EXHIBIT 3.9
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
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I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE
OF "WORLDPAGES.COM, INC." AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF INCORPORATION, FILED THE TWENTY-NINTH DAY OF SEPTEMBER,
A.D. 1997, AT 4:30 O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "NEW ACG, INC." TO
ADVANCED COMMUNICATIONS GROUP, INC.", FILED THE NINTH DAY OF OCTOBER, A.D. 1997,
AT 11:45 O'CLOCK A.M.
RESTATED CERTIFICATE, FILED THE NINTH DAY OF OCTOBER, A.D. 1997 , AT 3:10
O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE SEVENTEENTH DAY OF FEBRUARY, A.D.
1998, at 12:30 O'CLOCK P.M.
CERTIFICATE OF DESIGNATION, FILED THE SEVENTEENTH DAY OF FEBRUARY, A.D.
1998, AT 12:31 O'CLOCK P.M.
CERTIFICATE OF DESIGNATION, FILED THE EIGHTEENTH DAY OF FEBRUARY, A.D.
2000, AT 4:30 O'CLOCK P.M.
CERTIFICATE OF DESIGNATION, FILED THE TWENTY-THIRD DAY OF FEBRUARY, A.D.
2000, AT 9:15 O'CLOCK A.M.
/s/ Harriet Smith Windsor
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[SEAL] Harriet Smith Windsor,
Secretary of State
AUTHENTICATION: 1195838
DATE: 06-18-01
PAGE 2
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
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CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "ADVANCED COMMUNICATIONS
GROUP, INC." TO "WORLDPAGES.COM, INC.", FILED THE TWENTY- FOURTH DAY OF
FEBRUARY, A.D. 2000, at 10:01 O'CLOCK A.M.
CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-FIRST DAY OF DECEMBER, A.D.
2000, AT 9 O'CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID
CERTIFICATE OF OWNERSHIP IS THE THIRTY-FIRST DAY OF DECEMBER, A.D. 2000, AT 5
O'CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE
ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION.
/s/ Harriet Smith Windsor
--------------------------------------
[SEAL] Harriet Smith Windsor,
Secretary of State
AUTHENTICATION: 1195838
DATE: 06-18-01
CERTIFICATE OF INCORPORATION
OF
NEW ACG, INC.
ARTICLE I.
The name of the corporation is New ACG, Inc.
ARTICLE II.
The registered office of the corporation in the Stare of Delaware is
located at 1209 Orange Street in the City of Wilmington, County of New Castle.
The name of its registered agent is The Corporation Trust Company.
ARTICLE III.
The nature of the business or purposes to be conducted or promoted by the
corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV.
The total number of shares of stock which the corporation shall have
authority to issue is 1,000 shares of common stock, par value $.01 per share.
ARTICLE V.
The name and mailing address of the incorporator is as follows:
Name Mailing Address
David A. Tucker Bracewell & Patterson L.L.P.
South Tower Pennzoil Place
711 Louisiana, Ste. 2900
Houston, TX 77002
ARTICLE VI.
The powers of the incorporator shall terminate upon the filing of this
Certificate of Incorporation. The names and mailing addresses of the person who
is to serve as sole director until the first annual meeting of stockholders or
until their successors are elected and qualify are:
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Name Mailing Address
Rod K. Cutsinger 3355 West Alabama, Suite 580
Houston, Texas 77098
ARTICLE VII.
The number of directors of the corporation shall be as specified in, or
determined in the manner provided in, the Bylaws of the corporation, and such
number may be increased or decreased from time to time in such manner as may be
prescribed in the Bylaws.
ARTICLE VIII.
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 and
empowered to adopt, amend and repeal the Bylaws of the corporation, subject to
the power of the stockholders of the corporation to adopt, amend or repeal any
bylaw made by the Board of Directors.
ARTICLE IX.
Unless and except to the extent that the bylaws of the corporation shall
so require, the election of directors of the corporation need not be by written
ballot.
ARTICLE X.
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence 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, modification
or repeal.
IN WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, does hereby make and file this
Certificate of Incorporation, hereby declaring and certifying that the facts
herein stated are true, and accordingly has hereunto set the incorporator's hand
this 29th day of September, 1997.
/s/ David A. Tucker
--------------------------------------
David A. Tucker
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
New ACG, Inc. a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation"), DOES
HEREBY CERTIFY:
FIRST: That pursuant to Sections 24 and 108(c) of the General Corporation
Law of the State of Delaware. the sole director of the Corporation duly adopted
resolutions amending the Certificate of Incorporation of the Corporation filed
September 29. 1997 (the "Certificate of Incorporation") to change the name of
the Corporation to Advanced Communications Group, Inc. The resolutions setting
forth the amendment are as follows:
RESOLVED, that it is advisable and in the best interests of the
Corporation to change the name of the Corporation to Advanced
Communications Group, Inc. and to amend the Certificate of Incorporation
of the Corporation filed in the office of the Secretary of State of the
State of Delaware on September 29, 1997 (the "Certificate of
Incorporation") as set forth below; and further
RESOLVED that the name of the Corporation be changed from New ACG,
Inc. to Advanced Communications Group, Inc.; and further
RESOLVED, that Article I of the Certificate of Incorporation be
amended to read in its entirety as follows:
The name of the Corporation is Advanced Communications Group, Inc.
SECOND That the Corporation has not received any payment for any of its
stock.
THIRD That said amendment was duly proposed and adopted in accordance with
the provisions of Sections 241 and 108(c) of the General Corporation Law of the
State of Delaware
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Rod K Cutsinger, its President, as of the 7th day of October, 1997.
/s/ Rod K. Cutsinger
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Rod K. Cutsinger
President
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RESTATED CERTIFICATE OF INCORPORATION
OF
ADVANCED COMMUNICATIONS GROUP, INC.
The name of the corporation is Advanced Communications Group. Inc. (the
Corporation"). The name of the Corporation as originally incorporated was New
ACG, Inc. The original certificate of incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware (the "Secretary of State")
on September 29, 1997 and amended by an instrument filed with the Secretary of
State on October 9, 1997 to change the Corporation's name to Advanced
Communications Group, Inc. This Restated Certificate of incorporation amends and
restates the Corporation's original certificate of incorporation, and amended,
and was duly adopted in accordance with Section 241 and Section 245 of the
General Corporation Law of the State of Delaware. The Corporation certifies that
it has not authorized the issuance of any of its stock or received any payment
therefor.
ARTICLE I
The name of the Corporation is Advanced Communications Group, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, County of New Castle,
Wilmington, Delaware 19801. The name of the Corporation's registered agent at
such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
ARTICLE IV
Section 1. Authorized Capital. The Corporation shall be authorized to
issue two hundred million (200,000,000) shares of capital stock, of which one
hundred eighty million (180,000,000) shares shall be shares of Common Stock,
$.0001 par value per share ("Common Stock"). and twenty million (20,000,000)
shares shall be shares of Preferred Stock, $.0001 par value per share
("Preferred Stock").
Section 2. Preferred Stock. The Board of Directors is hereby expressly
authorized, subject to any limitations prescribed by applicable law, to provide
from time to time for the issuance of shares of Preferred Stock in one or more
series, and to determine the number of shares of each
series and to fix for each series of Preferred Stock such voting powers, full or
limited or no voting powers, and such designations, preferences and relative,
participating , optional or other special rights, and such qualifications,
limitations or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors or a duly authorized
committee thereof providing for the issue of such series.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(a) the designated number of shares of such series, which may
subsequently be increased or decreased (but not below the number of shares
of that series then outstanding) by resolution of the Board of Directors,
without the consent of the holders of any outstanding shares of Common
Stock or Preferred Stock, and the distinctive designation thereof;
(b) the voting powers, full or limited, if any, of the shares of
such series;
(c) the rights in respect of dividends on the shares of such
series, whether dividends shall be cumulative and, if so, from which date
or dates and the relative rights of priority, if any, of payment of
dividends on shares of such series and any limitations, restrictions or
conditions on the payment of dividends;
(d) the terms and conditions (including the price or prices which
may vary under different conditions and at different redemption dates), if
any, upon which all or any part of the shares of such series may be
redeemed, and any limitations, restrictions or conditions on such
redemption;
(e) the terms, if any, upon which the shares of such series shall
be convertible into or exchangeable for shares of any other class,
classes, or series, or other securities, whether or not issued by the
Corporation;
(f) the relative amounts, and the relative rights or priority, if
any, or payment in respect to shares of such series, which the holders of
the shares of such series shall be entitled to receive upon liquidation,
dissolution or winding up of the Corporation;
(g) the terms, if any, of any purchase, retirement or sinking fund
to be provided for the shares of such series;
(h) the restrictions, limitations and conditions, if any, upon
issuance of indebtedness and shares of the same series or of any other
class or series of the Corporation during the period any shares of such
series are outstanding; and
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(i) any other preferences and relative, participating, optional or
other rights or limitations not inconsistent with applicable law, the
provisions of this ARTICLE IV or any resolution of the Board of Directors,
or a duly authorized committee thereof, pursuant thereto.
Section 3. Reacquired Stock. Subject to the requirements of applicable
law, shares of any series of Preferred Stock which have been redeemed or
converted, or which have been issued and reacquired in any manner, and retired
shall have the status of authorized and unissued shares of Preferred Stock and
may be reissued by the Board of Directors as shares of the same or any other
series of Preferred Stock.
Section 4. No Preemptive Rights. No holder of any shares of Common Stock
or series of Preferred Stock, or any other security, option, warrant or right
issued by the Corporation, shall have any preemptive rights to subscribe to any
additional shares of Common Stock or any series of Preferred Stock, or any other
security, option, warrant or right issued by the Corporation, or any security
convertible into any series of Common Stock or Preferred Stock, or any other
security, option, warrant or right when now or hereinafter authorized or issued
by the Corporation, provided, however, subject to the rights of any holder of
Common Stock or any series of Preferred Stock, that pursuant to a resolution or
resolutions adopted by the Board of Directors, or any duly authorized committee
thereof, the Corporation may issue and dispose of any securities (including,
without limitation, Common Stock and Preferred Stock) convertible into or
carrying options, warrants or other rights to purchase or otherwise acquire any
other security or securities of the Corporation to such persons or other
entities and upon such terms and for such consideration as the Board of
Directors may determine and as may be permitted by applicable law, without
offering any such securities, either in whole or in part, to the existing
holders of any security of the Corporation.
Section 5. Exclusive Rights of Common Stock. Subject to the rights of the
holders of any series of Preferred Stock, and except as otherwise provided by
law, the Common Stock shall have the exclusive right to vote for the election of
directors of the Corporation (each a "Director") and for all other purposes. The
number of authorized shares of Common Stock and Preferred Stock may be increased
or decreased (but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority in voting power of the stock
of the Corporation entitled to vote thereon irrespective of the provisions of
Section 242(b)(2) of the General Corporation Law of the State of Delaware (or
any successor provision thereto), and no vote of the holders of either the
Common Stock or the Preferred Stock voting separately as a class shall be
required therefor.
Section 6. Voting Rights of Common Stock. Each outstanding share of Common
Stock shall entitle the holder thereof to one vote on each matter properly
submitted to the stockholders of the Corporation for their vote, consent,
waiver, release or other action.
Section 7. Record Holders. The Corporation shall be entitled to treat the
person in whose name any share of its stock is registered in the records of the
Corporation, or with any agent of the Corporation employed as the stock transfer
agent of the Corporation, as the owner thereof for all purposes, and the
Corporation shall not be bound to recognize any equitable or other claim to, or
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interest in, such share on the part of any other person or entity, whether or
not the Corporation shall have notice of such claim, except as expressly
provided by applicable law.
ARTICLE V
Section 1. Annual Meeting of Stockholders. The annual meetings of
stockholders of the Corporation (each a "Stockholder" and collectively,
"Stockholders") shall be held on such date and at such place and time as may be
fixed by resolution of the Board of Directors.
Section 2. Calling of Special Meetings of Stockholders. Subject to the
rights of the holders of any series of Preferred Stock, and to the requirements
of applicable law, special meetings of Stockholders may be called only by either
(a) the Chairman of the Board of Directors, or (b) by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of Directors
which the Corporation wold have if there were no vacancies or unfilled
newly-created directorships (the "Whole Board").
Notwithstanding any other provisions of this Restated Certificate of
Incorporation, and notwithstanding that a lesser percentage may be permitted
from time to time by applicable law, no provision of this Section 2 of ARTICLE V
may be altered, amended or repealed in any respect, nor may any provision
inconsistent therewith be adopted, unless such alteration, amendment, repeal or
adoption is approved by the affirmative vote of the holders of at least 80
percent of the combined voting power of the then outstanding shares of the
Corporation's stock entitled to vote generally in the election of Directors
("Voting Stock"), voting together as a single class.
Section 3. Chairman of Stockholder Meetings. Each annual and special
meeting of Stockholders shall he presided over by a Chairman, who shall have the
exclusive authority to, among other things, determine (a) whether business and
nominations have been properly brought before such meetings, and (b) the order
in which business and nominations properly brought before such meeting shall be
considered. The Chairman of each annual and special meeting shall be the
Chairman of the Board of Directors, or such person as shall be appointed by the
resolution approved by the majority of the Board of Directors.
Notwithstanding any other provisions of this Restated Certificate of
Incorporation, and notwithstanding that a lesser percentage may be permitted
from time to time by applicable law, no provision of this Section 3 of ARTICLE V
may be altered, amended or repealed in any respect. nor may any provision
inconsistent therewith be adopted, unless such alteration, amendment, repeal or
adoption is approved by the affirmative vote of the holders of at least 80
percent of the combined voting power of the outstanding shares of Voting Stock,
voting together as a single class.
Section 4. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
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(i) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the
Stockholders may be made at an annual meeting of Stockholders (A)
pursuant to the Corporation's notice of meeting, (B) by or at the
direction of the Board of Directors or (C) by any Stockholder who
was a Stockholder of record at the time of giving of notice provided
for in this Section, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section.
(ii) For nominations or other business to be properly brought
before an annual meeting by a Stockholder pursuant to Section
4(a)(i)(C) of this ARTICLE V, the Stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation and
such other business must otherwise be a proper matter for
Stockholder action. To be timely, a Stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th day nor
earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such anniversary
date, notice by the Stockholder to be timely must be so delivered
not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later
of the 60th day prior to such animal meeting or the tenth day
following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence
a new time period for the giving of a Stockholder's notice as
described above. Such Stockholder's notice shall set forth:
(A) as to each person whom the Stockholder proposes to
nominate for election or reelection as a Director all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of
Directors in an election contest, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
Rule 14a-l 1 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and
to serving as a Director if elected);
(B) as to any other business that the Stockholder
proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any
material interest in such business of such Stockholder and the
beneficial owner, if any, on whose behalf the proposal is
made; and
(C) as to the Stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (1) the name and address of such Stockholder,
as they appear on the Corporation's
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books, and of such beneficial owner, (2) the class and number
of shares of the Corporation which are owned beneficially and
of record by such Shareholder and such beneficial owner, and
(3) whether the proponent intends (or is part of a group which
intends) to solicit proxies from other stockholders in support
of such nomination or proposal.
(iii) Notwithstanding anything in the second sentence of
Section 4(a)(ii) of this ARTICLE V to the contrary, in the event
that the number of Directors to be elected to the Board of Directors
is increased and there is no public announcement by the Corporation
naming all of the nominees for Director or specifying the size of
the increased Board of Directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a Stockholder's
notice required by this Section shall also be considered timely, but
only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of Stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made
at a special meeting of Stockholders at which Directors are to be elected
pursuant to the Corporations notice of meeting (a) by or at the direction
of the Board of Directors or (b) provided that the Board of Directors has
determined that Directors shall be elected at such meeting, by any
Stockholder who is a Stockholder of record at the time of giving of notice
provided for in this Section 4, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this
Section 4. In the event the Corporation calls a special meeting of
Stockholders for the purpose of electing one or more Directors to the
Board of Directors, any such Stockholder may nominate a person or persons
(as the case may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the Stockholder's notice required by
Section 4(a)(ii) of this ARTICLE V shall be delivered to the Secretary at
the principal executive offices of the Corporation not earlier than the
close of business on the 90th day prior to such special meeting and not
later than the close of business on the later of the 60th day prior to
such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
In no event shall the public announcement of an adjournment of a special
meeting commence a new time period for the giving of a Stockholder's
notice as described above.
(c) General.
(i) Only such persons who are nominated in accordance with
the procedures set forth in this Section 4 shall be eligible to
serve as Directors and only such business shall be conducted at a
meeting of Stockholders as shall have been
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brought before the meeting in accordance with the procedures set
forth in this Section 4. Except as otherwise provided by applicable
law, the Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be,
in accordance with the procedures set forth in this Section 4 and,
if any proposed nomination or business is not in compliance with
this Section 4, to declare that such defective proposal or
nomination shall be disregarded.
(ii) For purposes of this Section 4, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service
or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
4, a Stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 4. Nothing in this
Section 4 shall be deemed to affect any rights.
(A) of Stockholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act; or
(B) of the holders of any series of Preferred Stock to
elect Directors under specified circumstances.
Notwithstanding any other provisions of this Restated Certificate of
Incorporation, and notwithstanding that a lesser percentage may be permitted
from time to time by applicable law, no provision of this Section 4 of ARTICLE V
may be altered, amended or repealed in any respect, nor may any provision
inconsistent therewith be adopted, unless such alteration, amendment, repeal or
adoption is approved by the affirmative vote of the holders of at least 80
percent of the combined voting power of the then outstanding shares of Voting
Stock, voting together as a single class.
Section 5. Election of Directors.
(a) Method of Election. Election of Directors at all meetings of
the Stockholders at which Directors are to be elected need not be by
written ballot and instead may be made by voice vote.
(b) Required Vote. At all meetings of Stockholders at which
Directors are to be elected, a plurality of the combined voting power of
the then outstanding shares of Voting Stock cast thereat shall elect
Directors. Each share of Common Stock shall be entitled to one vote, in
person or by proxy. Each share of any series of Preferred Stock shall be
entitled to that number of votes as designated by the Board of Directors
in the resolution
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establishing such issuance or series. Cumulative voting for the election
of Directors is expressly not permitted.
Section 6. Elections Other Than For Directors.
(a) Method of Voting. Unless and except to the extent that the
By-Laws of the Corporation shall so require, all voting by Stockholders,
except the election of Directors of the Corporation, need not be by
written ballot and instead may be made by voice vote.
(b) Required Vote. Subject to the rights of holders of any series
of Preferred Stock, and except as otherwise provided by law, applicable
stock exchange rules or this Restated Certificate of Incorporation, in all
matters other than the election of Directors, the affirmative vote of a
majority of the shares present in person or represented by proxy at the
meeting and entitled to vote on the matter shall be the act of the
Stockholders.
Section 7. Inspectors of Elections: Opening and Closing the Polls. To the
extent required by applicable law, the Board of Directors by resolution shall
appoint one or more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives, to act at the
meetings of Stockholders and make a written report thereof. One or more persons
may be designated as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate has been appointed to act or is able to act at
a meeting of Stockholders, the Chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting the date
and time of the opening and the closing of the polls for each matter upon which
the Stockholders will vote at a meeting.
Section 8. Stockholder Inspection of Corporate Records. Except as
otherwise provided by applicable law, the Board of Directors shall have the
power to determine from time to time whether and, if allowed, under what
conditions, circumstances and regulations the books and records of the
Corporation shall be open to inspection by the Stockholders, and the
Stockholders' ability to inspect any of the books and records or any other
document of the Corporation are and shall be restricted or limited according to
the determination of the Board of Directors.
Section 9. No Stockholder Action by Written Consent. Subject to the rights
of the holders of any series of Preferred Stock, any action required or
permitted to be taken by the Stockholders must be effected at a duly called
annual or special meeting of Stockholders and may not be effected without such a
meeting by any consent in writing by such holders.
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Notwithstanding any other provisions of this Restated Certificate of
Incorporation, and notwithstanding that a lesser percentage may be permitted
from time to time by applicable law, no provision of this Section 9 of ARTICLE V
may be altered, amended or repealed in any respect, nor may any provision
inconsistent therewith be adopted, unless such alteration, amendment. repeal or
adoption is approved by the affirmative vote of the holders of at least 80
percent of the combined voting power of the then outstanding shares of Voting
Stock, voting together as a single class.
Notwithstanding any other provision of this Restated Certificate of
Incorporation. Section 9 of ARTICLE V shall only become effective upon the
consummation of the Corporation's initial underwritten public offering of its
Voting Stock
ARTICLE VI
Section 1. Corporate Governance. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors.
Section 2. Number. Subject to the rights of the holders of any series of
Preferred Stock, the number of Directors constituting the Whole Board of
Directors shall not be less than three nor more than twelve. Subject to the
rights of the holders of any series of Preferred Stock, the number of Directors
shall be fixed from time to time exclusively pursuant to a resolution adopted by
a majority of the Whole Board.
Section 3. Qualifications.
(a) No person shall be nominated for election, nor elected, as a
Director of the Corporation if such person (i) has attained the age of 80
as of such nomination or election1, or (ii) will attain the age of 80
prior to the expiration of the term of office he is being nominated or
elected for.
(b) No person may be a Director of the Corporation after
conviction of any offense under applicable law punishable by a term of
imprisonment exceeding one year or by death during the period after such
conviction that such person in connection with such conviction is
incarcerated, on parole, subject to court order or supervision, or subject
to supervision of any agency of a state or the federal government.
Section 4. Tenure. Commencing with the first annual meeting of
Stockholders, the Directors, other than those who may be elected by the holders
of any series of Preferred Stock, shall be divided, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as is reasonably possible, with the term of office of the first class to expire
at the second annual meeting of Stockholders, the term of office of the second
class to expire at the third annual meeting of Stockholders and the term of
office of the third class to expire at the fourth annual meeting of
Stockholders, with each Director to hold office until his or her successor shall
have been duly elected and qualified. At each annual meeting of Stockholders,
commencing with the second annual meeting, (i) Directors elected to succeed
those Directors whose terms then expire shall be
9
elected for a term of office to expire at the third succeeding annual meeting of
Stockholders after their election, with each Director to hold office until his
or her successor shall have been duly elected and qualified, and (ii) if
authorized by a resolution of the Board of Directors. Directors may be elected
to fill any vacancy on the Board of Directors, regardless of how such vacancy
shall have been created.
Section 5. Vacancies. Subject to applicable law and the rights of the
holders of any series of Preferred Stock, vacancies resulting from death,
resignation. retirement, disqualification removal from office or other cause,
and newly created directorships resulting from any increase in the authorized
number of Directors, may be filled by the affirmative vote of a majority of the
remaining Directors, though less than a quorum of the Board of Directors, and
Directors so chosen shall hold office for a term expiring at the annual meeting
of Stockholders at which the term of office of the class to which they have been
elected expires and until such Director's successor shall have been duly elected
and qualified. No decrease in the number of authorized Directors constituting
the Whole Board shall shorten the term of any incumbent Director.
Section 6. Removal. Subject to the rights of the holders of any series of
Preferred Stock, any Director, or the entire 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 percent of the combined voting power of the then
outstanding shares of Voting Stock, voting together as a single class.
Section 7. Rights of Classes Separately to Elect Directors.
Notwithstanding anything else contained in this Restated Certificate of
Incorporation, whenever holders of any one or more series of Preferred Stock
shall have the right, voting separately by class, classes or series, to elect
Directors at any annual or special meeting of Stockholders, the election, term
of office, filling of vacancies and other features of such directorships shall
be governed by the provisions of this Restated Certificate of Incorporation,
including any applicable resolutions of the Board of Directors adopted pursuant
to ARTICLE IV hereof. Directors so elected shall not be divided into classes and
shall be elected by such holders annually unless expressly provided otherwise by
those provisions or resolutions and, during the prescribed terms of office of
those Directors, the Board of Directors shall consist of a number of Directors
equal to the number of those Directors plus the number of Directors determined
as provided in Section 2 of ARTICLE VI.
Section 8. Amendment. Notwithstanding any other provisions of this
Restated Certificate of Incorporation and notwithstanding that a lesser
percentage may be permitted from time to time by applicable law, no provision of
this ARTICLE VI may be altered, amended or repealed in any respect, nor may any
provision inconsistent therewith be adopted, unless such alteration, amendment,
repeal or adoption is approved by the affirmative vote of the holders of at
least 80 percent of the combined voting power of the then outstanding shares of
Voting Stock, voting together as a single class.
ARTICLE VII
10
Section 1. Director Amendment of By-Laws. In furtherance and not in
limitation of the powers conferred by applicable law, the Board of Directors is
expressly authorized and empowered to make, alter, amend and repeal any or all
of the provisions of the By-Laws of the Corporation by a majority vote at any
regular or special meeting of the Board of Directors or by written consent.
Section 2. Stockholder Amendment of By-Laws . Stockholders shall have the
power to make, alter, amend and repeal the By-Laws of the Corporation by the
affirmative vote of the holders of at least 80 percent of the combined voting
power of the then outstanding shares of Voting Stock, voting together as a
single class.
ARTICLE VIII
Section 1. Elimination of Certain Liability of Directors. A Director of
the Corporation shall not be personally liable to the Corporation or its
Stockholders 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 or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the Director derived an improper personal benefit. No
amendment, alteration or repeal of, nor the adoption of any provision
inconsistent with, any provision of this Section 1 of ARTICLE VIII, which shall
in any manner increase the actual or potential liability of any Director of the
Corporation, shall apply to or have any effect on the liability or alleged
liability of any such Director for or with respect to actions or omissions of
such Director occurring prior to such amendment, alteration, repeal or adoption.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he
or she, or a person of whom be or she is the legal representative, is or
was a Director or officer of the Corporation or, while a Director or
officer of the Corporation, is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the
basis of such proceeding is alleged action in an official capacity as a
Director, officer, employee or agent or in any other capacity while
serving as a Director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by
the General Corporation Law of the State of Delaware, as the same exists
or may hereafter be amended, against all expense, liability and loss
(including attorneys' fees, judgments, fines, amounts paid or to be paid
in settlement, and excise taxes or penalties arising under the Employee
Retirement Income Security Act of 1974) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a
11
Director or officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided
in paragraph (b) hereof, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification
conferred in this Section shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition: provided, however,
that, if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a Director or officer in his or
her capacity as a Director or officer (and not in any other capacity in
which service was or is rendered by such person while a Director or
officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf
of such Director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such Director or officer is not entitled to
be indemnified under this Section or otherwise. The Corporation may, by
action of the Board of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of Directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph
(a) of this Section is not paid in full by the Corporation within 30 clays
after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it
permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent
legal counsel, or its Stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard of conduct set forth in the General Corporation Law of the Stare
of Delaware, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel, or its Stockholders) that
the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Section shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, provision of this Restated Certificate of Incorporation, By-Laws,
agreement, vote of Stockholders or disinterested Directors of the
Corporation or otherwise.
12
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any Director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any such expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation Law
of the State of Delaware.
(e) Amendment. No amendment, alteration or repeal of, nor the
adoption of any provision inconsistent with, any provision of Section 2 of
ARTICLE VIII, which shall in any manner increase the actual or potential
liability of any Director of the Corporation shall apply to or have any
effect on the liability or alleged liability of any such Director for or
with respect to actions or omissions of such Director occurring prior to
such amendment, alteration, repeal or adoption.
Section 3. Amendment. Notwithstanding any other provisions of this
Restated Certificate of Incorporation, and notwithstanding that a lesser
percentage may be permitted from time to time by applicable law, no provision of
this ARTICLE VIII may be altered, amended or repealed in any respect, nor may
any provision inconsistent therewith be adopted, unless such alteration,
amendment, repeal or adoption is approved by the affirmative vote of the holders
of at least 80 percent of the combined voting power of the then outstanding
shares of Voting Stock, voting together as a single class.
ARTICLE IX
The Corporation reserves the right at any time from time to time to amend,
alter, change or repeal any provision contained in this Restated Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by applicable law; and all rights, preferences and
privileges of whatsoever nature conferred upon Stockholders, Directors or any
other persons whomsoever by and pursuant to this Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the right reserved in this ARTICLE LX.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by Rod K. Cutsinger, its Chairman of the Board,
President and Chief Executive Officer, this 9th day of October, 1997.
By: /s/ Rod Cutsinger
-----------------------------------
Rod K. Cutsinger
13
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Advanced Communications Group, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Company"), DOES HEREBY CERTIFY;
FIRST: That pursuant to Section 242(b) of the General Corporation Law of
the State of Delaware ("GCL"), the directors of the Company duly and unanimously
adopted resolutions proposing the amendment of the Restated Certificate of
Incorporation of the Company filed October 9, 1997 (the "Restated Certificate"),
declaring such amendment to be advisable and submitting such amendment to the
sole stockholder for consideration, and the sole shareholder of the Company
approved such resolutions by written consent pursuant to Section 228 of the GCL.
The resolutions setting forth the amendment are as follows:
RESOLVED, that the Restated Certificate be amended by changing
Article VI, Section 3, by deleting the word "twelve" and substituting the
word "fourteen", and further
RESOLVED, that Article VI, Section 4, of the Restated Certificate be
amended by deleting such section and replacing it in its entirety by the
following:
Section 4. Tenure, Effective upon the due consummation of the
Corporation's initial underwritten public offering of its Voting
Stock, the Directors, other than those who may be elected by the
holders of any series of Preferred Stock, shall be divided, with
respect to the time for which they severally hold office, into three
classes, as nearly equal in number as is reasonably possible, with
the tern of office of the first class to expire at the next annual
meeting of Stockholders thereafter, the term of office of the second
class to expire at the second annual meeting of Stockholders
thereafter and the term of office of the third class to expire at
the third annual meeting of Stockholders thereafter, with each
Director to hold office until his or her successor shall have been
duly elected and qualified. At each annual meeting of Stockholders,
commencing with such first annual meeting after such initial
underwritten public offering, (i) Directors elected to succeed those
Directors whose terms then expire
shall be elected for a term of office to expire at the third
succeeding annual meeting of Stockholders after their election, with
each Director to hold office until his or her successor shall have
been duly elected and qualified, and (ii) if authorized by a
resolution of the Board of Directors, Directors may be elected to
fill any vacancy on the Board of Directors, regardless of how such
vacancy shall have been created.
SECOND: That said amendment was duly proposed and adopted in accordance
with the provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this certificate to be signed
by William H. Zimmer III, its Executive Vice President, as of the 17th day of
February, 1998.
Advance Communications Group, Inc.
By: /s/ William H. Zimmer III
-----------------------------------
Name: William H. Zimmer III
Title: Executive Vice President
2
CERTIFICATE OF DESIGNATIONS
OF
SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK
OF
ADVANCED COMMUNICATION GROUP, INC.
Advanced Communications Group, Inc., a Delaware corporation (the
"Corporation"), does hereby certify that the following resolution was duly
adopted on February 11, 1998 by the Board of Directors of the Corporation (the
"Board of Directors") at a meeting duly convened and held pursuant to authority
conferred upon the Board of Directors by the provisions of the Certificate of
Incorporation of the Corporation that authorize the issuance of up to 20,000,000
shares of preferred stock, par value $.0001 per share ("Preferred Stock"):
BE IT RESOLVED, that the issuance of a series of Preferred Stock of
Advanced Communications Group, Inc. (the "Corporation") is hereby
authorized, and the designation, powers, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions thereof, of the shares of said series, in
addition to these set forth in the Certificate of Incorporation of the
Corporation, are hereby fixed as follows:
SECTION 1. DESIGNATION. The distinctive serial designation of said
series shall be "Series A Redeemable Convertible Preferred Stock"
(hereinafter called "Series A"). Each share of Series A shall be
identical in all respects with all other shares of Series A.
SECTION 2. NUMBER OF SHARES. The number of shares in Series A shall
be 142,857, which number may from time to time be increased (but not
in excess of the total number of authorized shares of Preferred
Stock) or decreased (but not below the number of shares of Series A
then outstanding) by the Board of Directors. Shares of Series A that
are redeemed, purchased or otherwise acquired by the Corporation or
converted into Common Stock shall be cancelled and shall revert to
authorized but unissued shares of Preferred Stock undesignated as to
series.
SERIES 3. DEFINITIONS. As used herein with respect to Series A, the
following terms shall have the following meanings:
(a) The term "junior stock" shall mean the Common Stock and any
other class or series of stock of the Corporation hereafter
authorized over which Series A has preference or priority in
the distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
(b) The term "parity stock" shall mean any other class or series
of stock of the Corporation hereafter authorized which ranks
on a parity with Series A in the distribution of assets on any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation.
(c) The term "senior stock" shall mean any other class or series
of stock of the Corporation hereafter authorized which ranks
ahead of the Series A in the distribution of assets on any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation.
(d) The term "business day" shall mean each Monday, Tuesday,
Wednesday, Thursday or Friday on which banking institutions in
New York City are not authorized or obligated by law or
executive order to close
SECTION 4. DIVIDENDS. The holders of shares of Series A shall not be
entitled to receive, nor shall the Board of Directors declare,
dividends on the shares of Series A.
SECTION 5. LIQUIDATION RIGHTS. In the event of any voluntary and
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, then, before any distribution or payment shall be
made to the holders of any junior stock, but after all distributions
and payments shall be made to the holders of senior stock, the
holders of shares of Series A shall be entitled to be paid in full
an amount equal to $14.00 per share (the "Liquidation Amount").
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, the assets
distributable to the holders of Series A and the holders of all
parity stock shall be insufficient to permit the payment in full to
such holders of all preferential amounts payable to them, then the
entire assets of the Corporation then distributable, after
distribution of amounts payable with respect to the senior stock,
shall be distributed ratably among the holders of Series A and the
holders of all parity stock in proportion to the respective amounts
that would be payable on a per share basis if such assets were
sufficient to permit payment in full of all preferential amounts.
If the Liquidation Amount shall have been paid in full to each
holder to shares of Series A, the remaining assets of the
Corporation shall be distributed among the holders of junior stock,
according to their respective rights and preferences and in each
case according to their respective number of shares.
For the purposes of this Section 5, the consolidation or merger of
the Corporation with any other corporation shall not be deemed to
constitute a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation.
2
SECTION 6. REDEMPTION. If, by February 18, 1999, the Corporation and
Northwestern Public Service Company, a Delaware corporation, have
not entered into the written Strategic Alliance Agreement
contemplated by the letter agreement among the Corporation,
Northwestern Public Service Company and Northwestern Growth
Corporation dated January 15, 1998, then the Corporation, at the
option of the board of Directors, may redeem in whole the shares of
Series A upon notice given in hereinafter specified, at a redemption
price per share equal to 62.,5% of the Liquidation Amount. If, by
March 18, 1999, the Corporation shall not have mailed notice of the
redemption of all shares of Series A as provided below, then the
Corporation's right to redeem the Series A shall there upon expire.
Notice of every redemption of shares of Series A shall be mailed by
first class mail, postage prepaid, addressed to the holders of
record of the shares to be redeemed at their respective last
addresses as they shall appear on the books of the Corporation. Such
mailing shall be at least five days and not more than 30 days prior
to the date fixed for redemption. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given, whether or not the stockholder receives such notice, and
failure duly to give such notice by mail, or any defect in such
notice, to any holder of shares of Series A designated for
redemption shall not affect the validity of the proceedings for the
redemption of any other shares of Series A.
If notice of redemption shall have been duly given, and if on or
before the redemption date specified therein all funds necessary for
such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares called for redemption, so as to
be and continue to be available therefor, then, notwithstanding that
any certificate for shares so called for redemption shall not have
been surrendered for cancellation, on and after such redemption
date, all shares so called for redemption shall no longer be deemed
outstanding and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only
the right of the holders thereof to receive the amount payable on
redemption thereof, without interest. Any funds so deposited and
unclaimed at the end of three years from such redemption date shall,
to the extent permitted by law, be released or repaid to the
Corporation, after which time the holders of the shares so called
for redemption shall look only to the Corporation for payment
thereof.
SECTION 7. CONVERSION RIGHTS. Each holder of shares of Series A
shall have the right, at such holder's option, to convert such
shares of Common stock of the Corporation at any time following
August 18, 1999, on and subject to the following terms and
conditions:
(a) Each share of Series A shall be convertible at the principal
office of the Corporation and at such other office or offices,
if any, as the Board of
3
Directors may designate, into such number of fully paid and
nonassessable shares (calculated as to each conversion to the
nearest 1/100th of a share) of Common Stock of the
Corporation, as shall be determined by dividing the
Liquidation Amount by the "conversion price"; provided,
however, that the conversion price shall be adjusted in
certain instances as provided in paragraph (d) below. The
conversion price in initially the Liquidation Amount.
(b) In order to convert shares of Series A into Common Stock the
holder there of shall surrender at the office or offices
hereinabove mentioned the certificate or certificates
therefor, duly endorsed or assigned to the Corporation or in
blank, and give written notice to the Corporation at said
office or offices that such holder elects to convert such
shares. No payment or adjustment shall be made upon any
conversion on account of any unpaid or accrued dividends on
account of any dividends on the Common Stock issued upon
conversion.
Shares of Series A shall be deemed to have been converted
immediately prior to the close of business on the day of the
surrender of the certificates for such shares for conversion
in accordance with the foregoing provisions, and the person or
persons entitled to receive the Common Stock issuable upon
such conversion shall be treated for all purposes as the
record holder or holders of such common Stock at such time. As
promptly as practicable on or after the conversion date, the
Corporation shall issue and shall deliver at such office a
certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion, together with
payment in lieu of any fraction of a share, as hereinafter
provided, to the person or persons entitled to receive the
same.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of Series A, but, instead of any fraction
of a share which would otherwise be issuable, the Corporation
shall pay cash in respect of such fraction in an amount equal
to the same fraction of the Closing Price (as defined below)
on the date on which the certificate or certificates for such
shares were duly surrendered for conversion, or, if such date
is not a Trading Day (as defined below), on the next Trading
Day.
(d) The conversion price shall be deemed to be proportionately
adjusted from time to time as follows:
(i) In case the Corporation shall (A) pay a dividend or make
a distribution on its outstanding Common Stock in shares
of its capital stock, (B) subdivide its outstanding
Common Stock into a greater number of shares, (C)
combine its outstanding Common Stock into a small number
of shares or (D) issue by reclassification of its
4
Common Stock (whether pursuant to a merger or
consolidation or otherwise) any other shares of the
Corporation, the holder of any shares of Series A
surrendered for conversion after the record date fixed
by the Board of Directors for such dividend,
distribution, subdivision, combination or
reclassification shall be entitled to receive the
aggregate number and kind of shares of capital stock of
the Corporation which, if such shares of Series A had
been converted immediately prior to such record date at
the conversion price then in effect, such holder would
have been entitled to receive the virtue of such
dividend, distribution, subdivision, combination or
reclassification; and the conversion price shall be
deemed to have been adjusted after such record date to
apply to such aggregate number and kind of shares. Such
adjustment shall be made whenever any of the events
listed above shall occur.
(ii) In case the Corporation shall fix a record date for
issuing to all holders of Common Stock rights or
warrants expiring within 45 days entitled them to
subscribe for or purchase Common Stock at a price per
share less than the current market price per share (as
determined pursuant to clause (iv) below) on such record
date, the conversion price in effect from and after such
record date shall be reduced so that it shall be equal
to the price determined by multiplying the conversion
price in effect immediately prior to such record date by
a fraction, of which the numerator shall be the number
of shares of Common Stock outstanding on such record
date plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares
of Common Stock so offered for subscription or purchase
would purchase at such current market price and of which
the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of
additional shares of Common Stock so offered for
subscription or purchase. For the purpose of this clause
(ii), the issuance of rights or warrants to subscribe
for or purchase securities convertible into Common Stock
shall be deemed to be the issuance of rights or warrants
to purchase the common Stock into which such securities
are convertible at an aggregate offering price equal to
the aggregate offering price of such securities plus the
minimum aggregate amount (if any) payable upon
conversion of such securities into Common Stock. Such
adjustment shall be made successively whenever such a
record date is fixed. In case such rights or warrants
are not issued after such a record date has been fixed,
the conversion price shall be readjusted to the
conversion price which would have been in effect if such
record date had not been fixed.
5
(iii) In case the Corporation shall fix a record date for the
distribution to all holders of Common Stock (whether
pursuant to a merger or consolidation or otherwise) or
assets (excluding cash dividends out of retained
earnings), or rights to subscribe (excluding those
referred to in clause (ii) above), then in each such
case the conversion price in effect from and after such
record date shall be adjusted so that the same shall be
equal to the price determined by multiplying the
conversion price in effect immediately prior to such
record date by a fraction, of which the numerator shall
be the current market price per share (determined as
provided in clause (iv) below) of the Common Stock on
such record date less the fair market value (as
determined by the Board of Directors, whose
determination in good faith shall be conclusive) of the
portion of the evidences of indebtedness or assets so
distributed or of such rights to subscribe applicable to
one share of Common Stock and of which the denominator
shall be such current market price per share of Common
Stock. Such adjustment shall be made whenever any such
record date is fixed. In case such distribution is not
made after such a record date has been fixed, the
conversion price shall be readjusted to the conversion
price which would have been in effect if such record
date had not been fixed.
(iv) For the purpose of any computation under clauses (ii)
and (iii) above, the current market price per share of
Common Stock on any date shall be deemed to be the
average of the daily Closing Prices for 30 consecutive
Trading Days selected by the Corporation commencing not
less than 10 nor more than 45 Trading Days before the
date in question.
(v) In case the Corporation shall be a party to any
transaction (including, without limitation, a merger,
consolidation, sale of all or substantially all of the
Corporation's assets, liquidation of recapitalization of
the Common Stock, but excluding any transaction to which
clauses (i), (ii) or (iii) above applies) in which the
previously outstanding Common Stock shall be changed
into or exchanged for different securities of the
Corporation or common stock or other securities of
another corporation or interests in a noncorporate
entity or other property (including cash) or any
combination of any of the foregoing, then, as a
condition of the consummation of such transaction,
lawful and adequate provision shall be made so that each
holder of shares of Series A shall be entitled upon
conversion, to an amount per share of Series A equal to
(A) the aggregate amount of stock, securities, cash or
any other property (payable in kind), as the case may
be, into which or for which or for which each share of
Common Stock is changed or exchanged, times (B) the
number of shares of Common
6
Stock into which a share of Series A is convertible
immediately prior to the consummation of such
transaction.
(vi) In any case in which the subsection (d) shall require
that an adjustment as a result of any event become
effective from and after a record date, the Corporation
may elect to defer until after the occurrence of such
event (A) issuing to the holder of any shares of Series
A converted after such record date and before the
occurrence of such event the additional shares of
Common Stock issuable upon such conversion over and
above the shares issuable on the basis of the
conversion price in effect immediately prior to
adjustment and (B) paying to such holder any amount in
cash in lieu of a fractional share of Common Stock
pursuant to subsection (c) above. In lieu of the shares
of the issuance of which is deferred pursuant to item
(A) above, the Corporation shall issue or cause one of
its transfer agents to issue due bills or other
appropriate evidence of the right to receive such
shares.
(vii) Any adjustment in the conversion price otherwise
required by this section 7 to be made may be postponed
until the date of the next adjustment otherwise
required to be made if such adjustment (together with
any other adjustments postponed pursuant to this
paragraph (vii) and not theretofore made) would not
require an increase or decrease or more than 1% in such
price. All calculations under this subsection (d) shall
be made to the nearest cent or to the nearest 1/100th
of a share as the case may be.
(viii) In the case at any time as a result of an adjustment
made pursuant to paragraph (i) above, the holder of any
shares of Series A thereafter surrendered for
conversion shall become entitled to receive any shares
of capital stock of the Corporation other than Common
Stock, thereafter the number of such other shares so
receivable upon conversion of such shares of Series A
shall be subject to adjustment form time to time in a
manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Common Stock
contained in paragraphs (i) to (vii), inclusive, above,
and the other provisions of this subsection (d) with
respect to the Common Stock shall apply on like terms
to any such other shares.
(ix) The Board of Directors may in its discretion make such
reductions in the conversion price, in addition to
those required by this subsection (d), as shall be
determined by a Board of Directors to be advisable in
order to avoid taxation so far as practicable of any
dividend of stock or stock rights or any event treated
as such for Federal income tax
7
purposes to the recipients. The Board of Directors shall
have the power to resolve any ambiguity or correct any
error in this subsection (d), and its action in so doing
shall be final and conclusive.
(e) Whenever the conversion price is adjusted as herein provided:
(i) The Corporation shall compute the adjusted conversion
price in accordance with this Section 7 and shall cause
to be prepared a certificate signed by the Corporation's
treasurer setting forth the adjusted conversion price
and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall
forthwith be filed with each transfer agent for the
shares of Series A; and
(ii) A notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price
shall, as soon as practicable, be mailed to the holders
of record of outstanding shares of Series A.
(f) In case:
(i) The Corporation shall declare a dividend or other
distribution on its Common Stock payable otherwise than
in cash out of retained earnings or obligations to pay
cash out of retained earnings; or
(ii) The Corporation shall authorize the issuance to the
holders of its Common Stock of rights or warrants
entitling them to subscribe for or purchase any shares
of capital stock or any class or any other subscription
rights or warrants; or
(iii) Of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of
its outstanding shares of Common Stock), or of any
consolidation or merger to which the Corporation is a
party and for which approval of any stockholder of the
Corporation is required, or of the sale, transfer or
other disposition of all or substantially all of the
assets of the Corporation; or
(iv) Of the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation;
then the Corporation shall cause to be filed with each
transfer agent for the shares of Series A and shall cause to
be mailed to the holders of record of the outstanding shares
of Series A, at least 20 days (other 10 days in any case
specified in clause (i) or (ii) above) prior to the applicable
record or effective
8
date hereinafter specified, a notice stating (x) the date as
of which the holders of record of Common Stock to be entitled
to such dividend, distribution, rights or warrants are to be
determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, disposition,
liquidation, dissolution or winding up is expected to become
effective, and the date a of which it is expected that holders
of record of Common Stock shall be entitled to exchange their
shares for securities, each or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution or winding up. Failure
to give notice as required by this subsection (f), or any
defect therein, shall not affect the legality or validity of
any such dividend, distribution, right, warrant,
reclassification, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution or winding up, or the
vote on any action margin authorizing such.
(g) The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but
unissued Common Stock, for the purpose of issuance upon
conversion of shares of Series A, the full number of shares of
Common Stock then deliverable upon the conversion of all
shares of Series A then outstanding.
(h) The Corporation will pay any and all taxes that may be payable
in respect of the issuance or delivery of shares of Common
Stock on conversion of shares of Series A pursuant hereto. The
Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in
the issuance and delivery of shares of Common Stock in a name
other than that in which the shares of Series A so converted
were registered, and no such issuance or delivery shall be
made unless and until the person requesting such issuance has
paid to the Corporation the amount of any such tax or has
established to the satisfaction of the Corporation that such
tax has been paid.
(i) For the purpose of this Section 7, the term "Common Stock"
shall include any stock of any class or series of the
Corporation which has no preference or priority in the payment
of dividends or in the distribution of assets in the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation and which is not subject to
redemption by the Corporation. However, shares issuable upon
conversion of shares of Series A shall include only shares of
the class designated as Common Stock as of the original date
of issuance of shares of Series A or shares of the Corporation
of any classes or series resulting from any reclassification
or reclassifications thereof and which have no preference or
priority in the payment of dividends or in the distribution of
assets in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and
which are not subject to redemption by the Corporation,
provided that if at any time there shall be more than one such
resulting class or series, the shares of each such class and
9
series than so issuable shall be substantially in the
proportion which the total number of shares of such class and
series resulting from all such reclassifications bears to the
total number of shares of all such classes and series
resulting from all such reclassifications.
(j) As used in this Section 7, the term "Closing Price" on any day
shall mean the reported last sale price per share of Common
Stock regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and
asked prices regular way, in each case on the New York Stock
Exchange, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the American Stock Exchange, or,
if the Common Stock is not listed or admitted to trading on
such Exchange, on the principal exchange, the average of the
closing bid and asked prices in the over-the-counter market as
reported by the National Association of Securities Dealers'
Automated Quotation System, or, if not so reported, as
reported by the National Quotation Bureau, Incorporated, or
any successor thereof, or, if not so reported, the average of
the closing bid and asked prices as furnished by any member of
the National Association of Securities Dealers, Inc. selected
from time to time by the Corporation for that purpose; or, in
all other cases, the value established by the Board of
Directors in good faith; and the term "Trading Day" shall mean
a day on which the principal national securities exchange on
which the Common Stock is listed or admitted to trading is
open for the transaction of business or, if the Common Stock
is not listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday, Thursday,
or Friday on which banking institutions in New York City are
not authorized or obligated by law or executive order to
close.
(k) The certificate of any independent firm of public accountants
of recognized standing selected by the Board of Directors
shall be presumptive of the correctness of any computation
made under this Section 7.
SECTION 8. NO VOTING RIGHTS. The holders of Series A shall be
entitled to no votes per share, except as otherwise required by law
or by the Corporation's certificate of incorporation.
SECTION 9. LIMITED TRANSFERABILITY OF SERIES A. Until the earliest
to occur of (i) March 18, 1999, or (ii) the execution and delivery
of the written Strategic Alliance Agreement referenced in Section 6
above, the Series A and the rights represented thereby are not
transferable - regardless of whether such transfer occurs by
foreclosure or grant of a lien, pledge, or other security interest
therein, other volitional action, operation of law, or otherwise.
Any attempt to transfer an interest in any shares of Series A in
violation of the forgoing to void.
10
SECTION 10. OTHER RIGHTS. The shares of Series A shall not have any
powers, preferences on relative, participating, optional or other
special rights, or qualifications, limitations or restrictions
thereof, other than as set forth herein.
IN WITNESS WHEREOF, Advanced Communications Group, Inc. has caused this
certificate to be signed by its undersigned duly authorized officer this 17th
day of February, 1998.
ADVANCED COMMUNICATIONS GROUP, INC.
BY: /s/ WILLIAM H. ZIMMER III
-----------------------------------
WILLIAM H. ZIMMER III
EXECUTIVE VICE PRESIDENT
11
CERTIFICATE ELIMINATING REFERENCE TO
SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK
FROM THE
RESTATED CERTIFICATE OF INCORPORATION
OF
ADVANCED COMMUNICATIONS GROUP, INC.
Pursuant to the provisions of Section 151(g) of the General Corporation
Law of the State of Delaware, it is hereby certified that:
1. The name of the corporation is ADVANCED COMMUNICATIONS GROUP,
INC. (hereinafter referred to as the "Corporation").
2. The designation of the shares referred to as Series A
redeemable Convertible Preferred Stock of the Corporation (hereinafter referred
to as the "Series A") to which this Certificate relates is hereby eliminated.
3. All of the voting powers, designations, preferences and the
relative, participating, optional, or other rights and the qualifications,
limitations, and restrictions of the said Series A stock were provided for in a
resolution adopted by the Board of Directors of the Corporation pursuant to
authority expressly vested in it by the provisions of the Restated Certificate
of Incorporation of the Corporation. A Certificate of Designations setting forth
the said resolution was filed with the Secretary of State of the State of
Delaware on February 17, 1998, pursuant to the provisions of Section 151(g) of
the General Corporation Law of the State of Delaware.
4. The Board of Directors of the Corporation has adopted the
following resolution:
WHEREAS, Section 2 of the Certificate of Designations of the Series
A Redeemable Convertible Preferred Stock (hereinafter referred to as the
"Series A") provides in relevant part that, "Shares of Series A that
are. . .converted into Common Stock shall be cancelled and shall revert to
authorized but unissued shares of Preferred Stock undesignated as to
series"; and
WHEREAS, all of the issued and outstanding Series A were converted
by the holder thereof into a like number of shares of Common Stock on
August 18, 1999;
WHEREAS, Section 151(g) of the General Corporation Law of the State
of Delaware provides for the filing of a Certificate with the Secretary of
State of Delaware for the purpose of eliminating from the Restated
Certificate of Incorporation all reference to the Series A. Stock.
NOW, THEREFORE, BE IT RESOLVED, that the proper officers of the
Corporation be and hereby are authorized and directed to file a
Certificate pursuant to the provisions of
Section 151(g) of the General Corporation Law of the State of Delaware to
effect the elimination from the Restated Certificate of Incorporation all
references to the Series A. Stock.
5. The effective time of this certificate shall be on the filing
date.
Signed on February 18, 2000
/s/ Michael A. Pruss
--------------------------------------
Michael A. Pruss, Vice President,
Secretary and Chief Financial Officer
2
CERTIFICATE OF DESIGNATIONS OF
CLASS B VOTING PREFERRED STOCK OF
ADVANCED COMMUNICATIONS GROUP, INC.
PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
Advanced Communications Group, Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, as amended, does HEREBY CERTIFY that
the following resolution has been duly adopted by the Board of Directors of the
Corporation:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of
the Restated Certificate of Incorporation of the Corporation, as amended
(the "Certificate of Incorporation"), there hereby is created out of the
20,000,000 shares of Preferred Stock, par value $0.0001 per share, of the
Corporation authorized in Article IV of the Certificate of Incorporation
(the "Preferred Stock"), a series of Preferred Stock of the Corporation,
to be designated "Class B Voting Preferred Stock," consisting of one (1)
share, which series shall have the following voting powers, designations,
preferences and relative, participating, optional and other rights, and
the following qualifications, limitations and restrictions (in addition to
the powers, designations, preferences and relative, participant, optional
and other rights and the qualifications, limitations and restrictions set
forth in the Certificate of Incorporation which are applicable to the
Preferred Stock).
SECTION 1. DESIGNATION AND SIZE OF ISSUE, RANKING.
(A) The designation of the series of Preferred Stock shall be
"Class B Voting Preferred Stock") (the "Class B Stock"), and the number of
shares constituting the Class B Stock shall be one (1) share.
(B) The share of Class B Stock which at any time has been redeemed
or otherwise reacquired by the Corporation shall, after such redemption or
other acquisition, resume the status of authorized and unissued shares of
Preferred Stock, without designation as to series until such share is once
more designated as part of a particular series by the Board of Directors.
(C) The share of Class B Stock shall rank senior, as to
distribution of assets upon liquidation, to the shares of Common Stock,
par value $0.0001 per share, of the Corporation (the "Common Stock"), and
junior to any future series of Preferred Stock or shares of preference
stock of the Corporation (the "Preference Stock") issued by the
Corporation after the effectiveness of this Certificate of Designation
that by its terms ranks senior to the Class B Stock.
SECTION 2. VOTING RIGHTS OF CLASS B STOCK.
(A) GENERAL. Except as otherwise required by law or the
Certificate of Incorporation, the holder of record of the share of Class B
Stock shall have a number of votes with respect to any matter, proposition
or question on which holders of Common Stock are entitled to vote, consent
or otherwise act, equal to the product of (i) the number of shares of
Common Stock for which the Exchangeable Shares then issued and outstanding
from time to time and held by Holders are exchangeable, multiplied by (ii)
the number of votes to which a holder of one share of Common Stock is
entitled with respect to such matter, proposition or question. For the
purposes hereof, (x) "Exchangeable Shares" means the Class A Special
Shares of ACG Exchange Company, a Nova Scotia unlimited liability company
("ACG Exchange Company"), (y) "Holders" means the registered holders from
time to time of Exchangeable Shares, other than Exchangeable Shares
beneficially owned by the Corporation or its Subsidiaries, and (z)
"Subsidiary" in relation to any person, means any body corporate,
partnership, joint venture, association or other entity of which more than
50% of the total voting power of shares of stock or units of ownership or
beneficial interest entitled to vote in the election of directors (or
members of a comparable governing body) is owned or controlled, directly
or indirectly, by such person.
(B) COMMON STOCK AND CLASS B STOCK IDENTICAL IN VOTING. Except as
otherwise required by law or the Certificate of Incorporation, in respect
of all matters concerning the voting of shares of capital stock of the
Corporation, the Common Stock (and any other class or series of capital
stock of the Corporation entitled to vote generally with the Common Stock)
and the Class B Stock shall vote as a single class and, apart from the
differing number of votes attaching to the Class B Stock as set forth in
Section 2(A) above, such voting rights shall be identical in all respects.
SECTION 3. LIQUIDATION. In the event of any liquidation, dissolution
or winding up of the Corporation and subject to any prior rights of
holders of shares of any other series of Preferred Stock or of any series
of Preference Stock, if the Class B Stock is then outstanding the holder
thereof shall be entitled to receive, out of the assets of the Corporation
available for distribution to its stockholders, an amount equal to $1.00
before any distribution is made on the Common Stock or on any other stock
of the Corporation ranking junior to the Class B Stock as to distribution
of assets on liquidation, dissolution or winding up. After payment of the
full amount of the above liquidation preference of the outstanding share
of Class B Stock, the holder of the share of Class B Stock shall not be
entitled to any further participation in any distribution of assets of the
Corporation. For the purposes of this Section 3, neither the sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of the property or assets
of the Corporation, nor the consolidation or merger of the Corporation
with or into one or more other entities, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation.
2
SECTION 4. DIVIDENDS. The holder of the Class B Stock shall not be
entitled to receive any dividends, whether payable in cash, in property or
in shares of capital stock of the Corporation.
SECTION 5. CLASS B STOCK
(A) Pursuant to the terms of that certain Amended and Restated
YPtel Agreement dated as of October 26, 1999 (the "YPtel Agreement"),
between the Corporation, YPtel Corporation ("YPtel"), the shareholders of
YPtel listed on Exhibit "A" to the YPtel Agreement, Edward Truant, Douglas
G. McIntyre, Jeffrey L. Rosenthal, Stephen D. Lister, The J.L.R. Family
Trust and The Parsley Family Trust (collectively the "ICL Principals"),
Cold Trust, Global Investment Trust, Freezer Trust, Storage Trust,
Directory Trust and Publisher Trust (collectively the "Barbadian Trusts")
(the shareholders listed on Exhibit "A" to the YPtel Agreement, the ICL
Principals and the Barbadian Trusts are collectively referred to as the
"Shareholders"), and Imperial Capital Limited ("ICL"), one share of Class
B Stock is being issued to the Trustee (as hereinafter defined) under the
Exchange and Voting Trust Agreement made as of February 18, 2000 among the
Corporation, ACG Holding Company, a Nova Scotia unlimited liability
company, ACG Exchange Company, a Nova Scotia unlimited liability company,
1 + USA V Acquisition Corp., a corporation organized and existing under
the laws of the State of Delaware, certain holders of YPtel shares as set
out on Schedule A thereto. YPtel/ACG Pledge Corporation, an Ontario
corporation and Montreal Trust Company of Canada, a trust company
incorporated under the laws of Canada (the "Trustee"), as may be amended
from time to time.
(B) The holder of the share of Class B Stock is entitled to
exercise the voting rights attendant thereto in such manner as specified
in the Exchange and Voting Trust Agreement.
(C) At such time as the term of the Exchange and Voting Trust
Agreement shall end, being the earlier of the date when (i) no outstanding
Exchangeable Shares are held by a Holder, (ii) such Agreement is
terminated by mutual agreement as provided therein or (iii) February 18,
2005, the Class B Stock shall be redeemed in accordance with Section 7
hereof.
SECTION 6. CONVERSION OR EXCHANGE. The holder of the Class B Stock
shall not have any rights hereunder to convert such share into, or
exchange such share for, shares of any other series or class of capital
stock of the Corporation.
SECTION 7. REDEMPTION. The share of Class B Stock shall not be
subject to redemption, except that at such time as the term of the
Exchange and Voting Trust Agreement shall end, the Class B Stock shall
automatically be redeemed by the Corporation for an amount equal to $1.00
due and payable upon such redemption.
3
SECTION 8. OTHER RIGHTS. The share of Class B Stock shall not have
any powers, preferences or relative, participating, optional or other
special rights, or qualifications, limitations or restrictions other than
as set forth herein.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed and attested this 23rd day of February, 2000.
ADVANCED COMMUNICATIONS GROUP, INC.
By: /s/ Richard A. O'Neal
-----------------------------------
Richard A. O'Neal, Chairman
of the Board and Chief
Executive Officer
4
CERTIFICATE OF AMENDMENT OF THE
RESTATED CERTIFICATE OF INCORPORATION OF
ADVANCED COMMUNICATIONS GROUP, INC.
Advanced Communications Group, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY THAT:
I. The proposed amendment to the Corporation's Restated Certificate of
Incorporation set forth below was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
II. ARTICLE I is amended to read in its entirety as follows:
ARTICLE I
The name of the Corporation is: WorldPages.com, Inc.
IN WITNESS WHEREOF, we have hereunto set out our hands and seals as
President and Secretary, respectively, of the Corporation this 24th day of
September, 2000 and we hereby affirm that the foregoing Certificate of Amendment
of the Restated Certificate of Incorporation is our act and deed and the act and
deed of the Corporation and that the facts stated therein are true.
/s/ Richard A. O'Neal
--------------------------------------
Richard A. O'Neal, President
ATTEST
/s/ Michael A. Pruss
--------------------------------------
Michael A. Pruss, Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
OF
ADVANCED COMMUNICATIONS CORP.
INTO
WORLDPAGES.COM, INC.
It is hereby certified that:
1. WorldPages.com, Inc. (the "Corporation") is a business corporation of the
State of Delaware.
2. The Corporation is the owner of all of the outstanding shares of the stock
of Advanced Communications Corp. (the "Subsidiary") which is also a
business corporation of the State of Delaware.
3. On December 8, 2000, the Board of Directors of the Corporation adopted the
following resolutions to merge the Subsidiary into the Corporation:
RESOLVED, that Advanced Communications Corp. (the "Subsidiary") be merged
into the Corporation, and that all of the estate, property, rights,
privileges, powers and franchises of the Subsidiary be vested in and held
and enjoyed by the Corporation as fully and entirely and without change or
diminution as the same were before held and enjoyed by the Subsidiary.
RESOLVED, that the Corporation assume all of the obligations of the
Subsidiary.
RESOLVED, that the Corporation cause to be executed and filed and/or
recorded the documents prescribed by the laws of the State of Delaware and
by the laws of any other appropriate jurisdiction, and cause to be
performed all necessary acts within the State of Delaware and within any
other appropriate jurisdiction.
4. The merger herein provided for shall be effective at 5 p.m. on December
31, 2000.
Dated: December 8, 2000 WorldPages.com, Inc.
By: /s/ Michael A. Pruss
-----------------------------------
Michael A. Pruss, Secretary
CERTIFICATE OF DESIGNATIONS
OF
SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK
OF
ADVANCED COMMUNICATIONS GROUP, INC.
Advanced Communications Group, Inc., a Delaware corporation (the "Corporation"),
does hereby certify that the following resolution was duly adopted on February
11, 1998 by the Board of Directors of the Corporation (the "Board of Directors")
at a meeting duly convened and held pursuant to authority conferred upon the
Board of Directors by the provisions of the Certificate of Incorporation of the
Corporation that authorize the issuance of up to 20,000,000 shares of preferred
stock, par value $.0001 per share ("Preferred Stock"):
BE IT RESOLVED, that the issuance of a series of Preferred Stock of
Advanced Communications Group, Inc. (the "Corporation") is hereby
authorized, and the designation, powers, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions thereof, of the shares of said series, in
additional to those set forth in the Certificate of Incorporation of the
Corporation, are hereby fixed as follows:
SECTION 1. DESIGNATION. The distinctive serial designation of said
series shall be "Series A Redeemable Convertible Preferred Stock"
(hereinafter called "Series A"). Each share of Series A shall be
identical in all respects with all other shares of Series A.
SECTION 2. NUMBER OF SHARES. The number of shares in Series A shall
be 142,857, which number may from time to time be increased (but not
in excess of the total number of authorized shares of Preferred
Stock) or decreased (but not below the number of shares of Series A
then outstanding) by the Board of Directors. Shares of Series A that
are redeemed, purchased or otherwise acquired by the Corporation or
converted into Common Stock shall be cancelled and shall revert to
authorized but unissued shares of Preferred Stock undesignated as to
series.
SECTION 3. DEFINITIONS. As used herein with respect to Series A, the
following terms shall have the following meanings:
(a) The term "junior stock" shall mean the Common Stock and any
other class or series of stock of the Corporation hereafter
authorized over which Series A has preference or priority in
the distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
(b) The term "party stock" shall mean any other class or series of
stock of the Corporation hereafter authorized which ranks on a
parity with Series A in the
distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
(c) The term "senior stock" shall mean any other class or series
of stock of the Corporation hereafter authorized which ranks
ahead of the Series A in the distribution of assets on any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation.
(d) The terms "business day" shall mean each Monday, Tuesday,
Wednesday, Thursday or Friday on which banking institutions in
New York City are not authorized or obligated by law or
executive order to close.
SECTION 4. DIVIDENDS. The holders of shares of Series A shall not be
entitled to receive, nor shall the Board of Directors declare,
dividends on the shares of Series A.
SECTION 5. LIQUIDATION RIGHTS. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, then, before any distribution of payment shall be
made to the holders of any junior stock, but after all distributions
and payments shall be made to the holders of senior stock, the
holders of shares of Series A shall be entitled to be paid in full
an amount equal to $14.00 per share (the "Liquidation Amount").
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, the assets
distributable to the holders of Series A and the holders of all
parity stock shall be insufficient to permit the payment in full to
such holders of all preferential amounts payable to them, then the
entire assets of the Corporation then distributable, after
distribution of amounts payable with respect to the senior stock,
shall be distributed ratably among the holders of Series A and the
holders of all parity stock in proportion to the respective amounts
that would be payable on a per share basis if such assets were
sufficient to permit payment in full of all preferential amounts.
If the Liquidation Amount shall have been paid in full to each
holder of shares of Series A, the remaining assets of the
Corporation shall be distributed among the holders of junior stock,
according to their respective rights and preferences and in each
case according to their respective numbers of shares.
For the purposes of this Section 5, the consolidation or merger of
the Corporation with any other corporation shall not be deemed to
constitute a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation.
SECTION 6. REDEMPTION. If, by February 18, 1999, the Corporation and
Northwestern Public Service Company, a Delaware corporation, have
not entered
2
into the written Strategic Alliance Agreement contemplated by the
letter agreement among the Corporation, Northwestern Public Service
Company and Northwestern Growth Corporation dated January 15, 1998,
then the Corporation, at the option of the Board of Directors, may
redeem in whole the shares of Series A upon notice given as
hereinafter specified, at a redemption price per share equal to
62.5% of the Liquidation Amount. If, by March 18, 1999, the
Corporation shall not have mailed notice of the redemption of all
shares of Series A as provided below, then the Corporation's right
to redeem the Series A shall thereupon expire.
Notice of every redemption of shares of Series A shall be mailed by
first class mail, postage prepaid, addressed to the holders of
record of the shares to be redeemed at their respective last
addresses as they shall appear on the books of the Corporation. Such
mailing shall be at least five days and not more than 30 days prior
to the date fixed for redemption. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given, whether or not the stockholder receives such notice, and
failure duly to give such notice by mail, or any defect in such
notice, to any holder of shares of Series A designated for
redemption shall not affect the validity of the proceedings for the
redemption of any other shares of Series A.
If notice of redemption shall have been duly given, and if on or
before the redemption date specified therein all funds necessary for
such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares called for redemption, so as to
be and continue to be available therefor, then, notwithstanding that
any certificate for shares so called for redemption shall not have
been surrendered for cancellation, on and after such redemption
date, all shares so called for redemption shall no longer be deemed
outstanding and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate except only
the right of the holders thereof to receive the amount payable on
redemption thereof, without interest. Any funds so deposited and
unclaimed at the end of three years from such redemption date shall,
to the extent permitted by law, be released or repaid to the
Corporation, after which time the holders of the shares so called
for redemption shall look only to the Corporation for payment
thereof.
SECTION 7. CONVERSION RIGHTS. Each holder of shares of Series A
shall have the right, at such holder's option, to convert such
shares into shares of Common Stock of the Corporation at any time
following August 18, 1999, on and subject to the following terms and
conditions:
(a) Each share of Series A shall be convertible at the principal
office of the Corporation and at such other office or offices,
if any, as the Board of Directors may designate, into such
number of fully paid and non-assessable shares (calculated as
to each conversion to the nearest 1/100th of a share) of
3
Common Stock of the Corporation, as shall be determined by
dividing the Liquidation Amount by the "conversion price";
provided, however, that the conversion price shall be adjusted
in certain instances as provided in paragraph (d) below. The
conversion price is initially the Liquidation Amount.
(b) In order to convert shares of Series A into Common Stock the
holder thereof shall surrender at the office or offices
hereinabove mentioned the certificate or certificates
therefor, duly endorsed or assigned to the Corporation or in
blank, and give written notice to the Corporation at said
office or offices that such holder elects to convert such
shares. No payment or adjustment shall be made upon any
conversion on account of any unpaid or accrued dividends on
account of any dividends on the Common Stock issued upon
conversion.
Shares of Series A shall be deemed to have been converted
immediately prior to the close of business on the day of the
surrender of the certificates for such shares for conversion
in accordance with the foregoing provisions, and the person or
persons entitled to receive the Common Stock issuance upon
such conversion shall be treated for all purposes as the
record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, the
Corporation shall issue and shall deliver at such office a
certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion, together with
payment in lieu of any fraction of a share, as hereinafter
provided, to the person or persons entitled to receive the
same.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of Series A, but, instead of any fraction
of a share which would otherwise be issuable, the Corporation
shall pay cash in respect of such fraction in an amount equal
to the same fraction of the Closing Price (as defined below)
on the date on which the certificate or certificates for such
shares were duly surrendered for conversion, or, if such date
is not a Trading Day (as defined below), on the next Trading
Day.
(d) The conversion price shall be deemed to be proportionately
adjusted from time to time as follows:
(i) In case the Corporation shall (A) pay a dividend
or make a distribution on its outstanding Common Stock in
shares of its capital stock, (B) subdivide its outstanding
Common Stock into a greater number of shares, (C) combine its
outstanding Common Stock into a smaller number of shares or
(D) issue by reclassification of its Common Stock (whether
pursuant to a merger or consolidation or otherwise) any other
shares of the Corporation, the holder of any shares of Series
A surrendered for conversion after the record
4
date fixed by the Board of Directors for such dividend,
distribution, subdivision, combination or reclassification
shall be entitled to receive the aggregate number and kind of
shares of capital stock of the Corporation which, if such
shares of Series A had been converted immediately prior to
such record date at the conversion price then in effect, such
holder would have been entitled to receive by virtue of such
dividend, distribution, subdivision, combination or
reclassification; and the conversion price shall be deemed to
have been adjusted after such record date to apply to such
aggregate number and kind of shares. Such adjustment shall be
made whenever any of the events listed above shall occur.
(ii) In case the Corporation shall fix a record date
for issuing to all holders of Common Stock rights or warrants
expiring within 45 days entitling them to subscribe for or
purchase Common Stock at a price per share less than the
current market price per share (as determined pursuant to
clause (iv) below) on such record date the conversion price in
effect from and after such record date shall be reduced so
that it shall be equal to the price determined by multiplying
the conversion price in effect immediately prior to such
record date by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on such record
date plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of
Common Stock so offered for subscription or purchase would
purchase at such current market price and of which the
denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional
shares of Common Stock so offered for subscription or
purchase. For the purpose of this clause (ii), the issuance of
rights or warrants to subscribe for or purchase securities
convertible into Common Stock shall be deemed to be the
issuance of rights or warrants to purchase the Common Stock
into which such securities are convertible at an aggregate
offering price equal to the aggregate offering price of such
securities plus the minimum aggregate amount (if any) payable
upon conversion of such securities into Common Stock. Such
adjustment shall be made successively whenever such a record
date is fixed. In case such rights or warrants are not issued
after such a record date has been fixed, the conversion price
shall be readjusted to the conversion price which would have
been in effect if such record date had not been fixed.
(iii) In case the Corporation shall fix a record date
for the distribution to all holders of Common Stock (whether
pursuant to a merger or consolidation or otherwise) of assets
(excluding cash dividends out of retained earnings), or rights
to subscribe (excluding those referred to in clause (ii)
above), then in each such case the conversion price in effect
from and after such record date shall be adjusted so that the
same shall be equal to the price determined by multiplying the
conversion price in effect immediately
5
prior to such record date by a fraction, of which the
numerator shall be the current market price per share
(determined as provided in clause (iv) below) of the Common
Stock on such record date less the fair market value (as
determined by the Board of Directors, whose determination in
good faith shall be conclusive) of the portion of the
evidences of indebtedness or assets so distributed or of such
rights to subscribe applicable to one share of Common Stock
and of which the denominator shall be such current market
price per share of Common Stock. Such adjustment shall be made
whenever any such a record date is fixed. In case such
distribution is not made after such a record date has been
fixed, the conversion price shall be readjusted to the
conversion price which would have been in effect if such
record date had not been fixed.
(iv) For the purpose of any computation under clauses
(ii) and (iii) above, the current market price per share of
Common Stock on any date shall be deemed to be the average of
the daily Closing Prices for 30 consecutive Trading Days
selected by the Corporation commencing not less than 10 nor
more than 45 Trading Days before the date in question.
(v) In case the Corporation shall be a party to any
transaction (including, without limitation, a merger,
consolidation, sale of all or substantially all of the
Corporation's assets, liquidation or recapitalization of the
Common Stock, but excluding any transaction to which clauses
(i), (ii) or (iii) above applies) in which the previously
outstanding Common Stock shall be changed into or exchanged
for different securities of the Corporation or common stock or
other securities of another corporation or interests in a
noncorporate entity or other property (including cash) or any
combination of any of the foregoing, then, as a condition of
the consummation of such transaction, lawful and adequate
provision shall be made so that each holder of shares of
Series A shall be entitled, upon conversion, to an amount per
share of Series A equal to (A) the aggregate amount of stock,
securities, cash or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged, times (B) the number of shares
of Common Stock into which a share of Series A is convertible
immediately prior to the consummation of such transaction.
(vi) In any case in which this subsection (d) shall
require that an adjustment as a result of any event become
effective from and after a record date, the Corporation may
elect to defer until after the occurrence of such event (A)
issuing to the holder of any shares of Series A converted
after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such
conversion over and above the shares issuable on the basis of
the conversion price in effect immediately prior to adjustment
and (B) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to subsection (c)
6
above. In lieu of the shares of the issuance of which is
deferred pursuant to item (A) above, the Corporation shall
issue or cause one of its transfer agents to issue due bills
or other appropriate evidence of the right to receive such
shares.
(vii) Any adjustment in the conversion price otherwise
required by this Section 7 to be made may be postponed until
the date of the next adjustment otherwise required to be made
if such adjustment (together with any other adjustments
postponed pursuant to this paragraph (vii) and not theretofore
made) would not require an increase or decrease of more than
1% in such price. All calculations under this subsection (d)
shall be made to the nearest cent or to the nearest 1/100th of
a share, as the case may be.
(viii) In case at any time, as a result of an adjustment
made pursuant to paragraph (i) above, the holder of any shares
of Series A thereafter surrendered for conversion shall become
entitled to receive any shares of capital stock of the
Corporation other than Common Stock, thereafter the number of
such other shares so receivable upon conversion of such shares
of Series A shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Common stock contained
in paragraphs (i) to (vii), inclusive, above, and the other
provisions of this subsection (d) with respect to the Common
stock shall apply on like terms to any such other shares.
(ix) The Board of Directors may in its discretion make
such reductions in the conversion price, in addition to those
required by this subsection (d), as shall be determined by the
Board of Directors to be advisable in order to avoid taxation
so far as practicable of any dividend of stock or stock rights
or any event treated as such for Federal income tax purposes
to the recipients. The Board of Directors shall have the power
to resolve any ambiguity or correct any error in this
subsection (d), and its action in so doing shall be final and
conclusive.
(e) Whenever the conversion price is adjusted as herein provided:
(i) The Corporation shall compute the adjusted
conversion price in accordance with this Section 7 and shall
cause to be prepared a certificate signed by the Corporation's
treasurer setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be
filed with each transfer agent for the shares of Series A; and
(ii) A notice stating that the conversion price has
been adjusted and setting forth the adjusted conversion price
shall, as soon as practicable, be mailed to the holders of
record of outstanding shares of Series A.
7
(f) In case:
(i) The Corporation shall declare a dividend or other
distribution on its Common Stock payable otherwise than in
cash out of retained earnings or in obligations to pay cash
out of retained earnings; or
(ii) The Corporation shall authorize the issuance to
the holders of its Common Stock of rights or warrants
entitling them in subscribe for or purchase any shares of
capital stock or any class or any other subscription rights or
warrants; or
(iii) Of any reclassification of the capital stock of
the Corporation (other than a subdivision or combination of
its outstanding shares of Common Stock), or of any
consolidation or merger to which the Corporation is a party
and for which approval of any stockholders of the Corporation
is required, or of the sale, transfer or other disposition of
all or substantially all of the assets of the Corporation; or
(iv) Of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with each
transfer agent for the shares of Series A and shall cause to
be mailed to the holders of record of the outstanding shares
of Series A, at least 20 days (or 10 days in any case
specified in clause (i) or (ii) above) prior to the applicable
record or effective date hereinafter specified, a notice
stating (x) the date as of which the holders of record of
Common Stock to be entitled to such dividend, distribution,
rights or warrants are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale,
transfer, disposition, liquidation, dissolution or winding up
is expected to become effective, and the date as of which it
is expected that holders of record of Common Stock shall be
entitled to exchange their shares for securities, each or
other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, disposition,
liquidation, dissolution or winding up. Failure to give notice
as required by this subsection (f), or any defect therein,
shall not affect the legality or validity of any such
dividend, distribution, right, warrant, reclassification,
consolidation, merger, sale, transfer, disposition,
liquidation, dissolution or winding up, or the vote on any
action margin authorizing such.
(g) The Corporation shall at all times reserve and keep available,
free from preemptive rights out of its authorized but unissued
Common Stock, for the purpose of issuance upon conversion of
shares of Series A, the full number of shares of Common Stock
then deliverable upon the conversion of all shares of Series A
then outstanding.
(h) The Corporation will pay any and all taxes that may be payable
in respect of the issuance or delivery of shares of Common
Stock on conversion of shares of Series A pursuant hereto. The
Corporation shall not, however, be required to pay any tax
8
which may be payable in respect of any transfer involved in
the issuance and delivery of shares of Common Stock in a name
other than that in which the shares of Series A so converted
were registered, and no such issuance or delivery shall be
made unless and until the person requesting such issuance has
paid to the Corporation the amount of any such tax or has
established to the satisfaction of the Corporation that such
tax has been paid.
(i) For the purpose of this Section 7, the term "Common Stock"
shall include any stock of any class or series of the
Corporation which has no preference or priority in the payment
of dividends or in the distribution of assets in the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation and which is not subject to
redemption by the Corporation. However, shares issuable upon
conversion of shares of Series A shall include only shares of
the class designated as Common Stock as of the original date
of issuance of shares of Series A or shares of the Corporation
of any classes or series resulting from any reclassification
or reclassifications thereof and which have no preference or
priority in the payment of dividends or in the distribution of
assets in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and
which are not subject to redemption by the Corporation,
provided that if at any time there shall be more than one such
resulting class or series, the shares of each such class and
series then so issuable shall be substantially in the
proportion which the total number of shares of such class and
series resulting from all such reclassifications bears to the
total number of shares of all such classes and series
resulting from all such reclassifications.
(j) As used in this Section 7, the term "Closing Price" on any day
shall mean the reported last sale price per share of Common
Stock regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and
asked prices regular way, in each case on the New York Stock
Exchange, or, if the Common Stock is no listed or admitted to
trading on such Exchange, on the American Stock Exchange, or,
if the Common Stock is not listed or admitted to trading on
such Exchange, on the principal national securities exchange
on which the Common Stock is listed or admitted to trading,
or, if the Common Stock is not listed or admitted to trading
on any national securities exchange, the average of the
closing bid and asked prices in the over-the-counter market as
reported by the National Association of Securities Dealers
Automated Quotation System, or, if not so reported, as
reported by the National Quotation Bureau, Incorporated, or
any successor thereof, or, if not so reported, the average of
the closing bid and asked prices as furnished by any member of
the National Association of Securities Dealers, Inc. selected
from time to time by the Corporation for that purpose; or, in
all other cases, the value established by the Board of
Directors in good faith; and the term "Trading Day" shall mean
a day on which the principal national securities exchange on
which the Common Stock is listed or admitted to trading is
open for the transaction of business or, if the Common Stock
is not listed or admitted for trading
9
on any national securities exchange, a Monday, Tuesday,
Wednesday, Thursday or Friday on which banking institutions in
New York City are not authorized or obligated by law or
executive order to close.
(k) The certificate of any independent firm of public accounts of
recognized standing selected by the Board of Directors shall
be presumptive evidence of the correctness of any computation
made under this Section 7.
SECTION 8. NO VOTING RIGHTS. The holders of Series A shall be entitled to
no votes per share except as otherwise required by law or by the
Corporation's certificate of incorporation.
SECTION 9. LIMITED TRANSFERABILITY OF SERIES A. Until the earlier to occur
of (i) March 18, 1999, or (ii) the execution and delivery of the written
Strategic Alliance Agreement referenced in Section 6 above, the Series A
and the rights represented thereby are not transferable - regardless of
whether such transfer occurs by foreclosure or grant of a lien, pledge, or
other security interest therein, other volitional act, operation of law,
or otherwise. Any attempt to transfer an interest in any shares of Series
A in violation of the foregoing is void.
SECTION 10. OTHER RIGHTS. The shares of Series A shall not have any
powers, preferences on relative, participating, optional or other special
rights, or qualifications, limitations or restrictions thereof, other than
as set forth herein.
IN WITNESS WHEREOF, Advanced Communications Group, Inc. has caused this
certificate to be signed by its undersigned duly authorized officer this 17th
day of February, 1998.
Advanced Communications Group, Inc.
By: /s/ William H. Zimmer III
-----------------------------------
William H. Zimmer III
Executive Vice President
10
CERTIFICATE OF MERGER
OF
WORLDPAGES MERGER SUBSIDIARY, INC.
(A DELAWARE CORPORATION)
WITH AND INTO
WORLDPAGES.COM, INC.
(A DELAWARE CORPORATION)
* * * * * * * * * *
In accordance with the provisions of Section 251 of the
General Corporation Law of the
State of Delaware
* * * * * * * * * *
The undersigned on behalf of WorldPages.com, Inc., a corporation duly
organized and existing under and by virtue of the laws of the State of Delaware
(the "Corporation"), desiring to merge WorldPages Merger Subsidiary, Inc., a
Delaware corporation (the "Merger Subsidiary" and collectively with the
Corporation as sometime referred to herein as the "Constituent Corporations"),
with and into itself, pursuant to the provisions of Section 251 of the General
Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as follows:
FIRST: The name and state of incorporation of the Constituent Corporations
of the merger (the "Merger") are as follows:
NAME STATE OF INCORPORATION
---- ----------------------
WorldPages Merger Subsidiary, Inc. Delaware
WorldPages.com, Inc. Delaware
SECOND: An Agreement and Plan of Merger (the "Merger Agreement") has been
approved, adopted, certified, executed and acknowledged by each of the
Constituent Corporations,
in accordance with the requirements of Section 251 of the General Corporation
Law of the State of Delaware.
THIRD: The name of the surviving corporation of the Merger is
WorldPages.com, Inc. (sometimes herein referred to as the "Surviving
Corporation"). The Certificate of Incorporation of the Corporation as in effect
at the effective time of the Merger shall be amended and restated in its
entirety in the form of the Restated Certificate of Incorporation as set forth
on EXHIBIT A attached hereto and made a part hereof.
FOURTH: An executed copy of the Merger Agreement is on file at the
principal place of business of the Surviving Corporation, 8344 Clairemont Mesa
Blvd., San Diego, California 92111, Attention: Secretary, and a copy of the
Merger Agreement will be furnished by the Surviving Corporation, upon request
and without cost, to any stockholder of any of the Constituent Corporations.
FIFTH: The Merger shall be effective immediately upon filing.
* * * * *
2
IN WITNESS WHEREOF, the undersigned, for the purpose of effectuating the
Merger of the constituent corporations, pursuant to the General Corporation Law
of the State of Delaware, under penalties of perjury does hereby declare and
certify that this is the act and deed of the Corporation and the facts stated
herein are true and accordingly has hereunto signed this Certificate of Merger
this 28th day of June, 2001.
WorldPages.com, Inc.,
a Delaware corporation
By: /s/ Michael A. Pruss
-----------------------------------
Name: Michael A. Pruss
Title: Vice President and CFO
3
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
WORLDPAGES.COM, INC.
WorldPages.com, Inc. filed its original Certificate of Incorporation with
the Delaware Secretary of State on September 29, 1997 (the "Original Certificate
of Incorporation") under the name of New Acg, Inc.
ARTICLE ONE
The name of the corporation is WorldPages.com, Inc.
ARTICLE TWO
The address of the corporation's registered office in the State of
Delaware is 9 East Loockerman Street, in the City of Dover, County of Kent,
19901. The name of its registered agent at such address is National Registered
Agents, Inc.
ARTICLE THREE
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 the State of Delaware.
ARTICLE FOUR
The total number of shares of stock which the corporation has
authority to issue is one thousand (1,000) shares of Common Stock, par value one
cent ($0.01) per share.
ARTICLE FIVE
The corporation is to have perpetual existence.
ARTICLE SIX
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the corporation is expressly authorized to
make, alter or repeal the by-laws of the corporation.
ARTICLE SEVEN
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the corporation may provide. The books of the
corporation may be kept 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. Election of directors need not be by written ballot unless
the by-laws of the corporation so provide.
ARTICLE EIGHT
Section 1. Elimination of Certain Liability of Directors. A director
of this corporation shall not be personally liable to this corporation or its
stockholders 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
this corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of Delaware,
or (iv) for any transaction from which the director derived an improper personal
benefit. No amendment, alteration or repeal of, nor the adoption of any
provision inconsistent with, any provision of this Section 1 of ARTICLE EIGHT,
which shall in any manner increase the actual or potential liability of any
director of this corporation, shall apply to or have any effect on the liability
or alleged liability of any such director for or with respect to actions or
omissions of such director occurring prior to such amendment, alteration, repeal
or adoption.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made
a party or is threatened to be made to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of this corporation or, while a director or officer of this
corporation, is or was serving at the request of this corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by this corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended, against all expense, liability and loss
(including attorneys' fees, judgments, fines, amounts paid or to be paid in
settlement, and excise taxes or penalties arising under the Employee Retirement
Income Security Act of 1974) reasonably incurred or suffered by such person in
connection therewith and
2
such indemnification shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
paragraph (b) hereof, this corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of this corporation. The right to indemnification conferred
in this Section shall be a contract right and shall include the right to be paid
by this corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to this corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Section or otherwise. This
corporation may, by action of the board of directors, provide indemnification to
employees and agents of this corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by this corporation within 30
days after a written claim has been received by this corporation, the claimant
may at any time thereafter bring suit against this corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to this corporation) that the claimant has not met the standards of
conduct which make it permissible under the General Corporation Law of the State
of Delaware for this corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on this corporation.
Neither the failure of this corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor
an actual determination by this corporation (including its board of directors,
independent legal counsel, or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
(c) Non-exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of this Restated Certificate of Incorporation, By-Laws, agreement,
vote of stockholders or disinterested directors of this corporation or
otherwise.
(d) Insurance. This corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
this corporation or another corporation,
3
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not this corporation would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware.
(e) Amendment. No amendment, alteration or repeal of, nor
the adoption of any provision inconsistent with, any provision of Section 2 of
ARTICLE EIGHT, which shall in any manner increase the actual or potential
liability of any director of this corporation shall apply to or have any effect
on the liability or alleged liability of any such director for or with respect
to actions or omissions of such director occurring prior to such amendment,
alteration, repeal or adoption.
ARTICLE NINE
The corporation expressly elects not to be governed by ss.203 of the
General Corporation Law of the State of Delaware.
ARTICLE TEN
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation in the manner now
or hereafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
4