H) The term "Subsidiary" with respect to the Corporation shall mean
any corporation, partnership, limited liability company, business trust or
similar entity in which a majority of any class of any equity security is
owned directly or indirectly by the Corporation.
SECTION 2. When Higher Vote is Not Required. The provisions of Section 1 of
this Article shall not be applicable to any particular Business Combination and
such Business Combination shall require only such affirmative vote as may be
required by law or by any other provision of this Certificate of Incorporation
of the Corporation, if all of the conditions specified in either of the
following paragraphs (A) or (B) are met:
(A) the Business Combination shall have been approved by a vote of not
less than a majority of the Continuing Directors, or
(B) all of the following conditions shall have been met:
(1) The aggregate amount of cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the
Business Combination of the consideration, other than cash, to be
received per share by holders of Common Stock in such Business
Combination shall be at least equal to the highest of the following:
(a) if applicable, the highest price per share (including
any brokerage commissions, transfer taxes, and soliciting
dealers' fees) paid by the Related Person for
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any shares of Common Stock acquired by it (i) within the two
year period immediately prior to the first public announcement of
the proposal of the Business Combination (the "Announcement
Date") or (ii) in the transaction in which it became a Related
Person; or
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Related Person
became a Related Person (such latter date is referred to in this
Article as the "Determination Date"), whichever is higher; and
(2) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of the consideration, other than cash,
to be received per share by holders of shares of any class
or series of outstanding Voting Stock, other than Common
Stock, shall be at least equal to the highest of the
following (it being intended that the requirements of this
subparagraph (B)(2) shall be required to be met with respect
to every class or series of outstanding capital stock of the
Corporation other than Common Stock, whether or not the
Related Person has previously acquired any shares of such
class or series of Voting Stock):
(a) if applicable, the highest per share price
(including any brokerage commission, transfer taxes, and
soliciting dealers' fees) paid by the Related Person for any
shares of such class or series of Voting Stock acquired by
it (i) within the two year period immediately prior to the
Announcement Date or (ii) in the transaction in which it
became a Related Person, whichever is higher; or
(b) if applicable, the Redemption Price (as hereinafter
defined) of the shares of such class or series, or if such
shares have no Redemption Price, the highest amount per
share which such class or series would be entitled to
receive upon liquidation of the
21
Corporation on the Announcement Date or the
Determination Date, whichever is higher; or
(c) the Fair Market Value per share of such class or
series of Voting stock on the Announcement Date or on the
Determination Date, whichever is higher; and
(3) the consideration to be received in such Business
Combination by holders of each class or series of
outstanding Voting Stock (including Common stock) shall be
in cash or in the same form as the Related Person has
previously paid for shares of such class or series of Voting
Stock; provided, however, that if the Related Person has
paid for shares of any class or series of Voting Stock with
varying forms of consideration, the form of consideration
for such class or series of Voting Stock shall be either
cash or the form used to acquire the largest number of
shares of such class or series of Voting Stock previously
acquired by it; and
(4) a proxy statement responsive to the requirements of
the Securities Exchange Act of 1934, as amended, shall have
been mailed to public stockholders of the Corporation for
the purpose of soliciting stockholder approval of the
Business Combination and shall have contained at the front
thereof, in a prominent place, any recommendations as to the
advisability (or inadvisability) of the Business Combination
that the Continuing Directors, or any of them, may choose to
state and, if deemed advisable by a majority of the
Continuing Directors, an opinion of a reputable investment
banking firm as to the fairness (or not) of the terms of the
Business Combination, from the point of view of the
remaining public stockholders of the Corporation (such
investment banking firm to be selected by a majority of the
Continuing Directors and to be paid a reasonable fee for
their services by the Corporation upon receipt of the
opinion).
SECTION 3. Certain Definitions and Additional Provisions. For the purposes
of this Article:
(A) "Fair Market Value" shall mean:
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(1) in the case of stock, the highest closing sale price during
the 30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock Exchange
Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on
such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934, as amended, on
which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing bid quotation with respect to a
share of such stock during the 30-day period preceding the date in
question on the NASDAQ National Market or any quotations system then
generally in use, or, if no such quotations are available, the Fair
Market Value on the date in question of a share of such stock as
determined by the Continuing Directors in good faith, which
determination shall be final; and
(2) in the case of property other than cash or stock, the Fair
Market Value of such property on the date in question as determined by
the Continuing Directors in good faith, which determination shall be
final.
(B) The Board of Directors, with the approval of a majority of the
total number of Continuing Directors, shall have the power and duty to
determine, on the basis of information known to it after reasonable
inquiry, all facts necessary to determine compliance with this Article,
including, without limitation, (i) whether a person is a Related Person,
(ii) the number of shares of Voting Stock Beneficially Owned by any person,
(iii) whether a person is an Affiliate or Associate of another person,
(iv) whether the applicable conditions set forth in paragraph (B) of
Section 2 have been met with respect to any Business Combination, and
(v) whether the proposed transaction is a Business Combination. Any such
determinations shall be final.
SECTION 4. Amendment of this Article. This Article may be amended, altered,
changed, or repealed only by the affirmative vote of the holders of at least 80%
of the outstanding shares of Voting Stock voting together as a
23
single class unless the proposed amendment, alteration, change, or repeal
has been recommended to the stockholders by the Board of Directors with the
approval of at least two-thirds of the Continuing Directors, in which event the
proposed amendment, alteration, change, or repeal shall require for approval the
affirmative vote of the holders of at least 66 2/3% of the outstanding shares of
Voting Stock, voting as a single class.
ARTICLE X
BYLAWS
The Board of Directors shall have the power to adopt, amend, alter, change
or repeal bylaws of and for the Corporation by the affirmative vote of 662/3% of
the members then in office. The affirmative vote of the holders of at least 80%
of the voting power of all of the shares of capital stock of the Corporation
then entitled to vote generally in the election of directors, voting together as
a single class shall be required to adopt, amend, alter, change or repeal bylaws
of the Corporation (notwithstanding the fact that approval by a lesser
percentage may be permitted by the Corporation Law).
ARTICLE XI
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby reserves the right from time to time to amend,
alter, change or repeal any provision contained in the Certificate of
Incorporation of the Corporation in any manner permitted by the Corporation Law
and all rights and powers conferred upon stockholders, directors and officers
herein are granted subject to this reservation. In addition to any vote
otherwise required by law, and except as may otherwise be provided in Article V
or IX hereof, any such amendment, alteration, change or repeal shall require
approval of both (i) the Board of Directors by the affirmative vote of a
majority of the members then in office and (ii) the holders of a majority of the
voting power of all of the shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, except that any proposal to amend, alter, change or repeal the provisions
of Section 3 of Article VI, Section 5 of Article VI, Article VII, Article X and
this Article XI shall require the affirmative vote of the holders of 80% of the
voting power of all of the shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation which
restates, integrates and amends the provisions of the certificate of
incorporation of the Corporation, and which has been duly adopted by written
consent of the sole stockholder of the Corporation in accordance with the
provisions of Sections 228, 242 and 245 of the Delaware General Corporation Law,
has been executed by Thomas O. McGimpsey, its Assistant Secretary, this 12th day
of June, 1998.
U S WEST, INC.
/s/ THOMAS O. MCGIMPSEY
By:
Name: Thomas O. McGimpsey
Title: Assistant Secretary
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