RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN PAGING, INC.
AMERICAN PAGING, INC., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is AMERICAN PAGING, INC. The date
of filing of its original Certificate of Incorporation with the Secretary of
State was April 10, 1980.
2. This Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
corporation by revising such document in its entirety.
3. This text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as herein set forth
in full:
ARTICLE I
The name of the corporation is
AMERICAN PAGING, INC.
ARTICLE II
The address of its registered office in the State of Delaware is
1209 Orange Street, in the City of Wilmington, New Castle County, Delaware
19801. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware; PROVIDED, HOWEVER,
that the corporation, without the written consent of TDS, shall not, directly
or indirectly (through a Subsidiary of the corporation or any other person or
otherwise) for its own account or that of another, own, invest or
otherwise have an interest in, lease, operate or manage any business other
than a business engaged solely in the construction of, the ownership of
interests in and/or the management of radio paging systems.
ARTICLE IV
CAPITALIZATION
(a) AUTHORIZED SHARES. The total number of shares of all classes
of stock which the corporation shall have authority to issue is one hundred
sixty million (160,000,000) shares, consisting of fifty million (50,000,000)
Common Shares with a par value of $1.00 per share; fifty million (50,000,000)
Series A Common Shares with a par value of $1.00 per share; fifty million
(50,000,000) Series B Common Shares with a par value of $1.00 per share; and
ten million (10,000,000) shares of Preferred Stock with a par value of $1.00
per share.
(b) COMMON SHARES, SERIES A COMMON SHARES AND SERIES B COMMON
SHARES. (1) The powers, preferences and rights of the Common Shares, Series
A Common Shares and Series B Common Shares, and the qualifications,
limitations or restrictions thereof, shall be in all respects identical,
except as expressly provided in this Restated Certificate of Incorporation,
as amended, or as otherwise required by law.
(2) At each annual or special meeting of stockholders, each
holder of Common Shares shall be entitled to one (1) vote in person or by
proxy for each Common Share standing in such holder's name on the stock
transfer records of the corporation in connection with all actions submitted
to a vote of stockholders, each holder of Series A Common Shares shall be
entitled to fifteen (15) votes for each Series A Common Share standing in
such holder's name, and holders of Series B Common Shares shall not vote on
any matter, except as expressly provided in this Restated Certificate of
Incorporation, as amended, or as otherwise required by the Delaware General
Corporation Law.
(3) The number of authorized Common Shares and Series B
Common Shares may be increased or decreased (but not below the number of such
shares then outstanding in such class, respectively) by the affirmative vote
of a majority of the Series A Common Shares by the holders thereof.
(c) DIVIDENDS. Dividends may be declared and paid to the holders of
the Common Shares, Series A Common Shares and Series B Common Shares in cash,
property, or other securities of the corporation out of any net profits or net
assets of the corporation legally available therefor. If and when dividends on
the Common Shares, Series A Common Shares and Series B Common
-2-
Shares are declared by the board of directors, whether payable in cash, in
property or in shares of stock of the corporation, the holders of Common
Shares, Series A Common Shares and Series B Common Shares shall be entitled
to share equally, on a per share basis, in such dividends; PROVIDED, HOWEVER,
that if at any time a dividend or other distribution is to be paid in capital
stock of the corporation on capital stock of the corporation, such dividend
or other distribution shall be paid to all holders of common stock of the
corporation and may only be paid as follows:
(1) Common Shares may be paid to holders of Common Shares and
proportionately to holders of Series A Common Shares and
Series B Common Shares;
(2) Common Shares may be paid to holders of Common Shares at the
same time that Series A Common Shares are paid
proportionately to holders of Series A Common Shares and
Series B Common Shares are paid proportionately to holders
of Series B Common Shares;
(3) Series A Common Shares may be paid to holders of Series A
Common Shares and proportionately to holders of Common
Shares and Series B Common Shares; or
(4) Series B Common Shares may be paid to holders of Series B
Common Shares and proportionately to holders of Common
Shares and Series A Common Shares;
and in the case of any such dividend or other distribution the board of
directors may permit the holders of any class of common stock to elect to
receive cash in lieu of stock.
(d) STOCK SPLITS, SUBDIVISIONS AND COMBINATIONS. If the
corporation shall in any manner split, subdivide or combine the outstanding
shares of any class of common stock, the outstanding shares of each other
class of common stock shall be proportionately split, subdivided or combined
in the same manner and on the same basis.
(e) LIQUIDATION. The holders of Common Shares, Series A Common
Shares and Series B Common Shares shall be entitled to receive the same
amount or distribution per share upon the liquidation, dissolution or winding
up of the affairs of the corporation. A consolidation, merger or
reorganization of the corporation with any other corporation or corporations,
or a sale of all or substantially all of the assets of the corporation, shall
not be considered a liquidation, dissolution or winding up of the corporation
within the meaning of these provisions.
-3-
(f) DISTRIBUTIONS OF SUBSIDIARIES. Notwithstanding the provisions
of subsections (c) and (e) of Article IV, if the corporation at any time
distributes to the holders of common stock of the corporation the stock of a
Subsidiary (as hereinafter defined) having two or more classes of common
stock outstanding that have relative rights, preferences and limitations
vis-a-vis each other that, in the judgment of the board of directors, are
similar in all material respects to the relative rights, preferences and
limitations of two or more classes of common stock of the corporation
vis-a-vis each other (except for any variations in rights, preferences and
limitations that are (1) necessary to enable a class of common stock of the
Subsidiary to be traded on an exchange or through the National Association of
Securities Dealers, Inc. Automated Quotation System (the "NASDAQ System");
(2) due to differences in the laws of the states of incorporation of the
corporation and the Subsidiary; or (3) equally applicable to two or more
classes of common stock of the Subsidiary), then each class of common stock
of the Subsidiary shall be distributed to the extent practicable to the
holders of the corresponding class of common stock of the corporation,
PROVIDED that the same number of shares on a per share basis shall be
distributed with respect to shares of each applicable class of common stock
of the corporation.
(g) PRE-EMPTIVE RIGHTS. No holder of stock of the corporation
shall have any pre-emptive right to subscribe for or acquire any unissued or
treasury stock or other securities of the corporation, whether such stock or
securities be hereby or hereafter authorized, except as may be specifically
granted pursuant to a contract with the corporation approved by the board of
directors and except that holders of Series A Common Shares shall have a
pre-emptive right to acquire unissued or treasury Series A Common Shares or
securities convertible into or exchangeable for, or carrying a right to
subscribe to or acquire, Series A Common Shares; PROVIDED, HOWEVER, that no
pre-emptive right shall exist to acquire any Series A Common Shares sold
otherwise than for cash. The pre-emptive right of each holder of Series A
Common Shares may be exercised in full, or in part to the extent determined
by each holder, and in no event shall the exercise of such right be
conditioned on subscribing for or acquiring any minimum amount or proportion
of stock or other securities.
(h) CONVERSION OF SERIES A COMMON SHARES. Each outstanding Series
A Common Share shall be convertible into one Common Share. Series A Common
Shares so converted shall not be reissued. Any such conversion shall be
effected by the presentation and surrender of the certificates representing
the Series A Common Shares to be converted, at the office of the corporation
or at such other place as may from time to time be designated by the
corporation, in such form and accompanied by all transfer taxes (or proof of
payment thereof), if any, as
-4-
shall be required for such transfer, and upon such surrender, the holder of
such shares shall be entitled to receive in exchange therefor certificates
for fully paid and nonassessable Common Shares of the corporation at the rate
aforesaid, and such holder shall be registered as the holder of such Common
Shares.
(i) MANDATORY REDEMPTION. Notwithstanding any other provision of
this Restated Certificate of Incorporation to the contrary, any outstanding
shares of stock of the corporation shall 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
Title 8 of the Delaware Code 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 corporation's stock
possessing prescribed qualifications. The terms and conditions of such
redemption shall be as follows:
(1) the redemption price of the shares to be redeemed pursuant
to this subsection (i) shall be equal to the lesser of (A)
the Fair Market Value (as hereinafter defined) of such
shares or (B) if such shares were purchased by a
Disqualified Holder (as hereinafter defined) within one year
of the Redemption Date (as hereinafter defined), such
Disqualified Holder's purchase price for such shares;
(2) the redemption price of such shares may be paid in cash,
Redemption Securities (as hereinafter defined) or any
combination thereof;
(3) 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;
(4) at least 30 days' written notice of the Redemption Date
shall be given to the record holders of the shares selected
to be redeemed (unless waived in writing by any such
-5-
holder), PROVIDED that the Redemption Date may be the date
on which written notice 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;
(5) from and after the Redemption Date, any and all rights of
whatever nature, which may be held by the owners of shares
selected for redemption (including without limitation any
rights to vote or participate in dividends declared on stock
of the same class or series as such shares), shall cease and
terminate and they shall thenceforth be entitled only to
receive the cash or Redemption Securities payable upon
redemption; and
(6) such other terms and conditions as the board of directors
shall determine.
(j) MINORITY PROTECTION OFFERS. (1) If, after the Effective Time
(as hereinafter defined), any person or group acquires beneficial ownership
of 10% or more of the then issued and outstanding Common Shares (other than
upon original issuance by the corporation, by operation of law, by will or
the laws of descent and distribution, by gift or by foreclosure of a bona
fide loan), and such person or group (a "Related Person") does not own an
equal or greater percentage of the Series B Common Shares acquired after the
record date for the first issuance of Series B Common Shares (the
"Distribution Date"), such person or group shall, within a 90-day period
beginning the day after becoming a Related Person, make a public tender offer
in compliance with all applicable laws and regulations to acquire Series B
Common Shares as provided in this subsection (j) of Article IV (a "Minority
Protection Offer").
(2) In each Minority Protection Offer, the Related Person shall
make a public tender offer to acquire that number of Series B Common Shares
determined by (A) multiplying the percentage of outstanding Common Shares
beneficially owned on the date such person or group became a Related Person and
acquired after the Effective Time by such Related Person by the total number of
Series B Common Shares outstanding on such date, and (B) subtracting therefrom
the total number of Series B Common Shares beneficially owned on such date and
acquired after the Distribution Date by such Related Person (including shares
acquired on such date at or prior to the time such person or group became a
Related Person). The Related Person shall acquire
-6-
all of such shares validly tendered; PROVIDED, HOWEVER, that if the number of
Series B Common Shares tendered to the Related Person exceeds the number of
shares required to be acquired pursuant to the formula set forth in this
clause (2), the number of Common Shares acquired from each tendering holder
shall be pro rata in proportion to the total number of Series B Common Shares
tendered by all tendering holders.
(3) The offer price for any Series B Common Shares required
to be purchased by the Related Person pursuant to this provision shall be the
greater of (A) the highest price per share paid by the Related Person for any
Common Share in the six-month period ending on the date such person or group
became a Related Person, or (B) the highest reported sales price of a Common
Share or Series B Common Share on the NASDAQ System (or such securities
exchange or other quotation system as is then the principal trading market
for such shares) on the date such person or group became a Related Person or,
in case no such sale takes place, the Closing Price (as hereinafter defined)
on the prior trading day. For purposes of clause (4) below, the applicable
date for the calculations required by the preceding sentence shall be the
date on which the Related Person becomes required to engage in a Minority
Protection Offer. In the event that the Related Person has acquired Common
Shares in the six-month period ending on the date such person or group
becomes a Related Person for consideration other than cash, the value of such
consideration per Common Share shall be as determined in good faith by the
board of directors.
(4) A Minority Protection Offer shall also be required to be
effected by any Related Person that acquires beneficial ownership of the next
higher integral multiple of 5% (e.g. 15%, 20%, 25%, etc.) of the outstanding
Common Shares after the Effective Time (other than upon issuance or sale by
the corporation, by operation of law, by will or the laws of descent and
distribution, by gift, or by foreclosure of a bona fide loan) if such Related
Person does not then own an equal or greater percentage of the Series B
Common Shares acquired after the Distribution Date. Such Related Person
shall be required to make a public tender offer to acquire that number of
Series B Common Shares prescribed by the formula set forth in clause (2)
above, and shall acquire all shares validly tendered or a pro rata portion
thereof, as specified in said clause (2), at a price determined pursuant to
clause (3) above.
(5) If any Related Person fails to make an offer required by
this subsection (j) of Article IV, or to purchase shares validly tendered and
not withdrawn (after proration, if any), such Related Person shall not be
entitled to vote any Common Shares beneficially owned by such Related Person and
acquired by such Related Person after the Effective Time unless and until such
requirements are complied with or unless and until
-7-
all Common Shares causing such offer requirement to be effective are no
longer beneficially owned by such Related Person.
(6) The Minority Protection Offer requirement shall not apply
to any increase in percentage ownership of Common Shares resulting solely
from a change in the total number of Common Shares outstanding, PROVIDED that
any acquisition after such change which results in any person or group owning
10% or more of the Common Shares, excluding, in the case of the numerator but
not of the denominator of the calculation of such percentage, Common Shares
held by such Related Person immediately after the Effective Time, shall be
subject to any Minority Protection Offer requirement that would be imposed
with respect to a Related Person pursuant to this subsection (j) of Article
IV.
(7) All calculations with respect to percentage ownership of
issued and outstanding Common Shares or Series B Common Shares shall be based
upon the numbers of issued and outstanding shares reported by the corporation
on the last filed of (A) the corporation's most recent annual report on Form
10-K, (B) its most recent Quarterly Report on Form 10-Q, or (C) if any, its
most recent Current Report on Form 8-K.
(8) For purposes of this subsection (j) of Article IV, the
term "person" means a natural person, company, government, or political
subdivision, agency or instrumentality of a government, or other entity,
"beneficial ownership" shall be determined pursuant to Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), or
any successor regulation and the formation or existence of a "group" shall be
determined pursuant to Rule 13d-5(b) under the 1934 Act or any successor
regulation.
(9) In the event of a merger or consolidation of the
corporation with or into another entity (whether or not the corporation is
the surviving entity), the holders of Series B Common Shares shall be
entitled to receive the same per share consideration as the per share
consideration, if any, received by any holders of the Common Shares in such
merger or consolidation.
(k) POWER TO SELL STOCK. The board of directors shall have the
power to issue and sell all or any part of any class of stock herein or
hereafter authorized to such person, firm, association or corporation, and
for such consideration as the board of directors shall from time to time, in
its discretion, determine, whether or not greater consideration could be
received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law.
(l) POWER TO REPURCHASE STOCK. The board of directors shall have
the power to purchase shares of any class of stock
-8-
herein or hereafter authorized from such person, firm, association or
corporation, and for such consideration as the board of directors shall from
time to time, in its discretion, determine, whether or not less consideration
could be paid upon the purchase of the same number of shares of another
class, and as otherwise permitted by law.
(m) PREFERRED STOCK. The board of directors is expressly
authorized to adopt, from time to time, a resolution or resolutions providing
for the issue of one or more series of Preferred Stock, with such voting
powers, full or limited, or no voting powers, and with such designations,
preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, in addition to and
not inconsistent with those specifically set forth in this Restated
Certificate of Incorporation and as shall be stated and expressed in the
resolution or resolutions adopted by the board of directors; PROVIDED,
HOWEVER, that no shares of any series of Preferred Stock shall be issued for
consideration of less than $100 per share, have more than one (1) vote per
share with respect to any matter, or have separate class-voting rights with
respect to the election of directors or any other matter. In no event shall
Preferred Stock of any series be split or divided in any manner, nor shall
any dividends or other distributions payable in stock of the corporation of
any class or series be paid or payable on Preferred Stock.
(n) EFFECTIVE TIME. Effective as of the filing of this Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware pursuant to Section 103 of Title 8 of the Delaware Code (the
"Effective Time"), the 100 shares of capital stock, par value $1.00 per
share, of the corporation, representing all the issued and outstanding
capital stock of the corporation ("Outstanding Common Stock") shall, without
any action on the part of the holder thereof, be converted into 1,500,000
Common Shares and 15,000,000 Series A Common Shares, all of which shall be
fully paid and nonassessable. Upon the surrender of certificates representing
shares of Outstanding Common Stock, the corporation or any agent of the
corporation appointed for such purpose shall issue in exchange therefor one
or more certificates representing the shares into which the shares of
Outstanding Common Stock have been converted in accordance with the foregoing.
ARTICLE V
Any and all right, title, interest and claim in or to any dividends
declared by the corporation, whether in cash, stock or otherwise, which are
unclaimed by the stockholder entitled thereto for a period of six years after
the close of business on
-9-
the payment date, shall be and be deemed to be extinguished and abandoned;
and such unclaimed dividends in the possession of the corporation, its
transfer agents or other agents or depositaries shall at such time become the
absolute property of the corporation, free and clear of any and all claims of
any persons whatsoever.
ARTICLE VI
DIRECTORS
(a) NUMBER; CLASSES; CHANGES. The number of directors of the
corporation shall be fixed by or pursuant to the bylaws of the corporation,
but shall not be less than three, and, commencing with the 1994 annual
meeting of stockholders, the directors shall be divided into three classes,
which shall be as nearly equal in number as possible; the term of office of
those of the first class to expire at the annual meeting next ensuing; of the
second class one year thereafter; of the third class two years thereafter;
and at each annual election held after such classification and election,
directors shall be chosen for a full three-year term to succeed those whose
terms expire. If the number of directors fixed by or pursuant to the bylaws
of the corporation is changed at any time, any newly created directorships or
any decrease in directorships shall be so apportioned among the classes by
the board of directors so as to make all classes as nearly equal in number as
possible; PROVIDED, HOWEVER, that no decrease in the number of directors
shall shorten the term of any incumbent director.
(b) VOTING IN ELECTIONS. With respect to the election of
directors, the holders of Common Shares, voting as a class, shall be entitled
to elect at each annual meeting that number of directors which (together with
all directors whose terms do not expire at the time of such election and who
were previously elected by such holders) constitutes 25% of the number of
directors of the corporation fixed by or pursuant to the bylaws of the
corporation (rounded up to the nearest whole number). After the holders of
Common Shares have voted with respect to the election of directors, the
holders of (A) Preferred Stock entitled to vote thereon, and (B) Series A
Common Shares, both voting together as one class, shall be entitled to elect
at each annual meeting that number of directors which (together with all
directors whose terms do not expire at the time of such election and who were
previously elected by such holders) constitutes 75% of the number of
directors fixed by or pursuant to the bylaws of the corporation (rounded down
to the nearest whole number); PROVIDED, HOWEVER, that in the event the number
of issued and outstanding Series A Common Shares at the time of an annual
meeting is less than 500,000, then the holders of Common Shares shall be
entitled to vote with the holders of Series A Common
-10-
Shares and Preferred Stock entitled to vote thereon for the directors such
holders are entitled to elect at such meeting, in which case the holders of
Common Shares, Series A Common Shares, and Preferred Stock entitled to vote
thereon, shall vote together without regard to class.
(c) VACANCIES. Vacancies and newly created directorships of the
Preferred Stock and Series A Common Shares shall be filled by the holders of
such classes. Vacancies and newly created directorships of the Common Shares
shall be filled by the holders of such class, if a vacancy or newly created
directorship is to be filled at an annual meeting of stockholders, or by a
majority of the directors then in office, if the vacancy or newly created
directorship is to be filled between annual meetings of stockholders.
Vacancies and newly created directorships with respect to directors elected
by the holders of Common Shares, Series A Common Shares, and Preferred Stock
entitled to vote thereon, voting together without regard to class, shall be
filled by the holders of such classes, if a vacancy or newly created
directorship is to be filled at an annual meeting of stockholders, or by a
majority of the directors then in office, if the vacancy or newly created
directorship is to be filled between annual meetings of stockholders. A
director chosen by a majority of the directors then in office to fill a
vacancy or a newly created directorship shall cease to hold office at the
next annual meeting of stockholders held thereafter, whether the term of
office of the class for which the director was chosen expires at that meeting
or not. In all other cases, directors chosen to fill vacancies and newly
created directorships shall hold office until the next election of the class
for which such directors shall have been chosen, and until their successors
shall be elected and qualified.
(d) BALLOTS. Election of directors need not be by written ballot
unless the bylaws of the corporation so provide.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter, amend
or repeal the bylaws of the corporation.
ARTICLE VIII
No opportunity, transaction, agreement or other arrangement to which
TDS, or any other person in which TDS has or acquires a financial interest, is
or shall become a party, shall be the property or a corporate opportunity of the
corporation or its Subsidiaries, unless (a) not less than 500,000 Series A
-11-
Common Shares are outstanding, and (b) such opportunity, transaction,
agreement or other arrangement relates solely to the construction of, the
ownership of interests in and/or the management of radio paging systems,
other than such a system that is ancillary to and integrated with another
communications system.
ARTICLE IX
A director of the corporation shall not in the absence of fraud be
disqualified by his office from dealing or contracting with the corporation
either as a vendor, purchaser or otherwise, nor in the absence of fraud shall
a director of the corporation be liable to account to the corporation for any
profit realized by him from or through any transaction or contract of the
corporation by reason of the fact that he, or any firm of which he is a
member, or any corporation of which he is an officer, director or
stockholder, was interested in such transaction or contract if such
transaction or contract has been authorized, approved or ratified in the
manner provided in the General Corporation Law of Delaware for authorization,
approval or ratification of transactions or contracts between the corporation
and one or more of its directors or officers, or between the corporation and
any other corporation, partnership, association or other organization in
which one or more of its directors or officers are directors or officers, or
have a financial interest.
ARTICLE X
For purposes of this Restated Certificate of Incorporation:
"DISQUALIFIED HOLDER" shall mean any holder of shares of stock of the
corporation whose holding of such stock, either individually or when taken
together with the holding of shares of 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 to conduct any portion of the business of the corporation
or any of its Subsidiaries.
"FAIR MARKET VALUE" of a share of the corporation's stock of any class
or series shall mean the average Closing Price for such a share for each of
the 20 most recent days on which shares of stock of such class or series
shall have been traded preceding the day on which notice of redemption
shall be given pursuant to subsection (i)(4) of Article IV; PROVIDED,
HOWEVER, that if shares of stock of such class or
-12-
series are not traded on any securities exchange or on the NASDAQ
System, "Fair Market Value" shall be determined by the board of
directors in good faith. "CLOSING PRICE" on any day means the last
reported sales price or, in case no such sale takes place, the average
of the reported closing bid and asked prices on the principal United
States securities exchange registered under the 1934 Act on which such
stock is listed, or, if such stock is not listed on any such exchange,
the highest closing sales price or bid quotation for such stock on the
NASDAQ System or any system then in use, or if no such prices or
quotations are available, the fair market value on the day in question
as determined by the board of directors in good faith.
A "PERSON" shall mean an individual, a corporation, a partnership, a
joint venture, a trust or unincorporated organization, a joint stock
company or similar organization, a government or any political subdivision
thereof, or any other legal entity.
"REDEMPTION DATE" shall mean the date fixed by the board of directors
for the redemption of shares of stock of the corporation pursuant to
subsection (i) of Article IV.
"REDEMPTION SECURITIES" shall mean any debt or equity securities
(other than Series A Common Shares or securities convertible into or
exchangeable for, or carrying a right to subscribe to or acquire, Series A
Common Shares) of the corporation, any of its Subsidiaries 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, in the opinion of any
nationally recognized investment banking firm selected by the board of
directors (which may be a firm which provides other investment banking,
brokerage or other services to the corporation), has a value, at the time
notice of redemption is given pursuant to subsection (i)(4) of Article IV,
at least equal to the price required to be paid pursuant to subsection
(i)(1) of Article IV (assuming, in the case of Redemption Securities to be
publicly traded, such Redemption Securities were fully distributed and
subject only to normal trading activity).
"SUBSIDIARY", with respect to a specified person, shall mean any
person whose accounts are included in the consolidated financial statements
of the specified person and its Subsidiaries prepared in accordance with
generally accepted accounting principles at the time.
-13-
"TDS" means Telephone and Data Systems, Inc., an Iowa corporation, and
any successor by merger, consolidation or otherwise to such corporation.
ARTICLE XI
(a) LIMITATION ON LIABILITY. A director or officer 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
or officer, except for liability (1) for any breach of the director's or
officer's duty of loyalty to the corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) under Section 174 of Title 8 of the
Delaware Code, or (4) for any transaction from which the director or officer
is found by a court of law to have derived an improper personal benefit.
(b) 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 he or she is the legal representative, is or was a director or
officer of the corporation, or 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 Delaware, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) 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
director, officer, employee or agent and shall inure to the benefit of his or
her heirs, executors and administrators; PROVIDED, HOWEVER, that, except as
provided in subsection (c) of Article XI, 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 Article XI shall be a contract
-14-
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
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 Article XI or otherwise. The corporation may, by action of its
board of directors, provide indemnification to other employees or agents of
the corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
(c) CLAIMS FOR INDEMNIFICATION. If a claim under subsection (b)
of Article XI is not paid in full by the corporation within 30 days 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 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 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
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.
(d) NON-EXCLUSIVITY. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article XI shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of this
-15-
Restated Certificate of Incorporation, bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
(e) 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 expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against the
expense, liability or loss under the General Corporation Law of Delaware.
ARTICLE XII
The corporation reserves the right to amend, alter, change or
repeal any provision contained in this 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.
* * * * *
This Restated Certificate of Incorporation was duly adopted by
unanimous written consent of the stockholders in accordance with the
applicable provisions of Sections 228, 242 and 245 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, said AMERICAN PAGING, INC. has caused this
Certificate to be signed by John R. Schaaf, its President and attested by
Michael G. Hron, its Secretary, this 4th day of February, 1994.
AMERICAN PAGING, INC.
By: /s/ John R. Schaaf
----------------------------
John R. Schaaf
President
ATTEST:
By: /s/ Michael G. Hron
-------------------------
Michael G. Hron
Secretary
-16-