▇▇▇▇▇▇▇ ▇▇(▇)
▇▇▇▇▇▇▇▇▇▇ AND RECAPITALIZATION AGREEMENT
THIS REPURCHASE AND RECAPITALIZATION AGREEMENT (this "Recapitalization
Agreement") is entered into as of the 11th day of August, 1997 by and among
Atlantic Tele-Network, Inc., a Delaware corporation (the "Company"), ▇▇▇▇▇▇▇▇▇
▇. Prior, Jr. ("Prior"), individually and as Trustee of the 1994 PRIOR
CHARITABLE REMAINDER TRUST (the "Trust"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇").
WHEREAS, to eliminate corporate disputes and to maximize the value of the
Company for the benefit of the Company and its stockholders, the Company has
entered into a Principal Terms Agreement dated January 29, 1997 among the
Company, Prior and ▇▇▇▇▇▇▇, which contemplates the separation of the
businesses and assets of the Company in the manner set forth herein and in the
Subscription Agreement (as defined below) and the Merger Agreement (as defined
below); and
WHEREAS, the Company and Emerging Communications, Inc., a Delaware
corporation ("ECI"), have entered into a Subscription Agreement of even date
herewith (the "Subscription Agreement"), pursuant to which in order to
accomplish such separation, subject to the terms and conditions set forth in
the Subscription Agreement, the Company has agreed to transfer to ECI all of
the capital stock of its wholly owned subsidiaries, Atlantic Tele-Network,
Co., a Virgin Islands corporation ("ATNCo."), and Atlantic Aircraft, Inc., a
Delaware corporation ("Aircraft Corp."), as well as certain other assets of
the Company as more fully described therein relating to businesses conducted
by ATNCo., its subsidiaries, Virgin Islands Telephone Corporation, a Virgin
Islands corporation, Vitelcom Cellular Inc., a Virgin Islands corporation, and
Vitelcom, Inc., a Virgin Islands corporation, and Aircraft Corp. in exchange
for 10,959,131 shares of common stock, par value $0.01 per share (the "ECI
Common Stock"), of ECI; and
WHEREAS, subject to the terms and conditions set forth herein, (a) the
Company desires to repurchase an aggregate of 765,562 shares of common stock,
par value $.01 per share (the "Company Common Stock"), of the Company owned by
Prior and the Trust, and (b) ▇▇▇▇▇▇▇ desires to exchange 3,325,000 shares of
Company Common Stock owned by ▇▇▇▇▇▇▇ and certain members of his family
(including shares which he holds under an option to purchase) for 3,325,000
shares of a new series of common stock of the Company to be designated Class A
Common Stock and Prior desires to exchange 2,927,038 shares of Company Common
Stock owned by Prior and certain members of his family for 2,927,038 shares of
a new series of common stock of the Company to be designated Class B Common
Stock; and
WHEREAS, the Company and ATN MergerCo., a Delaware corporation ("Merger
Sub"), have entered into an Agreement and Plan of Merger of even date herewith
(the "Merger Agreement"), pursuant to which, subject to the terms and
conditions contained therein, Merger Sub will merge with and into the Company,
with each share of Company Common Stock being converted into one share of ECI
Common Stock and 0.40 shares of Company Common Stock, the outstanding shares
of Class A Common Stock will be converted into an aggregate of 5,704,231
shares of ECI Common Stock and the outstanding shares of Class B Common Stock
will be converted into an aggregate of 2,807,040 shares of Company Common
Stock (the "Merger"); and
WHEREAS, the consummation of the Closing (as defined herein) is a condition
to the consummation of the Merger pursuant to the Merger Agreement;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained and subject to the terms and conditions hereinafter
set forth, the parties hereto hereby agree as follows:
ARTICLE I
REPURCHASE
Section 1.01. Purchase of Shares. Subject to the terms and conditions
contained herein, the Company agrees to purchase at the Closing (as defined
herein) 416,998 shares of Company Common Stock owned by Prior (the "Prior
Repurchase Shares") at a purchase price of $22.7284 per share and 384,564
shares of Company Common Stock owned by the Trust (the "Trust Shares") at a
purchase price of $22.7284 per share.
1
Section 1.02. Sale of Shares. Subject to the terms and conditions contained
herein, (i) Prior agrees to sell and deliver to the Company at the Closing the
Prior Repurchase Shares for a purchase price of $22.7284 per share and (ii)
the Trust agrees to sell and deliver to the Company the Trust Shares for a
purchase price of $22.7284 per share.
ARTICLE II
RECAPITALIZATION
Section 2.01. Issuance of Class A Common Stock. (a) Subject to the terms and
conditions contained herein, the Company agrees to issue and deliver to
▇▇▇▇▇▇▇ at the Closing 3,325,000 shares of the Company's Class A Common Stock,
par value $0.01 per share (the "Class A Common Stock"), to be authorized
pursuant to the Charter Amendment (as defined herein) in exchange for all of
the 3,325,000 shares of Company Common Stock owned by ▇▇▇▇▇▇▇ and certain
members of his family or as to which ▇▇▇▇▇▇▇ currently holds an option to
purchase (the "▇▇▇▇▇▇▇ Shares").
(b) Subject to the terms and conditions contained herein, ▇▇▇▇▇▇▇ agrees to
deliver to the Company at the Closing the ▇▇▇▇▇▇▇ Shares in exchange for
3,325,000 shares of the Class A Common Stock.
Section 2.02. Issuance of Class B Common Stock. (a) Subject to the terms and
conditions contained herein, the Company agrees to issue and deliver to Prior
at the Closing 2,927,038 shares of the Company's Class B Common Stock, par
value $0.01 per share (the "Class B Common Stock"), to be authorized pursuant
to the Charter Amendment in exchange for 2,927,038 shares of Company Common
Stock owned by Prior and certain members of his family (the "Prior Exchange
Shares").
(b) Subject to the terms and conditions contained herein, Prior agrees to
deliver to the Company at the Closing the Prior Exchange Shares in exchange
for 2,927,038 shares of the Class B Common Stock.
ARTICLE III
CONDITIONS TO CLOSING
The obligations of the parties to consummate the transactions to be
consummated by the parties at the Closing shall be subject to the satisfaction
of the following conditions on or prior to the Closing Date:
Section 3.01. Subscription Agreement Closing. Each of the conditions to the
closing under the Subscription Agreement (the "Subscription Agreement
Closing") shall have been satisfied or, with the consent of each of the
parties hereto, waived; and the Subscription Agreement Closing shall have been
consummated in accordance with the provisions of the Subscription Agreement.
Section 3.02. Merger Agreement Closing. Each of the conditions to the
Closing under the Merger Agreement (the "Merger Agreement Closing") shall have
been satisfied or with the consent of each of the parties hereto waived; and
all parties thereto shall appear ready, willing and able to consummate the
transactions therein provided to be consummated at the Merger Agreement
Closing.
Section 3.03. Performance. Each of the parties hereto shall have performed
and complied in all material respects with all obligations and conditions
required by this Recapitalization Agreement to be performed or complied with
by it at or prior to the Closing.
Section 3.04. Charter Amendment. The Company shall have adopted and filed
with the Secretary of State of Delaware a Restated Certificate of
Incorporation substantially in the form of Exhibit A attached hereto (the
"Charter Amendment").
2
ARTICLE IV
CLOSING DATE; CLOSING
Section 4.01. Closing Date; Closing. The closing of the purchase and sale of
the Prior Repurchase Shares and Trust Shares and, immediately thereafter, the
closing of the exchange of the ▇▇▇▇▇▇▇ Shares for the Class A Common Stock and
the Prior Exchange Shares for the Class B Common Stock hereunder
(collectively, the "Closing") shall take place on the same day as the
Subscription Agreement Closing and the Merger Agreement Closing (and shall
occur after the Subscription Agreement Closing and prior to the Merger
Agreement Closing) and shall be held as soon as reasonably practicable after
satisfaction or waiver by the parties hereto of the conditions set forth in
Article VI hereof. The date on which the Closing occurs is referred to herein
as the "Closing Date". The Closing shall take place at the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. At the Closing,
(i) the Company shall pay by wire transfer of immediately available funds to
an account specified therefor by Prior the aggregate purchase price for the
Prior Repurchase Shares, (ii) the Company shall pay by wire transfer of
immediately available funds to an account specified therefor by the Trust the
aggregate purchase price for the Trust Shares, (iii) Prior shall deliver to
the Company the Prior Repurchase Shares duly endorsed in blank for transfer or
accompanied by a duly executed stock power assigning the Prior Repurchase
Shares in blank, (iv) the Trust shall deliver to the Company the Trust Shares
duly endorsed in blank for transfer or accompanied by a duly executed stock
power assigning the Trust Shares in blank, (v) the Company shall issue
3,325,000 shares of Class A Common Stock to ▇▇▇▇▇▇▇ registered in such names
and denominations as ▇▇▇▇▇▇▇ shall request, (vi) the Company shall issue
2,927,038 shares of Class B Common Stock to Prior registered in such names and
denominations as Prior shall request, (vii) ▇▇▇▇▇▇▇ shall deliver to the
Company the ▇▇▇▇▇▇▇ Shares duly endorsed in blank or accompanied by a duly
executed stock power assigning the ▇▇▇▇▇▇▇ Shares in blank and (viii) Prior
shall deliver to the Company the Prior Exchange Shares duly endorsed in blank
or accompanied by a duly executed stock power assigning the Prior Exchange
Shares in blank.
Section 4.02. Further Assurances. Each of the parties agrees that after the
Closing, upon reasonable request of the other party, it will do, execute,
deliver and acknowledge, and will cause to be done, executed, delivered and
acknowledged, all such further acts, deeds, certificates, assignments,
transfers, conveyances, powers of attorney and other documents as may be
reasonably required to consummate the transactions contemplated hereby. Each
of Prior, ▇▇▇▇▇▇▇ and the Trust agree to vote all shares of Company Common
Stock owned or controlled by them in favor of the Transactions at the Special
Meeting (as defined in the Merger Agreement).
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01. Termination. This Recapitalization Agreement shall terminate
upon any termination of the Subscription Agreement or the Merger Agreement. In
addition, this Recapitalization Agreement may be terminated at any time prior
to the Closing by mutual written consent of each party hereto. In the event of
any such termination, no party shall have any liability of any kind to any
other party.
Section 5.02. Entire Agreement. This Recapitalization Agreement, together
with all other written agreements which may be entered into between the
parties in connection herewith and the transactions contemplated hereby and
all other documents and instruments delivered in connection herewith and
therewith and the transactions contemplated hereby and thereby, set forth the
full and complete understanding of the parties hereto with respect to the
transactions contemplated hereby.
Section 5.03. Governing Law. This Recapitalization Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without reference to the conflict of laws rules thereof.
3
Section 5.04. Headings. The headings in this Recapitalization Agreement are
intended solely for convenience of reference and shall be given no effect in
the interpretation of this Recapitalization Agreement.
Section 5.05. Counterparts. This Recapitalization Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
Section 5.06. Benefits. This Recapitalization Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder.
Section 5.07. Assignment. Neither this Recapitalization Agreement nor any
right hereunder may be assigned by the parties hereto without the prior
written consent of the other parties. Subject to the foregoing, this
Recapitalization Agreement shall be binding upon and inure to the benefit of
the successors, heirs, representatives and assigns of each party hereto.
Section 5.08. Amendment and Waiver. This Recapitalization Agreement may be
amended only by an instrument in writing signed on behalf of each of the
parties hereto. Any term, condition or provision of this Recapitalization
Agreement may be waived (if in writing) at any time by the party or each of
the parties entitled to the benefits thereof.
Section 5.09. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
given if delivered by hand, or when sent by telex or telecopier (with receipt
confirmed) or by registered mail, return receipt requested, addressed as
follows (or to such other address as a party may designate by notice to the
other):
(a)If to the Company or Prior:
Atlantic Tele-Network, Inc.
Estate Havensight
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. Prior
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b)If to ▇▇▇▇▇▇▇:
c/o Atlantic Tele-Network, Inc.
Chase Financial Center
▇.▇. ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
4
with copies to:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c)If to the Trust:
c/o ▇▇▇▇▇▇▇▇▇ ▇. Prior
Atlantic Tele-Network, Inc.
Estate Havensight
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 5.10. Best Efforts. Each of the parties hereto shall use his or its
best efforts to cause the Transactions to be consummated. Without limiting the
generality of the foregoing, (i) Prior, individually and as trustee of the
Trust, and ▇▇▇▇▇▇▇ agree to vote all of their shares of Company Common Stock
in favor of the approval of the Transactions and the adoption of the Merger
Agreement and the Charter Amendment, (ii) each of the parties hereto shall
execute all contracts, documents and instruments, the execution of which is
contemplated as a condition to closing under this Recapitalization Agreement,
the Subscription Agreement or the Merger Agreement, (iii) each of the parties
shall promptly, at the request of counsel to the Company or counsel to ECI,
supply such counsel with letters of representation reasonable under the
circumstances as to facts or statements of intention represented to the
Internal Revenue Service in connection with the Company's application for the
Tax Ruling (as defined in the Subscription Agreement) and (iv) each of the
parties shall take all steps within his or its control to cause the other
conditions to closing of the Transactions to be consummated and shall
generally use his or its best efforts to cause the Transactions to be
consummated.
Section 5.11. Tax Treatment. The Company and Prior, individually and as
trustee of the Trust, agree to report for tax purposes the purchase of the
Prior Repurchase Shares and the Trust Shares pursuant to Article I hereof as
distributions of property to which Section 301 of the Internal Revenue Code of
1986, as amended, applies.
5
IN WITNESS WHEREOF, each of the parties hereto has caused this
Recapitalization Agreement to be duly executed, all as of the date first
written above.
ATLANTIC TELE-NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Prior
__________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. Prior
Title: Co-Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Co-Chief Executive Officer
1994 PRIOR CHARITABLE REMAINDER
TRUST
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Prior
__________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. Prior
Title: Trustee
/s/ ▇▇▇▇▇▇▇▇▇ ▇. Prior
___________________________________
▇▇▇▇▇▇▇▇▇ ▇. Prior
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
6
EXHIBIT A TO
REPURCHASE AND
RECAPITALIZATION
AGREEMENT
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ATLANTIC TELE-NETWORK, INC.
ATLANTIC TELE-NETWORK, INC., a corporation organized and existing under the
laws of the State of Delaware, does hereby certify as follows:
FIRST: The name of the Corporation is ATLANTIC TELE-NETWORK, INC. (the
"Corporation"). The original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on August 4, 1989.
SECOND: This Amended and Restated Certificate of Incorporation has been
duly adopted pursuant to Section 245 of the General Corporation Law of the
State of Delaware (the "GCL"). The Corporation certifies that amendments
effected by this Amended and Restated Certificate of Incorporation have
been adopted in accordance with Section 242 of the GCL.
THIRD: The text of the Corporation's Certificate of Incorporation as
heretofore amended or supplemented is hereby further amended and restated
to read in its entirety as follows:
ARTICLE ONE
NAME
The name of the Corporation is Atlantic Tele-Network, Inc.
ARTICLE TWO
REGISTERED OFFICE
The address of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in the City of Wilmington,
County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE THREE
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE FOUR
CAPITAL STOCK
1. Authorized Capital Stock. The total number of shares of all classes of
capital stock which the Corporation shall have the authority to issue is
36,252,038 shares divided into two classes of which
(i) 10,000,000 shares, par value $.01 per share, shall be designated
Preferred Stock,
(ii) 20,000,000 shares, par value $.01 per share, shall be designated Common
Stock,
(iii) 3,325,000 shares, par value $.01 per share, shall be designated Class
A Common Stock, and
(iv) 2,927,038 shares, par value $.01 per share, shall be designated Class B
Common Stock.
7
2. Terms of the Preferred Stock
2.1 Issuance. The Board of Directors is expressly authorized, subject to
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in one or more series, to establish the number of shares to be
included in each such series, and to fix the designations, powers,
preferences, and rights of the shares of each such series, and any
qualifications, limitations, or restrictions thereof.
The authority of the Board with respect to each series shall include, but not
be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and whether they shall be payable in preference to, or in another
relation to, the dividends payable to any other class or classes or
series of stock;
(c) Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion or exchange privileges, and,
if so, the terms and conditions of such conversion or exchange,
including provision for adjustment of the conversion or exchange rate
in such events as the Board of Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the manner
of selecting shares for redemption if less than all shares are to be
redeemed, the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
(f) Whether that series shall be entitled to the benefit of a sinking fund
to be applied to the purchase or redemption of shares of that series,
and, if so, the terms and amounts of such sinking fund;
(g) The right of the shares of that series to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or
any subsidiary, upon the issue of any additional stock (including
additional shares of such series or of any other series) and upon the
payment of dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the Corporation or any
subsidiary of any outstanding stock of the Corporation;
(h) The right of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation
and whether such rights shall be in preference to, or in another
relation to, the comparable rights of any other class or classes or
series of stock; and
(i) Any other power, preference or relative, participating, optional or
other special rights, qualifications, limitations or restrictions of
that series.
3. Terms of the Common Stock
3.1 Dividends. Subject to the preferential rights, if any, of the Preferred
Stock, the holders of shares of Common Stock, Class A Common Stock and Class B
Common Stock shall be entitled to receive, when and if declared by the Board
of Directors, out of the assets of the Corporation which are by law available
therefor, dividends payable either in cash, in property, or in shares of the
Corporation's capital stock.
3.2 Voting Rights. Subject to the preferential rights, if any, of the
Preferred Stock and except as otherwise provided by applicable law, at every
annual or special meeting of stockholders of the Corporation, every holder of
Common Stock, Class A Common Stock and Class B Common Stock shall be entitled
to one vote, in person or by proxy, for each share of Common Stock, Class A
Common Stock and Class B Common Stock standing in his name on the books of the
Corporation.
8
3.3 Liquidation, Dissolution, or Winding Up. In the event of any voluntary
or involuntary liquidation, dissolution, or winding up of the affairs of the
Corporation, after payment or provision for payment of the debts and other
liabilities of the Corporation and of the preferential amounts, if any, to
which the holders of Preferred Stock shall be entitled, the holders of all
outstanding shares of Common Stock, Class A Common Stock and Class B Common
Stock shall be entitled to share ratably in the remaining net assets of the
Corporation.
3.4 Rights of Class A Common Stock and Class B Common Stock. All rights of
the Class A Common Stock and Class B Common Stock shall be identical to the
rights of the Common Stock, except in a merger, consolidation or sale of
assets of the Corporation the Class A Common Stock and the Class B Common
Stock shall have the right to receive separate and distinct consideration from
the Common Stock as determined by the Board of Directors.
ARTICLE FIVE
DIRECTORS
1. Management. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation.
2. By-Laws. The board of directors is expressly authorized to adopt, amend,
or repeal the by-laws of the Corporation.
3. No Ballot. Elections of directors need not be by written ballot unless
the by-laws of the Corporation shall otherwise provide.
4. Limitation of Liability. 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; provided, however, that the
foregoing shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing 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. If
the General Corporation Law of the State of Delaware is hereafter amended to
permit further elimination or limitation of the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware as so amended. Any repeal or
modification of this Article FIVE shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE SIX
EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE SEVEN
COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions
of Section 291 of Title 8 of the Delaware Code or on the application of
trustees
9
in dissolution or of any receiver or receivers appointed for this Corporation
under the provisions of Section 279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which said application has been made, be binding on all the
creditors or class of creditors, and/or on all of the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE EIGHT
AMENDMENT
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, Atlantic Tele-Network, Inc. has caused this Amended and
restated Certificate of Incorporation to be signed and attested by its duly
authorized officers, this day of October, 1997.
Atlantic Tele-Network, Inc.
By: _________________________________
Name:
Title:
Attest:
By: ______________________________________
Name:
Title:
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