UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 2)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT
_______________________________________________________________________________
SunCom Wireless Holdings, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 23-2974475
(State of Incorporation or Organization) (IRS Employer Identification No.)
1100 Cassatt Road
Berwyn, Pennsylvania 19312
(Address of Principal Executive Offices) (Zip Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
So Registered Each Class Is Registered
Class A Common Stock, par value $0.01 per share New York Stock Exchange
(see Explanatory Note)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
Securities Act registration statement file number to which this form relates:
Not applicable.
Securities to be registered pursuant to Section 12(g) of the Act: None.
EXPLANATORY NOTE
In this registration statement, "we," "us" and "our" refers to SunCom
Wireless Holdings, Inc., unless the context requires otherwise.
Our Class A common stock is registered with the New York Stock Exchange,
but trading has been suspended. We have appealed this trading suspension;
however, the timing and outcome of the appeal process remains uncertain. Our
Class A common stock is currently traded on the Over the Counter Bulletin
Board under the trading symbol "SCWH".
Item 1. Description of Registrant's Securities to be Registered.
Authorized Capital Stock
We have authority to issue 650,000,000 shares of capital stock consisting
of (a) 70,000,000 shares of preferred stock, par value $0.01 per share, and (b)
580,000,000 shares of Class A common stock, par value $0.01 per share. We
currently have no series of issued and outstanding preferred stock. The rights,
preferences and privileges of holders of shares of our Class A common stock are
subject to, and may be adversely affected by, the rights of the holders of
shares of any series of preferred stock that we may designate and issue in the
future without stockholder approval.
Class A Common Stock
Voting Rights. All shares of Class A common stock have identical rights
and privileges. The holders of shares of our Class A common stock are entitled
to vote on all matters submitted to a vote of our stockholders, including the
election of directors. On all matters to be voted on by holders of shares of our
Class A common stock, the holders will be entitled to one vote for each share of
our Class A common stock held of record and will have no cumulative voting
rights.
Dividend Rights. Subject to limitations under Delaware law, preferences
that may apply to any outstanding shares of preferred stock and contractual
restrictions, holders of our Class A common stock are entitled to receive
ratably dividends or other distributions when and if declared by our board of
directors. The ability of our board of directors to declare dividends, however,
will be subject to the rights of any holders of outstanding shares of our
preferred stock and the availability of sufficient funds under the General
Corporation Law of the State of Delaware to pay dividends. Our ability to pay
dividends also is restricted by the terms of the indenture governing the 8 1/2%
senior notes due 2013 issued by our subsidiary, SunCom Wireless, Inc., and the
credit agreement governing SunCom Wireless' senior secured term loan.
Liquidation Preference. In the event of our liquidation, dissolution or
winding up, after the payment in full of all amounts owed to our creditors and
holders of any outstanding shares of our preferred stock, our remaining assets
will be distributed ratably to the holders of shares of our Class A common
stock.
Other Rights. Holders of our Class A common stock do not have preemptive,
subscription, redemption or conversion rights.
Blank Check Preferred Stock
Our board of directors is authorized to issue from time to time, without
stockholder approval, up to an aggregate of 70,000,000 shares of preferred stock
in one or more series and to fix or alter the designations, preferences, rights
and any qualifications, limitations or restrictions of the shares of each
series, including the dividend rights, dividend rates, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions),
redemption price or prices, liquidation preferences and the number of shares
constituting any series. We may issue preferred stock in ways that may delay,
defer or prevent a change in control without further action by our stockholders
and may affect the voting and other rights of the holders of our Class A common
stock. The issuance of preferred stock with voting and conversion rights also
may adversely affect the voting power of the holders of our Class A common
stock, including the loss of voting control to others.
Anti-Takeover Provisions
The Delaware General Corporation Law contains, and our second restated
certificate of incorporation and second amended and restated bylaws contain, a
number of provisions which may have the effect of discouraging transactions that
involve an actual or threatened change of control. In addition, provisions of
our second restated certificate of incorporation and second amended and restated
bylaws may be deemed to have anti-takeover effects and may delay, defer or
prevent a tender offer or takeover attempt that a stockholder might consider in
his, her or its best interest, including those attempts that might result in a
premium over the market price of the shares held by our stockholders.
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Delaware General Corporation Law. We are subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prohibits a
publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years from the date of
the transaction in which the person became an interested stockholder, unless the
interested stockholder attained this status with the approval of the board or
unless the business combination was approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested stockholder. Subject to exceptions, an
"interested stockholder" is a person who, together with affiliates and
associates, owns, or within three years owned, 15% or more of the corporation's
voting stock. This statute could prohibit or delay the accomplishment of mergers
or other takeover or change in control attempts with respect to us and,
accordingly, may discourage attempts to acquire us.
Classified Board of Directors. Our board of directors consists of up to 10
directors, and each director serves until his or her successor has been duly
elected and qualified, or until his or her earlier death, resignation or
removal. Our board of directors is divided into three classes of directors. Each
class serves a staggered three-year term. As a result, approximately one-third
of the board of directors are elected each year. Generally a director will stand
for election only once every three years. The classified board provision could
have the effect of discouraging a third party from making a tender offer or
otherwise attempting to obtain control of us, even though the attempt might be
beneficial to us and our stockholders. In addition, the classified board
provision could delay stockholders who do not agree with the policies of the
board from removing a majority of the board for two years.
Special Meetings of Stockholders. Special meetings of the stockholders may
be called at any time by the Chairman of the board of directors, the chief
executive officer (or, in his absence, by the president) or by the board of
directors. Stockholders holding in the aggregate in excess of 50% of the
outstanding shares may also request a special meeting.
Amendments to Second Restated Certificate of Incorporation or Second
Amended and Restated Bylaws. Any amendment to our second restated certificate of
incorporation or second amended and restated bylaws must be approved by the
affirmative vote of the holders of shares of Class A common stock representing
at least two-thirds of the votes entitled to be cast for the election of
directors, voting together as a single class, subject to the separate class vote
requirements relating to any class or series of preferred stock.
Other Provisions. Our second restated certificate of incorporation, second
amended and restated bylaws and an Exchange Agreement dated January 31, 2007, as
amended on May 15, 2007, provide, in general, that:
o the directors in office will fill any vacancy or newly created
directorship on the board of directors, with any new director to
serve for the remaining term of the class of directors to which he
is elected, except that (1) any vacancy created as a result of
Michael E. Kalogris, our Chairman of the Board and Chief Executive
Officer, or Scott I. Anderson, Chairman of the audit committee of
the board of directors, ceasing to be a director prior to any sale
of the company or the termination of the sale process currently being
undertaken, either Messrs. Kalogris or Anderson remaining as a
director, as applicable, will select the replacement for the vacancy,
subject to the reasonable approval of the board of directors,
and (2) in the case of any vacancy created with respect to a director
designated by a stockholder that is party to the Exchange Agreement,
as amended, prior to the 2008 annual meeting of stockholders, such
vacancy will be filled by a new director selected by such
stockholder, subject to the reasonable approval of the board of
directors (for more information regarding directors designated
pursuant to the Exchange Agreement, as amended, see Items 1.01 and
5.02 of our Form 8-K filed on May 21, 2007); and
o directors may be removed only for cause and only by the affirmative
vote of the holders of a majority of the outstanding shares of
voting stock cast at an annual or special meeting or by written
consent.
The second amended and restated bylaws also require that stockholders
wishing to bring any business, including director nominations, before an annual
meeting of stockholders must deliver written notice to us not less than 60 days
or more than 90 days prior to the date of the annual meeting of stockholders.
If, however, less than 70 days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder must be
delivered to us not later than the close of business on the 10th day following
the day on which we publicly announce the date of our annual meeting. The second
amended and restated bylaws also specify requirements as to the form and content
of the stockholder's notice. These provisions may preclude stockholders from
bringing matters before an annual meeting or a special meeting of stockholders
or from making nominations for directors at an annual meeting of stockholders.
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Issuance of Blank Check Preferred Stock. Our board of directors is
authorized to issue, without further action by the stockholders, up to
70,000,000 shares of preferred stock with rights and preferences, designated
from time to time by the board of directors. The existence of authorized but
unissued shares of preferred stock may enable our board of directors to render
more difficult or to discourage an attempt to obtain control by means of a
merger, tender offer, proxy contest or otherwise.
Registration Rights
Under a Registration Rights Agreement, dated as of May 15, 2007, among us,
SunCom Wireless Investment Company LLC and the stockholders who acquired shares
under the Exchange Agreement, as amended, such stockholders are entitled to
certain demand and piggyback registration rights on the terms and conditions set
forth in the Registration Rights Agreement. For more details, see the
Registration Rights Agreement incorporated as Exhibit 10.1 with this
registration statement.
Transfer Agent
The transfer agent and registrar for our Class A common stock is
Computershare.
Item 2. Exhibits.
Exhibit Number Description
2.1 Exchange Agreement among SunCom Wireless Holdings, Inc.,
SunCom Wireless Investment Co., LLC, SunCom Wireless, Inc.
and the holders of the 9Senior Subordinated Notes due 2011
and 8 3/4% Senior Subordinated Notes due 2011 of SunCom
Wireless, Inc. party thereto (incorporated by reference to
Exhibit 2.1 to the Form 8-K of SunCom Wireless Holdings,
Inc. filed January 31, 2007).
2.2 Amendment No. 1 to Exchange Agreement, dated as of May 15,
2007, among SunCom Wireless Holdings, Inc., SunCom Wireless
Investment Company LLC, and the holders of the 9 3/8% Senior
Subordinated Notes due 2011 and 8 3/4% Senior Subordinated
Notes due 2011 of SunCom Wireless, Inc. party thereto
(incorporated by reference to Exhibit 2.1 to the Form 8-K
of SunCom Wireless Holdings, Inc. filed May 21, 2007).
2.3 Agreement and Plan of Merger between SunCom Wireless
Holdings, Inc. and SunCom Merger Corp. (incorporated by
reference to Exhibit 2.2 to the Form 8-K of SunCom Wireless
Holdings, Inc. filed January 31, 2007).
3.1 Second Restated Certificate of Incorporation of SunCom
Wireless Holdings, Inc.
3.2 Second Amended and Restated Bylaws of SunCom Wireless
Holdings, Inc. (incorporated by reference to Exhibit 3.6 to
the Form 10-Q of Triton PCS Holdings, Inc. for the quarter
ended September 30, 1999).
4.1 Specimen Class A Common Stock Certificate.
10.1 Registration Rights Agreement, dated as of May 15, 2007,
among SunCom Wireless Holdings, Inc., SunCom Wireless
Investment Company LLC, and the holders of the 9 3/8%
Senior Subordinated Notes due 2011 and 8 3/4% Senior
Subordinated Notes due 2011 of SunCom Wireless, Inc. party
thereto (incorporated by reference to Exhibit 10.1 to the
Form 8-K of SunCom Wireless Holdings, Inc. filed
May 21, 2007).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
SUNCOM WIRELESS HOLDINGS, INC.
Date: May 23, 2007 By: /s/ Eric Haskell
--------------------------------
Eric Haskell
Executive Vice President and
Chief Financial Officer
Exhibit 3.1
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
SUNCOM WIRELESS HOLDINGS, INC.
ARTICLE I
The name of the Corporation shall be SunCom Wireless Holdings, Inc.
ARTICLE II
The address of the Corporations registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County,
Delaware 19808. The name of its registered agent at such address is
Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in, carry on and conduct
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware (the "GCL").
ARTICLE IV
4.1 Classes of Stock. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is
650,000,000, consisting of (a) 70,000,000 shares of preferred stock, par value
$0.01 per share (the "Preferred Stock"), and (b) 580,000,000 shares of common
stock, par value $0.01 per share (the "Common Stock"), all of which are
designated Class A Common Stock (the "Class A Common Stock"). (Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in Section 4.5).
4.2 Preferred Stock.
(a) The Board of Directors of the Corporation
(the "Board of Directors") is hereby expressly authorized, by resolution or
resolutions, to provide, out of the unissued shares of Preferred Stock, for
series of Preferred Stock. Before any shares of any such series are issued,
the Board of Directors shall fix, and hereby is expressly empowered to fix, by
resolutions, the following provisions of the shares thereof:
(i) the designation of such series, the number
of shares to constitute such series and the stated value thereof if
different from the par value thereof;
(ii) whether the shares of such series shall
have voting rights, in addition to any voting rights provided by law,
and, if so, the terms of such voting rights, which may be general or
limited;
(iii) the dividends, if any, payable on such
series, whether any such dividends shall be cumulative, and, if so, from
what dates, the conditions and dates upon which such dividends shall be
payable, the preference or relation which such dividends shall bear to
the dividends payable on any shares of stock of any other class or any
other series of this class;
(iv) whether the shares of such series shall be
subject to redemption by the Corporation, and, if so, the times, prices
and other conditions of such redemption;
(v) the amount or amounts payable upon shares
of such series upon, and the rights of the holders of such series in,
the voluntary or involuntary liquidation, dissolution or winding up, or
upon any distribution of the assets, of the Corporation;
(vi) whether the shares of such series shall be
subject to the operation of a retirement or sinking fund and, if so,
the extent to and manner in which any such retirement or sinking fund
shall be applied to the purchase or redemption of the shares of such
series for retirement or other corporate purposes and the terms and
provisions relative to the operation thereof;
(vii) whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other
class or any other series of this class or any other securities and, if
so, the price or prices or the rate or rates of conversion or exchange
and the method, if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
(viii) the limitations and restrictions, if any,
to be effective while any shares of such series are outstanding upon the
payment of dividends or the making of other distributions on, and upon
the purchase, redemption or other acquisition by the Corporation of, the
Common Stock or shares of stock of any other class or any other series
of this class;
(ix) the conditions or restrictions, if any,
upon the creation of indebtedness of the Corporation or upon the issue
of any additional stock, including additional shares of such series or
of any other series of this class or of any other class; and
(x) any other powers, preferences and relative,
participating, optional and other special rights, and any
qualifications, limitations and restrictions thereof.
(b) The powers, preferences and relative, participating,
optional and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding. All shares of any
one series of Preferred Stock shall be identical in all respects with all other
shares of such series, except that shares of any one series issued at different
times may differ as to the dates from which dividends thereon shall be
cumulative.
(c) Shares of Preferred Stock of any series that have been
redeemed (whether through the operation of a sinking fund or otherwise) or
that, if convertible or exchangeable, have been converted into or exchanged for
any other security shall have the status of authorized and unissued shares of
Preferred Stock of the same series and may be reissued as a part of the series
of which they were originally a part or may be reclassified and reissued as
part of a new series of shares of Preferred Stock to be created by resolution
or resolutions of the Board of Directors or as part of any other series of
shares of Preferred Stock, all subject to the conditions or restrictions on
issuance set forth in the resolution or resolutions adopted by the Board of
Directors providing for the issue of any series of shares of Preferred Stock.
(d) Subject to the provisions of this Second Restated
Certificate of Incorporation and except as otherwise provided by law, the
stock of the Corporation, regardless of class, may be issued for such
consideration and for such corporate purposes as the Board of Directors may
from time to time determine.
4.3 Common Stock. Each holder of Class A Common Stock shall
be entitled to one vote for each share of Class A Common Stock held of record
on all matters on which stockholders generally are entitled to vote and to all
other rights, powers and privileges of stockholders under Delaware law. Upon
the dissolution, liquidation or winding up of the Corporation, after any
preferential amounts to be distributed to the holders of the Preferred Stock
and any other class or series of stock having a preference over the Class A
Common Stock then outstanding have been paid or declared and funds sufficient
for the payment thereof in full set apart for payment, the entire remaining
assets and funds of the Corporation legally available for distribution, if any,
shall be distributed among the holders of Class A Common Stock in proportion
to the shares of Class A Common Stock then held by them.
4.4 Redemption of Capital Stock. Notwithstanding any other
provision of this Second Restated Certificate of Incorporation to the contrary,
outstanding shares of capital stock of the Corporation held by Disqualified
Holders shall always be subject to redemption by the Corporation, by action of
the Board of Directors, if, in the judgment of the Board of Directors, such
action should be taken, pursuant to Section 151(b) of the GCL or any other
applicable provision of law, to the extent necessary to prevent the loss or
secure the reinstatement of any license or franchise from any governmental
agency held by the Corporation or any of its Subsidiaries to conduct any
portion of the business of the Corporation or any of its Subsidiaries, which
license or franchise is conditioned upon some or all of the holders of the
Corporations stock possessing prescribed qualifications. The terms and
conditions of such redemption shall be as follows:
(a) the redemption price of the shares to be redeemed
pursuant to this Section 4.4 shall be equal to the lesser of (i) the Market
Price or (ii) if such stock was purchased by such Disqualified Holder within
one year of the Section 4.4 Redemption Date, such Disqualified Holders purchase
price for such shares;
(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(c) if less than all the shares held by Disqualified Holders
are to be redeemed, the shares to be redeemed shall be selected in such manner
as shall be determined by the Board of Directors, which may include selection
first of the most recently purchased shares thereof, selection by lot or
selection in any other manner determined by the Board of Directors;
(d) at least thirty (30) days written notice of the
Section 4.4 Redemption Date shall be given to the record holders of the shares
selected to be redeemed (unless waived in writing by any such holder);
provided, however, that only ten (10) days written notice of the Redemption
Date shall be given to record holders if the cash or Redemption Securities
necessary to effect the redemption shall have been deposited in trust for the
benefit of such record holders and subject to immediate withdrawal by them
upon surrender of the stock certificates for their shares to be redeemed;
provided, further, that the record holders of the shares selected to be
redeemed may transfer such shares prior to the Section 4.4 Redemption Date to
any holder that is not a Disqualified Holder and, thereafter, for so long as
such shares are not held by a Disqualified Holder, such shares shall not be
subject to redemption by the Corporation;
(e) from and after the Section 4.4 Redemption Date, any and
all rights of whatever nature (including without limitation any rights to vote
or participate in dividends declared on stock of the same class or series as
such shares) with respect to the shares selected from redemption held by
Disqualified Holders on the Section 4.4 Redemption Date shall cease and
terminate and such Disqualified Holders thenceforth shall be entitled only to
receive the cash or Redemption Securities payable upon redemption; and
(f) such other terms and conditions as the Board of Directors
shall determine.
4.5 Definitions. For the purposes of this Second Restated
Certificate of Incorporation, the following terms shall have the meanings
indicated:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, the term control (including the terms controlling and controlled)
means the power to direct or cause the direction of the management and policies
of a Person, directly or indirectly, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise.
"Board of Directors" has the meaning assigned to such term in Section 4.2(a).
"Class A Common Stock" has the meaning assigned to such term in Section 4.1.
"Closing Price" shall mean, with respect to each share of any class or
series of capital stock for any day, (i) the last reported sale price regular
way or, in case no such sale takes place on such day, the average of the closing
bid and asked prices regular way, in either case as reported on the principal
national securities exchange on which such class or series of capital stock is
listed or admitted for trading or (ii) if such class or series of capital stock
is not listed or admitted for trading on any national securities exchange, the
last reported sale price or, in case no such sale takes place on such day, the
average of the highest reported bid and the lowest reported asked quotation for
such class or series of capital stock, in either case as reported on an
automated quotation system.
"Common Stock" has the meaning assigned to such term in Section 4.1.
"Disqualified Holder" shall mean any holder of shares of capital stock of
the Corporation whose holding of such stock, either individually or when taken
together with the holding of shares of capital stock of the Corporation by any
other holders, may result, in the judgment of the Board of Directors, in the
loss of, or the failure to secure the reinstatement of, any license or franchise
from any governmental agency held by the Corporation or any of its Subsidiaries
or Affiliates to conduct any portion of the business of the Corporation or any
of its Subsidiaries or Affiliates.
"Market Price" shall mean, with respect to each share of any class or
series of capital stock for any day, (i) the average of the daily Closing
Prices for the ten consecutive trading days commencing fifteen (15) days before
the day in question or (ii) if on such date the shares of such class or series
of capital stock are not listed or admitted for trading on any national
securities exchange and are not quoted on an automated quotation system, the
cash amount that a willing buyer would pay a willing seller (neither acting
under compulsion) in an arms-length transaction without time constraints
per share of such class or series of capital stock as of such date, viewing the
Corporation on a going concern basis, as determined in good faith by the Board
of Directors, whose determination shall be conclusive; provided that, in
determining such cash amount, the following shall be ignored: (i) any contract
or legal limitation in respect of shares of Common Stock or Preferred Stock,
including transfer, voting and other rights, and (ii) any illiquidity arising by
contract in respect of the shares of Common Stock and any voting rights or
control rights amongst the stockholders.
"Person" shall mean any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
governmental agency or political subdivision thereof or other entity of any
kind, and shall include any successor (by merger or otherwise) of such entity.
"Preferred Stock" has the meaning assigned to such term in Section 4.1.
"Redemption Securities" shall mean any debt or equity securities of the
Corporation, any of its Subsidiaries or Affiliates or any other corporation, or
any combination thereof, having such terms and conditions as shall be approved
by the Board of Directors and which, together with any cash to be paid as part
of the redemption price payable pursuant to Section 4.4, in the opinion of any
nationally recognized investment banking firm selected by the Board of Directors
(which may be a firm which provides investment banking, brokerage or other
services to the Corporation), has a value at the time notice of redemption is
given pursuant to Section 4.4(d) at least equal to the price required to be paid
pursuant to Section 4.4(a) (assuming, in the case of Redemption Securities to be
publicly traded, that such Redemption Securities were fully distributed and
subject only to normal trading activity).
"Section 4.4 Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the Corporation pursuant
to Section 4.4.
"Subsidiary" shall mean, with respect to any Person, a corporation or
other entity of which 50% or more of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
ARTICLE V
5.1 Number, Election and Terms of Directors. The number
of Directors of the Corporation will be fixed from time to time in the manner
provided in the Bylaws of the Corporation (the "Bylaws"). The Directors will
be classified with respect to the time for which they severally hold office
into three classes, as nearly equal in number as possible, designated Class I,
Class II and Class III. The Directors first appointed to Class I will hold
office for a term expiring at the annual meeting of stockholders to be held in
2000, the Directors first appointed to Class II will hold office for a term
expiring at the annual meeting of stockholders to be held in 2001, and the
Directors first appointed to Class III will hold office for a term expiring at
the annual meeting of stockholders to be held in 2002, with the members of
each class to hold office until their successors are elected and qualified. At
each annual meeting of the stockholders of the Corporation, the successors to
the class of Directors whose term expires at that meeting will be elected by
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election. Election of Directors of the Corporation need not
be by written ballot.
5.2 Removal of Directors. Subject to the rights of the
holders of any series of Preferred Stock, any Director may be removed at any
time but only for cause and only upon the affirmative vote of the holders of
a majority of the outstanding shares of stock of the Corporation entitled to
vote for the election of such Director, voting together as a single class,
cast at an annual meeting or at a special meeting of stockholders called for
that purpose, or by written consent. Subject to the rights of the holders of
any series of Preferred Stock, any vacancy in the Board of Directors caused by
any such removal may be filled at such meeting or by written consent, by the
stockholders entitled to vote for the election of the Director so removed.
Subject to the rights of the holders of any series of Preferred Stock, if such
stockholders do not fill such vacancy at such meeting or by written consent,
such vacancy may be filled in the manner provided in Section 5.3.
5.3 Vacancies and Newly Created Directorships. Subject to
the rights of the holders of any series of Preferred Stock, if any vacancies
shall occur in the Board of Directors by reason of death, resignation, removal
or otherwise, or if the authorized number of Directors shall be increased,
the Directors then in office shall continue to act, and such vacancies and
newly created directorships may be filled by a majority of the Directors then
in office, although less than a quorum, or by a sole remaining Director.
Any Director elected to fill a vacancy or a newly created directorship in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until his or her successor has been
elected and qualified or until his or her earlier death, resignation or
removal. No decrease in the number of Directors constituting the Board may
shorten the term of any incumbent Director.
ARTICLE VI
Subject to the separate class vote requirements relating to any class
or series of Preferred Stock, the holders of shares of Class A Common Stock
representing at least two-thirds (2/3) of the votes entitled to be cast for
the election of directors of the Corporation, voting together as a single
class, in person or by proxy, at a special or annual meeting of stockholders
called for the purpose, or by written consent, may amend, alter or repeal this
Second Restated Certificate of Incorporation or the Bylaws.
ARTICLE VII
7.1 Indemnification. Any individual who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding (a Proceeding), whether civil, criminal,
administrative, or investigative (whether or not by or in the right of the
Corporation), by reason of the fact that such individual, or an individual of
whom such individual is the legal representative, is or was a director,
officer, incorporator, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, incorporator,
employee, partner, trustee, or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
(an Other Entity), shall be indemnified by the Corporation to the full extent
then permitted by law against expenses (including counsel fees and
disbursements), judgments, fines (including excise taxes assessed on an
individual with respect to an employee benefit plan), and amounts paid in
settlement incurred by him or her in connection with such Proceeding.
Any other individual may be similarly indemnified in respect of service to the
Corporation or to an Other Entity at the request of the Corporation to the
extent the Board of Directors at any time specifies that any such individual
is entitled to the benefits of this Article VII.
7.2 Advancement of Expenses. The Corporation shall,
from time to time, reimburse or advance to any Director or officer or such
other individual entitled to indemnification hereunder the funds necessary for
payment of expenses, including attorneys fees and disbursements, incurred in
connection with any Proceeding, in advance of the final disposition of such
Proceeding; provided, however, that, if (and only if) required by the GCL,
such expenses incurred by or on behalf of any Director or officer or other
individual may be paid in advance of the final disposition of a Proceeding only
upon receipt by the Corporation of an undertaking, by or on behalf of such
Director or officer (or other individual indemnified hereunder), to repay any
such amount so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right of appeal that such Director,
officer or other individual is not entitled to be indemnified for such expenses.
7.3 Rights Not Exclusive. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this Article VII shall not be deemed exclusive of any other rights to which
an individual seeking indemnification or reimbursement or advancement of
expenses may have or hereafter be entitled under any statute, this Second
Restated Certificate of Incorporation, the Bylaws, any agreement, any vote of
stockholders or disinterested Directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
such office.
7.4 Continuing Rights. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this Article VII shall continue as to an individual who has ceased to be a
Director or officer (or other individual indemnified hereunder), shall inure to
the benefit of the executors, administrators, legatees and distributees of such
individual, and in either case, shall inure whether or not the claim asserted is
based on matters which antedate the adoption of this Article VII.
7.5 Insurance. The Corporation shall have power to
purchase and maintain insurance on behalf of any individual who is or was a
Director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation, as a director, officer, employee or agent of an
Other Entity, against any liability asserted against such individual and
incurred by such individual in any such capacity, or arising out of such
individual's status as such, whether or not the Corporation would have the power
to indemnify such individual against such liability under the provisions of this
Article VII, the Bylaws or under Section 145 of the GCL or any other provision
of law.
7.6 Contract Rights; No Repeal. The provisions of this
Article VII shall be a contract between the Corporation, on the one hand, and
each Director and officer who serves in such capacity at any time while this
Article VII is in effect and any other individual indemnified hereunder, on the
other hand, pursuant to which the Corporation and each such Director, officer,
or other individual intend to be legally bound. No repeal or modification of
this Article VII shall affect any rights or obligations with respect to any
state of facts then or, heretofore or thereafter brought or threatened based in
whole or in part upon any such state of facts.
7.7 Enforceability; Burden of Proof. The rights to
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Article VII shall be enforceable by any individual
entitled to such indemnification or reimbursement or advancement of expenses
in any court of competent jurisdiction. The burden of proving that such
indemnification or reimbursement or advancement of expenses is inappropriate
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that such
indemnification or reimbursement or advancement of expenses is proper in the
circumstances nor an actual determination by the Corporation (including its
Board of Directors, its independent legal counsel and its stockholders) that
such individual is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such individual is not so entitled. Such an individual shall
also be indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such Proceeding.
7.8 Service at the Request of the Corporation. Any
Director or officer of the Corporation serving in any capacity in (a) another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held, directly or indirectly, by the Corporation or (b) any
employee benefit plan of the Corporation or any corporation referred to in
clause (a) shall be deemed to be doing so at the request of the Corporation.
7.9 Right to Be Covered by Applicable Law. Any
individual entitled to be indemnified or to reimbursement or advancement of
expenses as a matter of right pursuant to this Article VII may elect to have
the right to indemnification or reimbursement or advancement of expenses
interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
to the extent permitted by law, or on the basis of the applicable law in effect
at the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; provided, however, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be determined
by the law in effect at the time indemnification or reimbursement or advancement
of expenses is sought.
ARTICLE VIII
No Director of the Corporation shall be liable to the Corporation or
any of its stockholders for monetary damages for breach of fiduciary duty as a
Director, provided that this provision does not eliminate the liability of the
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 GCL or (iv) for any transaction from which the Director
derived an improper personal benefit. For purposes of the prior sentence, the
term damages shall, to the extent permitted by law, include without limitation,
any judgment, fine, amount paid in settlement, penalty, punitive damages, excise
or other tax assessed with respect to an employee benefit plan, or expense of
any nature (including, without limitation, counsel fees and disbursements). Each
individual who serves as a Director of the Corporation while this Article VIII
is in effect shall be deemed to be doing so in reliance on the provisions of
this Article VIII, and neither the amendment or repeal of this Article VIII, nor
the adoption of any provision of this Second Restated Certificate of
Incorporation inconsistent with this Article VIII, shall apply to or have any
effect on the liability or alleged liability of any Director of the Corporation
for, arising out of, based upon, or in connection with any acts or omissions of
such Director occurring prior to such amendment, repeal, or adoption of an
inconsistent provision. The provisions of this Article VIII are cumulative and
shall be in addition to and independent of any and all other limitations on or
eliminations of the liabilities of Directors of the Corporation, as such,
whether such limitations or eliminations arise under or are created by any law,
rule, regulation, bylaw, agreement, vote of stockholders or disinterested
Directors, or otherwise.
Exhibit 4.1
[Specimen]
CLASS A COMMON STOCK CLASS A COMMON STOCK
PAR VALUE $0.01 THIS CERTIFICATE IS TRANSFERABLE
IN CANTON, MA AND JERSEY CITY, NJ
Certificate Number Shares
ZQ
[SUNCOM WIRELESS LOGO]
SUNCOM WIRELESS HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP 86722Q 20 7
SEE REVERSE FOR CERTAIN DEFINITIONS
TRANSFER OF THIS CERTIFICATE IS
RESTRICTED SEE LEGEND ON
REVERSE SIDE.
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF CLASS A COMMON STOCK OF
THE PAR VALUE OF ONE CENT ($.01) EACH OF
SunCom Wireless Holdings, Inc. (hereinafter called the "Company") transferable
only upon the books of the Company by the holder hereof in person or by a duly
authorized attorney upon surrender of this Certificate properly endorsed or
assigned. This Certificate and the shares represented hereby are issued under
and are subject to the laws of the State of Delaware and to all provisions of
the Certificate of Incorporation and the Bylaws of the Company, including any
and all amendments as may from time to time be made thereto, to all the terms
and conditions of which the holder, by acceptance thereof, assents. This
Certificate is not valid until countersigned and registered by the Transfer
Agent and Registrar.
In Witness Whereof, the Company has caused this Certificate to be signed by the
facsimile signatures of its duly authorized officers and its facsimile corporate
seal to be hereunto affixed.
Dated:
Chairman and Chief DATED
Executive Officer [SEAL OF SUNCOM
WIRELESS HOLDINGS, INC.]
COUNTERSIGNED AND REGISTERED:
COMPUTERSHARE TRUST COMPANY, N.A.
TRANSFER AGENT AND REGISTRAR
By,____________________________________
Secretary AUTHORIZED SIGNATURE
SUNCOM WIRELESS HOLDINGS, INC.
The Company is authorized to issue more than one class or series of stock. The
Company will furnish without charge to each stockholder who so requests a
statement of the powers, designations, preferences and relative, participating
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT-_______Custodian___________
(Cust) (Minor)
under Uniform Gifts to Minors Act _____________
(State)
UNIF TRF MIN ACT_______Custodian (until age__)_______
(Cust) (Minor)
under Uniform Transfers to Minors Act__________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE,
OF ASSIGNEE)
_________________________________________________ Shares of the Class A
Common Stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint ________________________________________ Attorney to
transfer the said stock on the books of the within named Company with full
power of substitution in the premises.
Dated _____________________20__________
Signature: ___________________________________________________
Signature: ___________________________________________________
Notice: The signature to this assignment must correspond
with the name as written upon the face of the
certificate in every particular, without alteration or
enlargement, or any change whatever.
Signature(s) Guaranteed: Medallion Guaranteed Stamp
____________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (Banks,
Stockbrokers, Savings And Loan Associations
and Credit Unions) WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.