RESTATED
CERTIFICATE OF INCORPORATION
OF
PALMER WIRELESS HOLDINGS, INC.
Palmer Wireless Holdings, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), the original
Certificate of Incorporation of which was filed with the Secretary of State of
the State of Delaware on January 28, 1994, HEREBY CERTIFIES that this Restated
Certificate of Incorporation restating, integrating and amending its Certificate
of Incorporation was duly adopted by its Board of Directors and stockholders in
accordance with Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware (the "Delaware General Corporation Law").
1. NAME
The name of this corporation is PALMER WIRELESS HOLDINGS, INC. (the
"Corporation").
2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at 1013
Centre Road, Wilmington, Delaware 19805 in the County of New Castle. The
registered agent of the Corporation at such address shall be Corporation Service
Company.
3. PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law. The Corporation shall have all power necessary or helpful to
engage in such acts and activities.
4. CAPITAL STOCK
4.1. Authorized Shares
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is one thousand (1,000). All one
thousand (1,000) shares shall be Common Stock having a par value of $.01 per
share ("Common Stock").
4.2. Common Stock
4.2.1. Relative Rights
Each share of Common Stock shall have the same relative rights as
and be identical in all respects to all the other shares of Common Stock.
4.2.2. Dividends
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Stock as to the payment of dividends, the full amount of dividends
and of sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then dividends may be
paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and as declared by the Board of
Directors of the Corporation.
4.2.3. Dissolution, Liquidation, Winding Up
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock
shall become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or set aside for
payment, to the holders of any class of stock having preference over the Common
Stock in the event of dissolution, liquidation or winding up the full
preferential amounts (if any) to which they are entitled.
4.2.4 Voting Rights
Each holder of shares of Common Stock shall be entitled to attend
all special and annual meetings of the stockholders of the Corporation and,
share for share, to cast one vote for each outstanding share of Common Stock so
held upon any matter or thing (including, without limitation, the election of
one or more directors) properly considered and acted upon by the stockholders.
5. BOARD OF DIRECTORS
5.1. Classification
Except as otherwise provided in this Certificate of Incorporation,
the number of directors of the Corporation shall be as fixed from time to time
by or pursuant to the Bylaws of the Corporation. The directors shall be
classified, with respect to the time for which they severally hold office, into
three classes, Class I,
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Class II and Class III, which shall be as nearly equal in number as possible,
and shall be adjusted from time to time in the manner specified in the Bylaws of
the Corporation to maintain such proportionality. Each initial director in Class
I shall hold office for a term expiring at the 1997 annual meeting of
stockholders, each initial director in Class II shall hold office for a term
expiring at the 1996 annual meeting of stockholders, and each initial director
in Class III shall hold office for a term expiring at the 1995 annual meeting of
stockholders. Notwithstanding the foregoing provisions of this Section 5.1, each
director shall serve until such director's successor is duly elected and
qualified or until such director's earlier death, resignation or removal. At
each annual meeting of stockholders, the successors to the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election and until their successors have been duly elected and
qualified or until any such director's earlier death, resignation or removal.
5.2. Election
Unless and except to the extent that the bylaws of the Corporation
shall otherwise require, the election of the directors of the Corporation need
not be by written ballot.
5.3. Change of Authorized Number
In the event of any increase or decrease in the authorized number of
directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
5.4. Limitation of Liability
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of loyalty to
the Corporation or its stockholders; (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (c) for
the types of liability set forth in Section 174 of the Delaware General
Corporation Law; or (d) for any transaction from which the director received any
improper personal benefit. Any repeal or modification of this Section 5.4 by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
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6. INDEMNIFICATION
To the extent permitted by law, the Corporation shall fully
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
To the extent permitted by law, the Corporation may fully indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) by reason of the fact that such
person is or was an employee or agent of the Corporation, or is or was serving
at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
The Corporation shall advance expenses (including attorneys' fees)
incurred by a director or officer in advance of the final disposition of such
action, suit or proceeding upon the receipt of an undertaking by or on behalf of
the director or officer to repay such amount if it shall ultimately be
determined that such director or officer is not entitled to indemnification. The
Corporation may advance expenses (including attorneys' fees) incurred by an
employee or agent in advance of the final disposition of such action, suit or
proceeding upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
7. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly authorized
and empowered to adopt, amend and repeal the Bylaws of the Corporation, subject
to the right of the stockholders entitled to vote with respect thereto to amend
or repeal Bylaws adopted by the Board of Directors as provided for in this
Certificate of Incorporation or in the Bylaws of the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by its President and attested by its Assistant
Secretary this 19 day of April, 1995.
PALMER WIRELESS, INC
By: /s/ William J. Ryan
-----------------------------
William J. Ryan
President and Chief Eecutive
Officer
Attest:
By: /s/ K. Patrick Meehan
--------------------------------
K. Patrick Meehan
Vice-President - General Counsel
and Assistant Secretary
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:00 PM 01/28/1994
944009129 - 2373985
CERTIFICATE OF INCORPORATION
OF
PALMER WIRELESS HOLDINGS, INC.
1. NAME
The name of this corporation is PALMER WIRELESS HOLDINGS, INC. (the
"Corporation").
2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at 1013
Centre Road, Wilmington, Delaware 19805 in the County of New Castle. The
registered agent of the Corporation at such address shall be Corporation Service
Company.
3. PURPOSE AND POWERS
3.1. Purposes
The sole purpose for which the Corporation is organized is to engage
in "cellular telephone and mobile communications services businesses," including
the conduct of all activities necessary or incidental thereto (collectively
"Permitted Business"). The Corporation may not own a subsidiary which is engaged
in a business other than a Permitted Business.
For purposes of this Certificate of Incorporation, "cellular
telephone and mobile communications services businesses" are defined as
communications services where either the terminal from which the communications
originated or on which the communications are received, or both, are mobile
radio communications devices (including, in each case, mobile communications
devices that are being used in a fixed mode). These include, but are not limited
to, cellular telephone service, cellular telephone equipment sales and related
services, specialized mobile radio service, specialized mobile radio and
equipment sales and related services, paging and mobile voice/data service,
paging and mobile voice/data equipment sales and related services, personal
communications services, personal communications services equipment sales and
related services, local area personal communications networks; and all
activities reasonably necessary or incidental thereto.
At any time, the holders of a majority of the outstanding voting
stock of the Company may, by written notification to the Corporation, authorize
the
Corporation to engage in any lawful business, whether or not a Permitted
Business, on such terms and subject to such conditions and limitations as shall
be set forth in such notification.
The limitations on the businesses in which the Corporation may
engage shall lapse and, thereafter the Corporation shall be entitled to engage
in any lawful business for which corporations may be organized under the
Delaware General Corporation Law, if and when the aggregate voting power of all
outstanding shares of capital stock of the Corporation, and each other
corporation holding 20% or more of the total voting power of all outstanding
shares of capital stock of the Corporation, held directly or indirectly by
Palmer Communications Incorporated (or any successor thereto) shall be less
than 20% of the total voting power of all outstanding shares of capital stock
of the Corporation irrespective of class.
3.2. Certain Opportunities
Notwithstanding any provision of the law of any jurisdiction in
which the Corporation is incorporated, qualified to do business, or otherwise
subject to process, neither the Corporation nor any stockholder of the
Corporation shall have any claim or cause of action against Palmer
Communications Incorporated ("PCI") or any successor thereto, direct or indirect
subsidiary thereof, or any officer, director, controlling person, or affiliate
of any of the foregoing (each an "Interested Person"), for any breach or alleged
breach of a fiduciary duty or loyalty or fair dealing arising out of a claim
that an opportunity, transaction, agreement, or other arrangement (each an
"Opportunity") to which PCI (or a successor), or any person (other than the
Corporation) in which PCI has or acquires a direct or indirect financial
interest, is or shall become a party, constitutes the property or a corporate
opportunity of the Corporation or any direct or indirect subsidiary of the
Corporation unless (i) such Opportunity relates primarily to the business in
which the Corporation is authorized to engage by Section 3.1, and (ii) the Board
of Directors of the Corporation does not by Affirmative Action (as defined
below) determine not to claim on behalf of the Corporation rights under or to
such Opportunity. For purposes of this Section 3.2, "primarily" means, with
respect to any entity, that 80% or more of its revenues or assets are derived
from or dedicated to businesses in which the Corporation is permitted to engage.
If the number of directors of the Corporation who are not affliates of PCI (or a
successor) or of an Interested Person ("Disinterested Directors") constitutes a
majority of the total number of directors of the Corporation, then authorized
Affirmative Action shall mean vote or consent by a majority of the Disinterested
Directors. If the number of Disinterested Directors constitutes less than a
majority of the total number of directors of the Corporation, then Affirmative
Action shall mean the vote or consent of all the Disinterested Directors. In
either case, such Affirmative Action must be taken not later than sixty (60)
days after the Opportunity is presented to the Board of Directors of the
Corporation for consideration.
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If an Opportunity would be subject to the provisions of the prior
paragraph except that such Opportunity does not relate primarily to the
businesses in which the Corporation is authorized to engage by Section 3.1, and
if PCI (or a successor), or a person in which PCI has or acquires a direct or
indirect financial interest, offers to the Corporation the right to participate
in such Opportunity to the extent permitted by this Certificate of
Incorporation, all determinations as to whether the Corporation will so
participate and the terms of such participation shall be made only by the
Affirmative Action of the Board of Directors of the Corporation.
Nothing in this Section 3.2 of this Section shall create or be
deemed to create any claim or cause of action for breach of a fiduciary duty by
any director of the Corporation where none would exist but for the provisions
thereof.
4. CAPITAL STOCK
4.1. Authorized Shares
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is one thousand (1,000). All one
thousand (1,000) shares shall be Common Stock having a par value of $.0l per
share ("Common Stock").
4.2. Common Stock
4.2.1. Relative Rights
Each share of Common Stock shall have the same relative rights as
and be identical in all respects to all the other shares of Common Stock.
4.2.2.Dividends
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Stock as to the payment of dividends, the full amount of dividends
and of sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then dividends may be
paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and as declared by the Board of
Directors of the Corporation.
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4.2.3. Dissolution, Liquidation, Winding Up
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock
shall become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or set aside for
payment, to the holders of any class of stock having preference over the Common
Stock in the event of dissolution, liquidation or winding up the full
preferential amounts (if any) to which they are entitled.
4.2.4.Voting Rights
Each holder of shares of Common Stock shall be entitled to attend
all special and annual meetings of the stockholders of the Corporation and,
share for share, to cast one vote for each outstanding share of Common Stock so
held upon any matter or thing (including, without limitation, the election of
one or more directors) properly considered and acted upon by the stockholders.
5. INCORPORATOR; INITIAL DIRECTORS
5.1. Incorporator
The name and mailing address of the incorporator (the
"Incorporator") are Hogan & Hartson, 555 Thirteenth Street, N.W., Washington,
D.C. 20004-1109. The powers of the Incorporator shall terminate upon the filing
of this Certificate of Incorporation.
5.2. Initial Directors
The following persons, having the following mailing addresses, shall
serve as the directors of the Corporation until their successors are elected and
qualified:
NAME MAILING ADDRESS
CLASS I
Vickie A. Palmer 3535 East Kimberly Road
Davenport, Iowa 52807
Thomas P. McCloskey 730 East Durant, Suite 202
Aspen, Colorado 81611
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NAME MAILING ADDRESS
CLASS II
Kermit S. Sutton 400 5th Avenue South
Suite 301
Naples, Florida 33940
William J. Ryan 12800 University Drive
Suite 500
Fort Myers, Florida 33907
CLASS III
Robert G. Engelhardt 12800 University Drive
Suite 500
Fort Myers, Florida 33907
6. BOARD OF DIRECTORS
6.1. Classification
Except as otherwise provided in this Certificate of Incorporation,
the number of directors of the Corporation shall be as fixed from time to time
by or pursuant to the Bylaws of the Corporation. The directors shall be
classified, with respect to the time for which they severally hold office, into
three classes, Class I, Class II and Class III, which shall be as nearly equal
in number as possible, and shall be adjusted from tune to time in the manner
specified in the Bylaws of the Corporation to maintain such proportionality.
Each initial director in Class I shall hold office for a term expiring at the
1997 annual meeting of stockholders, each initial director in Class II shall
hold office for a term expiring at the 1996 annual meeting of stockholders, and
each initial director in Class III shall hold office for a term expiring at the
1995 annual meeting of stockholders. Notwithstanding the foregoing provisions of
this Section 6.1, each director shall serve until such director's successor is
duly elected and qualified or until such director's earlier death, resignation
or removal. At each annual meeting of stockholders, the successors to the class
of directors whose term expires at that meeting shall be elected to hold office
for a term expiring at the annual meeting of stockholders held in the third year
following the year of their election and until their successors have been duly
elected and qualified or until any such director's earlier death, resignation or
removal.
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6.2.Election
Unless and except to the extent that the bylaws of the Corporation
shall otherwise require, the election of the directors of the Corporation need
not be by written ballot.
6.3. Change of Authorized Number
In the event of any increase or decrease in the authorized number of
directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
6.4. Limitation of Liability
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of loyalty to
the Corporation or its stockholders; (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (c) for
the types of liability set forth in Section 174 of the Delaware General
Corporation Law; or (d) for any transaction from which the director received any
improper personal benefit. Any repeal or modification of this Section 6.4 by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
7. INDEMNIFICATION
To the extent permitted by law, the Corporation shall fully
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
To the extent permitted by law, the Corporation may fully indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) by reason of the fact that such
person is or was an
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employee or agent of the Corporation, or is or was serving at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding.
The Corporation shall advance expenses (including attorneys' fees)
incurred by a director or officer in advance of the final disposition of such
action, suit or proceeding upon the receipt of an undertaking by or on behalf of
the director or officer to repay such amount if it shall ultimately be
determined that such director or officer is not entitled to indemnification. The
Corporation may advance expenses (including attorneys' fees) incurred by an
employee or agent in advance of the final disposition of such action, suit or
proceeding upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
8. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly authorized
and empowered to adopt, amend and repeal the Bylaws of the Corporation, subject
to the right of the stockholders entitled to vote with respect thereto to amend
or repeal Bylaws adopted by the Board of Directors as provided for in this
Certificate of Incorporation or in the Bylaws of the Corporation.
IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove
named, for the purpose of forming a corporation pursuant to the Delaware General
Corporation Law, hereby certifies that the facts hereinabove stated are truly
set forth, and accordingly executes this Certificate of Incorporation this 27th
day of January, 1994.
HOGAN & HARTSON
Incorporator
By: /s/ David Martin
-----------------------------
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