-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IZTx7WQNpXhnFiuoUj8q/8O6Y3Vq+tM7Cu7GEryunM2t6Hi5hEtapOBg3Y9a+3u1 WcoHzEScsD3qLBHkxlOm1g== 0000950135-02-002831.txt : 20020524 0000950135-02-002831.hdr.sgml : 20020524 20020524180929 ACCESSION NUMBER: 0000950135-02-002831 CONFORMED SUBMISSION TYPE: T-3/A PUBLIC DOCUMENT COUNT: 40 FILED AS OF DATE: 20020524 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARCH WIRELESS HOLDINGS INC CENTRAL INDEX KEY: 0001140826 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 223317420 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581 FILM NUMBER: 02662844 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE, SUITE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK OF SAN FRANCISCO INC CENTRAL INDEX KEY: 0001170083 IRS NUMBER: 042756281 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-09 FILM NUMBER: 02662845 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK INTERNATIONAL INC CENTRAL INDEX KEY: 0001170084 IRS NUMBER: 752590361 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-10 FILM NUMBER: 02662846 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK FINANCE CORP CENTRAL INDEX KEY: 0001170085 IRS NUMBER: 752594229 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-11 FILM NUMBER: 02662847 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK OF MICHIGAN INC CENTRAL INDEX KEY: 0001170086 IRS NUMBER: 751905024 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-12 FILM NUMBER: 02662848 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK OF NORTHERN CALIFORNIA INC CENTRAL INDEX KEY: 0001170087 IRS NUMBER: 752590332 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-13 FILM NUMBER: 02662849 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FORMER COMPANY: FORMER CONFORMED NAME: PAGING NETWORK OF NORTH CALIFORNIA INC DATE OF NAME CHANGE: 20020327 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK OF COLORADO INC CENTRAL INDEX KEY: 0001170088 IRS NUMBER: 841208036 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-14 FILM NUMBER: 02662850 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK OF AMERICA INC CENTRAL INDEX KEY: 0001170089 IRS NUMBER: 752590299 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-15 FILM NUMBER: 02662851 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGENET INC CENTRAL INDEX KEY: 0001170080 IRS NUMBER: 621560954 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-06 FILM NUMBER: 02662852 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK INC CENTRAL INDEX KEY: 0000878324 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 042740616 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-02 FILM NUMBER: 02662853 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: SUITE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 9728018000 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: SUITE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOBILEMEDIA LICENSE CO LLC CENTRAL INDEX KEY: 0001170094 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-20 FILM NUMBER: 02662854 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOBILE COMMUNICATIONS CORP OF AMERICA CENTRAL INDEX KEY: 0000067204 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 223619446 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-01 FILM NUMBER: 02662856 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: SUITE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 508-870-6700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FORMER COMPANY: FORMER CONFORMED NAME: MOBILE COMMUNICATIONS CORP OF AMERICA /DE/ DATE OF NAME CHANGE: 19920807 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOBILEMEDIA COMMUNICATIONS INC CENTRAL INDEX KEY: 0000912192 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 043467049 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-03 FILM NUMBER: 02662858 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BENBOW INVESTMENTS INC CENTRAL INDEX KEY: 0001170093 IRS NUMBER: 043467047 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-19 FILM NUMBER: 02662859 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARCH CONNECTICUT VALLEY INC CENTRAL INDEX KEY: 0001170090 IRS NUMBER: 042944388 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-16 FILM NUMBER: 02662860 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARCH COMMUNICATIONS ENTERPRISES LLC CENTRAL INDEX KEY: 0001170091 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-17 FILM NUMBER: 02662861 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARCHTEL INC CENTRAL INDEX KEY: 0001170092 IRS NUMBER: 043466484 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-18 FILM NUMBER: 02662862 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGENET SMR SUB INC CENTRAL INDEX KEY: 0001170081 IRS NUMBER: 043548972 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-07 FILM NUMBER: 02662863 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK CANADIAN HOLDINGS INC CENTRAL INDEX KEY: 0001170082 IRS NUMBER: 752590360 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-08 FILM NUMBER: 02662864 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARCH WIRELESS COMMUNICATIONS INC CENTRAL INDEX KEY: 0000916122 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 311236804 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-05 FILM NUMBER: 02662865 BUSINESS ADDRESS: STREET 1: 1800 WEST PARK DRIVE STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 508-870-6700 MAIL ADDRESS: STREET 1: 1800 W PARK DR STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FORMER COMPANY: FORMER CONFORMED NAME: ARCH COMMUNICATIONS INC DATE OF NAME CHANGE: 19980723 FORMER COMPANY: FORMER CONFORMED NAME: USA MOBILE COMMUNICATIONS INC II DATE OF NAME CHANGE: 19931213 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARCH WIRELESS INC CENTRAL INDEX KEY: 0000915390 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 311358569 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28581-04 FILM NUMBER: 02662866 BUSINESS ADDRESS: STREET 1: 1800 W PARK DR STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5088706700 MAIL ADDRESS: STREET 1: 1800 W PARK DR STREET 2: STE 250 CITY: WESTBOROUGH STATE: MA ZIP: 01581 FORMER COMPANY: FORMER CONFORMED NAME: ARCH COMMUNICATIONS GROUP INC /DE/ DATE OF NAME CHANGE: 19950914 FORMER COMPANY: FORMER CONFORMED NAME: USA MOBILE COMMUNICATIONS HOLDINGS INC /DE/ DATE OF NAME CHANGE: 19950519 T-3/A 1 b42413a1t-3a.txt ARCH WIRLESS HOLDINGS, INC UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 AMENDMENT NO. 1 TO FORM T-3 FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE TRUST INDENTURE ACT OF 1939 ARCH WIRELESS HOLDINGS, INC. ARCH WIRELESS, INC. ARCH WIRELESS COMMUNICATIONS, INC. PAGING NETWORK CANADIAN HOLDINGS, INC. PAGENET SMR SUB, INC. ARCHTEL, INC. ARCH COMMUNICATIONS ENTERPRISES LLC ARCH CONNECTICUT VALLEY, INC. BENBOW INVESTMENTS, INC. MOBILEMEDIA COMMUNICATIONS, INC. MOBILE COMMUNICATIONS CORPORATION OF AMERICA MOBILEMEDIA LICENSE CO., L.L.C. PAGING NETWORK, INC. PAGENET, INC. PAGING NETWORK OF AMERICA, INC. PAGING NETWORK OF COLORADO, INC. PAGING NETWORK OF NORTHERN CALIFORNIA, INC. PAGING NETWORK OF MICHIGAN, INC. PAGING NETWORK FINANCE CORP. PAGING NETWORK INTERNATIONAL, INC. PAGING NETWORK OF SAN FRANCISCO, INC. (Name of Applicant) 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581 (Address of principal executive offices) SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED:
TITLE OF CLASS AMOUNT 10% Senior Subordinated Secured Aggregate principal amount of Notes Due 2007 $200,500,000
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: On, or as soon as practicable after, the effective date of the debtors' first amended joint plan of reorganization. Patricia A. Gray, Esq. c/o Arch Wireless, Inc. Senior Vice President, General Counsel and Secretary 1800 West Park Drive Suite 250 Westborough, Massachusetts 01581 (508) 870-6700 With copies to: Mark N. Polebaum, Esq. Ted S. Waksman, Esq. David A. Westenberg, Esq. Weil, Gotshal & Manges LLP Hale and Dorr LLP 767 Fifth Avenue 60 State Street New York, New York 10153 Boston, Massachusetts 02109 (212) 310-8007 (617) 526-6000 EXPLANATORY NOTE This Amendment No. 1 to Form T-3 ("Amendment No. 1") is being filed to amend and restate: (1) "Item 4. Directors and Executive Officers" as set forth in the Application for Qualification of Indentures under the Trust Indenture Act of 1939, as amended, on Form T-3 (File No. 022-28581) filed by each of Arch Wireless Holdings, Inc. (the "Corporation") Arch Wireless, Inc. (the "Parent"), Arch Wireless Communications, Inc. ("AWCI"), Paging Network Canadian Holdings, Inc. ("PNCH"), PageNet SMR Sub, Inc. ("PNSMR"), ArchTel, Inc., Arch Connecticut Valley, Inc., Benbow Investments, Inc., MobileMedia Communications, Inc., Mobile Communications Corporation of America, Paging Network, Inc., PageNet, Inc., Paging Network of America, Inc., Paging Network of Colorado, Inc., Paging Network of Northern California, Inc., Paging Network of Michigan, Inc., Paging Network Finance Corp., Paging Network International, Inc., Paging Network of San Francisco, Inc., Arch Communication Enterprises, LLC and MobileMedia License Co., L.L.C., with the Securities and Exchange Commission on March 20, 2002 (the "Form T-3"). Except for the Corporation, each of the foregoing entities shall be referred to herein collectively as the "Guarantors."; and (2) "Item 8. Analysis of Indenture Provisions" as set forth in the T-3. Additionally, the exhibits to this Amendment No. 1 are being amended and restated in full (except where specifically incorporated into this Amendment No. 1 from another filing made prior to the date hereof). 1 ITEM 4. DIRECTORS AND EXECUTIVE OFFICERS. (a) Current Directors and Executive Officers. The following table sets forth the names of, and all offices held by, all current executive officers and directors (as defined in Sections 303(5) and 303(6), respectively, of the Trust Indenture Act of 1939 (the "TIA")) of the Corporation and each of the Guarantors. The mailing address for each executive officer and director listed below is c/o Arch Wireless, Inc., 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581. (1) The executive officers and directors of the Corporation, the Parent and AWCI are as follows:
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Director, Chairman of the Board and Chief Executive Officer R. Schorr Berman Director Gregg R. Daugherty Director John H. Gutfreund Director John Kornriech Director H. Sean Mathis Director Allan L. Rayfield Director John B. Saynor Director, Executive Vice President and Assistant Secretary John A. Shane Director Lyndon R. Daniels President and Chief Operating Officer J. Roy Pottle Executive Vice President and Chief Financial Officer Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Patricia A. Gray Senior Vice President, General Counsel and Secretary Christopher J. Madden Senior Vice President, Human Resources Peter J. Barnett Senior Vice President, Operations and Chief Information Officer Gerald J. Cimmino Vice President and Treasurer George W. Hale Vice President and Controller Joseph Mullin Vice President, Radio Frequency Engineering and Licensing
2 D. Michael Doyle Vice President, Telecommunications Michael Brantley Vice President, Operations Nationwide Robert W. Lougee, Jr. Vice President, Investor Relations Michael J. Lurie Vice President, National Retail Amber Niven Vice President, Information Technology Felicia Donahue Vice President, Operations Tracey Zimmerman Vice President, Human Resources Operations Support Frank Brilliant Vice President, Advanced Product Marketing Group James Rodts Vice President, Research and Development Jean Angelini Assistant Treasurer
(2) The executive officers of each of Arch Communications Enterprises LLC and MobileMedia License Co., L.L.C. are as follows (such companies have no directors):
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Chairman of the Board and Chief Executive Officer Lyndon R. Daniels President and Chief Operating Officer J. Roy Pottle Executive Vice President and Chief Financial Officer John B. Saynor Executive Vice President Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Patricia A. Gray Senior Vice President, General Counsel and Secretary Gerald J. Cimmino Vice President and Treasurer Christopher J. Madden Senior Vice President, Human Resources George Hale Vice President, Planning and Control Robert W. Lougee, Jr. Vice President, Investor Relations Peter J. Barnett Senior Vice President, Operations and Chief Information Officer Jean Angelini Assistant Treasurer
3 (3) The executive officers and sole director of each of Arch Connecticut Valley, Inc., ArchTel, Inc., Benbow Investments, Inc. and MobileMedia Communications, Inc. are as follows:
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Chairman of the Board, Chief Executive Officer and Sole Director Lyndon R. Daniels President and Chief Operating Officer J. Roy Pottle Executive Vice President and Chief Financial Officer John B. Saynor Executive Vice President Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Peter J. Barnett Senior Vice President, Information Management Services Christopher J. Madden Senior Vice President, Human Resources Patricia A. Gray Senior Vice President, General Counsel and Clerk Gerald J. Cimmino Vice President and Treasurer George W. Hale Vice President and Controller Robert W. Lougee, Jr. Vice President, Investor Relations Jean Angelini Assistant Treasurer
(4) The executive officers and sole director of each of Paging Network of Colorado, Inc., Paging Network of Northern California, Inc., Paging Network of Michigan, Inc., Paging Network Finance Corp., Paging Network International, Inc. and Paging Network of San Francisco, Inc. are as follows: 4
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Chairman of the Board, Chief Executive Officer and Sole Director Lyndon R. Daniels President and Chief Operating Officer J. Roy Pottle Executive Vice President and Chief Financial Officer Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Patricia A. Gray Senior Vice President, General Counsel and Secretary Gerald J. Cimmino Vice President and Treasurer George W. Hale Vice President and Controller Garry Fitzgerald Regional Senior Vice President, Canada
(5) The executive officers and sole director of each of PNSMR and PNCH are as follows:
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Chairman of the Board, Chief Executive Officer and Sole Director Lyndon R. Daniels President and Chief Operating Officer J. Roy Pottle Executive Vice President and Chief Financial Officer John B. Saynor Executive Vice President Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Patricia A. Gray Senior Vice President, General Counsel and Secretary Gerald J. Cimmino Vice President and Treasurer George W. Hale Vice President and Controller Garry Fitzgerald Regional Senior Vice President, Canada
(6) The executive officers and sole director of each of Paging Network, Inc. and Paging Network of America, Inc. are as follows:
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Chairman of the Board, Chief Executive Officer and Sole Director Lyndon R. Daniels President and Chief Operating Officer
5 J. Roy Pottle Executive Vice President and Chief Financial Officer Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Patricia A. Gray Senior Vice President, General Counsel and Secretary Gerald J. Cimmino Vice President and Treasurer George W. Hale Vice President and Controller Garry Fitzgerald Regional Senior Vice President, Canada Joseph Mullin Vice President, Engineering and Licensing
(7) The executive officers and sole director of PageNet, Inc. are as follows:
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Chairman of the Board, Chief Executive Officer and Sole Director Lyndon R. Daniels President and Chief Operating Officer J. Roy Pottle Executive Vice President and Chief Financial Officer Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Peter J. Barnett Senior Vice President, Operations and Chief Information Officer Gerald J. Cimmino Vice President and Treasurer Patricia A. Gray Senior Vice President, General Counsel and Secretary George W. Hale Vice President and Controller Garry Fitzgerald Regional Senior Vice President, Canada Joseph Mullin Vice President, Radio Frequency Engineering and Licensing
6 (8) The executive officers and sole director of Mobile Communications Corporation of America are as follows:
NAME OFFICE(S) ---- --------- C. Edward Baker, Jr. Chairman of the Board, Chief Executive Officer and Sole Director Lyndon R. Daniels President and Chief Operating Officer J. Roy Pottle Executive Vice President and Chief Financial Officer John B. Saynor Executive Vice President Paul H. Kuzia Executive Vice President, Technology and Regulatory Affairs Christopher J. Madden Senior Vice President, Human Resources Peter J. Barnett Senior Vice President, Operations and Chief Information Officer Gerald J. Cimmino Vice President and Treasurer Patricia A. Gray Senior Vice President, General Counsel and Secretary Robert W. Lougee, Jr. Vice President, Investor Relations George W. Hale Vice President and Controller Joseph Mullin Vice President, Radio Frequency Engineering and Licensing D. Michael Doyle Vice President, Telecommunications Michael Brantley Vice President, Operations Nationwide Michael J. Lurie Vice President, National Retail Amber Niven Vice President, Information Technology Felicia Donahue Vice President, Operations Tracey Zimmerman Vice President, Human Resources Operations Support James Rodts Vice President, Research and Development Frank Brilliant Vice President, Advanced Product Marketing Group Jean Angelini Assistant Treasurer
7 (b) Directors and Executive Officers as of the Effective Date. It is expected that existing executive officers of the Corporation and each of the Guarantors as set forth above, shall continue to serve in their current capacities after the Effective Date. Upon the Effective Date, Messrs. Matthew Oristano, Eric Gold and William Redmond will serve as directors of the Corporation and each of the Guarantors, and Mr. C. Edward Baker, Jr. shall serve as director and Chairman of the Corporation and each of the Guarantors. The mailing address after the Effective Date for each executive officer and director of the Corporation and the Guarantors will be c/o Arch Wireless, Inc., 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581. ITEM 8. ANALYSIS OF INDENTURE PROVISIONS. The following is a general description of certain provisions of the Indenture. The description is qualified in its entirety by reference to the Indenture filed as Exhibit T3C hereto. Capitalized terms used in this Item 8 and not defined elsewhere in this application have the meanings given to such terms in the Indenture. (a) EVENTS OF DEFAULT; WITHHOLDING OF NOTICE. "Event of Default" under the Indenture means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any Governmental Authority): (1) default in the payment of any interest on any Note when it becomes due and payable and such default continues for a period of 5 days; (2) default in the payment of the principal of any Note at its Maturity (including pursuant to Sections 9.01 and 9.02 of the Indenture); (3) the Parent or any of the Subsidiaries shall fail for 60 days after written notice to the Corporation by the Trustee (at the direction of the holders of at least 25% in aggregate principal amount of the Notes then outstanding) or the holders of at least 25% in aggregate principal amount of the Notes then outstanding to observe or perform any covenant, condition or agreement contained in Sections 10.07, 10.08, 10.09, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.19, 10.20, 10.21, 10.22, 10.23, 10.24 or 10.25 of the Indenture; (4) the Parent or any of the Subsidiaries shall fail to observe or perform any other covenant, condition or agreement contained in the Indenture (other than those specified in clause (a), (b) or (c) of Section 4.01 of the Indenture), and such failure shall continue unremedied for 60 days after written notice thereof shall have been given to the Corporation by the Trustee (at the direction of the Majority Noteholders) or the Majority Noteholders; (5) (i) any Note Party shall fail to observe or perform any covenant, condition or agreement contained in the Security Documents to the extent it is a party thereto; (ii) any Note Party shall breach in any material respect any representation or warranty or agreement in any of 8 the Security Documents or in any certificates delivered in connection therewith; (iii) the repudiation by any of them of any of their obligations under any of the Security Documents; (iv) the unenforceability of the Security Documents against any of them in any material respect for any reason which, in each case, shall continue unremedied for 30 days after the earlier of the date on which (A) a Responsible Officer of the Parent becomes aware of such failure or (B) written notice thereof shall have been given to the Parent by the Trustee or the Majority Noteholders; or (v) the loss of the perfection or priority of any material portion of the Liens granted by any of them pursuant to the Security Documents for any reason; (6) the Parent or any of the Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Obligations, when and as the same shall become due and payable (after giving effect to any applicable grace period); (7) any event or condition occurs that results in any Material Obligation becoming due prior to its scheduled maturity or payment date, or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Obligation or any trustee or agent on its or their behalf to cause any Material Obligation to become due prior to its scheduled maturity or payment date or requires the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or payment date (in each case after giving effect to any applicable cure period); provided that clause (g) of Section 4.01 of the Indenture shall not apply to secured Indebtedness that becomes due solely as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; (8) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Parent or any of the Subsidiaries, or any of their debts, or of a substantial part of any of their assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Parent or any of the Subsidiaries or for a substantial part of any of their assets, and, in any such case, such proceeding or petition shall continue undismissed for 30 days or an order or decree approving or ordering any of the foregoing shall be entered; (9) the Parent or any of the Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of Section 4.01 of the Indenture, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Parent or any of the Subsidiaries or for a substantial part of any of their assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; (10) one or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 shall be rendered against the Parent or any of the Subsidiaries or any combination thereof (which shall not be fully covered by insurance without taking into account 9 any applicable deductibles) and the same shall remain undischarged or unbonded for a period of 30 consecutive days during which execution shall not be effectively stayed; (11) an Event of Default under and as defined in the Junior Indenture or any Credit Agreement shall have occurred; or (12) any Guarantor disavows any of its obligations under its Guarantee of the Notes. If a Default or an Event of Default occurs and is continuing and is known to the Trustee, the Trustee shall mail to each Holder of the Notes notice of the Default or Event of Default within 90 days after the occurrence thereof, or, if earlier, within 30 days of the Trustee obtaining knowledge thereof. Except in the case of a Default or an Event of Default in payment of principal of or interest on any Notes, the Trustee may withhold the notice to the Holders of such Notes if its Board of Directors, executive committee or a committee of its trust officers in good faith determines that withholding the notice is in the interest of the Holders of the Notes. If an Event of Default (other than an Event of Default described in clause (h) or (i) of Section 4.01 of the Indenture), shall have occurred and be continuing, the Trustee or the Majority Noteholders may, by notice to the Corporation, declare the Notes then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Notes so declared to be due and payable, together with accrued interest thereon, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Corporation. In case of any Event of Default described in clause (h) or (i) of Section 4.01 of the Indenture, the principal of the Notes then outstanding, together with accrued interest thereon, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Corporation; provided, however, that so long as any Senior Debt is outstanding, the acceleration shall not be effective until the earlier of (i) an acceleration of any Senior Debt or (ii) five Business Days after receipt by the Corporation of written notice of the acceleration of the Notes. The Holders of the Notes shall not have the independent right to direct the time, method or place of conducting any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee or, on behalf of all Holders of Notes, to consent to the waiver of any past Default or Event of Default or its consequences. All decisions regarding the declaration of an Event of Default, the acceleration of the Notes, the waiver of any Defaults and Events of Default, and the direction of the Collateral Agent and the Trustee with respect to the exercise of rights and remedies against the Corporation, the Guarantors and the Collateral shall be made by the Majority Noteholders. These limitations do not apply to a suit instituted by a Holder of a Note for enforcement of payment of any amounts then due as an unsecured claimant. (b) AUTHENTICATION AND DELIVERY OF THE NOTES UNDER THE INDENTURE AND APPLICATION OF PROCEEDS THEREOF. The Notes to be issued under the Indenture may from time to time be executed on behalf of the Corporation by one officer who shall sign the Notes for the Corporation by manual or facsimile signature. If an officer whose signature is on a Note no longer holds that office at the 10 time a Note is authenticated, the Note shall nevertheless be valid. A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under the Indenture. The Trustee shall, upon a receipt of a Company Order requesting that notes be authenticated by the Trustee, authenticate Notes for original issue. The Trustee may appoint an authenticating agent acceptable to the Corporation to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in the Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Corporation. There will be no proceeds (and therefore no application of such proceeds) from the issuance of the Notes because the Notes will be issued in partial satisfaction of the obligations owing to the Holders. (c) RELEASE OF ANY NOTE COLLATERAL SUBJECT TO THE LIEN OF THE INDENTURE. The Collateral shall be released from the Lien of the Security Documents as expressly provided therein or in connection with any transaction permitted by Section 10.11 of the Indenture (Asset Sales). Section 11.04 of the Indenture contains the general provisions for the release of Collateral from the Lien of the Security Documents in accordance with the TIA, including delivery of the certificates and opinions of fair value required by Section 314(d) of the TIA. Section 11.05(a) of the Indenture, however, permits the release of Collateral in connection with the (i) sale, disposition or transfer of inventory in the ordinary course of the Corporation's or the Guarantors' business, (ii) collection, liquidation or other disposition of Accounts (as defined in the Security Agreement) in the ordinary course of the Corporation's or the Guarantors' business, (iii) renegotiation and termination of leasehold interests in Collateral in the ordinary course of the Corporation's or the Guarantors' business, (iv) sale or disposition of, in the ordinary course of business free from the Liens of the Security Documents, any machinery, equipment, furniture, apparatus, tools or implements, materials or supplies or other similar property ("Subject Property") which the Corporation determines, in its reasonable opinion, may have become obsolete or unfit for use in the conduct of its businesses or the operation of the Collateral so long as (a) such Subject Property is replaced with or exchanged for property of equal value, and (b) upon replacing the same with, or exchanging for the same, new property, such new property shall without further action become Collateral subject to the Liens of the Security Documents; and (v) making of cash payments from the deposit accounts of the Corporation in the ordinary course of business that are not otherwise prohibited by the Indenture, and in each case without the delivery by the Corporation of the certificates and opinions required by Section 314(d) of the Act. In lieu thereof and in order to protect the interests of purchasers of the Notes and allow the Corporation to carry on its regular business in the ordinary course, Section 11.05(b) of the Indenture requires the Corporation and the Guarantors to deliver within 30 days following the end of a Measurement Period, to the Trustee and the Collateral Agent a certificate verifying that all sales of inventory, all collections and other dispositions of Accounts (as defined in the Security 11 Agreement) and any other disposition contemplated by Section 11.05(a) of the Indenture by the Corporation and the Guarantors during such Measurement Period were in the ordinary course of the Corporation's and the Guarantors' business and that all proceeds therefrom were used by the Corporation and the Guarantors in the ordinary course of their business or to make other cash payments permitted by the Indenture. In addition, pursuant to Section 10.27 of the Indenture, the Corporation is required to furnish the Trustee unaudited quarterly and audited annual consolidated financial statements meeting the requirements imposed on reporting companies under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, whether or not the Corporation is then a reporting corporation. In the Corporation's view, based on the foregoing, compliance with the certificate and opinion requirements of Section 314(d) of the TIA in the context of sales or transfers of inventory, collections and other dispositions of Accounts and any other disposition or transaction contemplated by Section 11.05(a) of the Indenture in the ordinary course of the Corporation's or the Guarantors' business is not necessary for the protection of purchasers of the Notes and such failure by the Corporation to so comply would not be inconsistent with the purposes fairly intended to be served by Section 314(d) of the TIA. The release of any Collateral from the Lien of the Indenture and of the Security Documents pursuant to the terms of the Security Documents or the Indenture will not be deemed to impair the security under the Indenture in contravention of the provisions thereof. (d) SATISFACTION AND DISCHARGE OF THE INDENTURE. Upon the written request of the Corporation, the Indenture will cease to be of further effect, and the Trustee, at the expense of the Corporation, will execute proper instruments acknowledging satisfaction and discharge of the Indenture, when: (1) either (a) all the Notes theretofore authenticated and delivered (other than Notes which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.10 of the Indenture) have been delivered to the Trustee for cancellation; or (b) all Notes not theretofore delivered to the Trustee for cancellation have come due and payable, by reason of the making of a notice of redemption or will otherwise become due and payable within one year and the Corporation has irrevocably deposited or caused to be deposited with the Trustee funds in trust for the purpose in an amount sufficient to pay and discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit, and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Corporation is a party or by which the Corporation is bound; (3) the Corporation has paid or caused to be paid all other sums payable hereunder by the Corporation; 12 (4) the Corporation has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money and/or non-callable Government Securities toward the payment of the Notes at maturity or the redemption date, as the case may be; and (5) the Corporation has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the Indenture have been complied with. Notwithstanding the satisfaction and discharge of the Indenture, the obligations of the Corporation to the Trustee under Section 5.07 of the Indenture and, the obligations of the Trustee under Section 3.02 and the last paragraph of Section 10.03 of the Indenture shall survive. The Corporation may at any time, for the purpose of obtaining the satisfaction and discharge of the Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Corporation or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Corporation or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Corporation, in trust for the payment of the principal of or interest on any Note and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Corporation on Company Request, or (if then held by the Corporation) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Corporation for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Corporation as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Corporation cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Corporation. (e) THE EVIDENCE REQUIRED TO BE FURNISHED BY THE CORPORATION TO THE TRUSTEE AS TO COMPLIANCE WITH THE CONDITIONS AND COVENANTS PROVIDED FOR IN THE INDENTURE. The Corporation will deliver to the Trustee, within 90 days after the end of each Fiscal Year of the Corporation ending after the date hereof, an Officers' Certificate, stating whether or not to the knowledge of the signers thereof the Corporation is in compliance with all the terms, provisions, covenants and conditions of the Indenture and if the Corporation shall be in Default under the Indenture, specifying all such Defaults and the nature and status thereof of which they may have knowledge and including the information referred to in clause (i) in the next paragraph. 13 The Corporation will deliver to the Trustee within 45 days after the end of each Fiscal Quarter of any Fiscal Year, an Officers' Certificate (i) demonstrating compliance with each of the financial covenants contained in Article X of the Indenture which is tested on a quarterly basis, and (ii) stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, stating the nature thereof and the action which the Corporation proposes to take with respect thereto. The Corporation will, so long as any of the Notes are Outstanding, deliver to the Trustee, within five Business Days of becoming aware of any Default or Event of Default in the performance of any covenant, agreement or condition in the Indenture, an Officers' Certificate specifying such Default or Event of Default. CONTENTS OF APPLICATION FOR QUALIFICATION. This application for qualification comprises: (a) Pages numbered 1 to 23, consecutively. (b) The statement of eligibility and qualification on Form T-1 of The Bank of New York, as Trustee under the indenture to be qualified (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). (c) The following exhibits in addition to those filed as part of the statement of eligibility and qualification of the Trustee: Exhibit Certificate of Incorporation of the Corporation, as in effect on the date T3A-1 date of filing (incorporated by reference from the Form T-3 (File No. 022- 28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Form of Restated Certificate of Incorporation of the Corporation and the T3A-2 Guarantors (other than the Parent, Arch Connecticut Valley, Inc., Arch Communication Enterprises LLC and MobileMedia License Co., L.L.C.) to be in effect as of the Effective Date (incorporated by reference from the Form T-3 File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Restated Certificate of Incorporation of the Parent, as in effect on the date T3A-3 of filing (incorporated by reference from the Registration Statement on Form S-3 (File No. 333-542) of the Parent). Exhibit Certificate of Correction filed with the Secretary of State of Delaware on T3A-4 February 15, 1996 (incorporated by reference from the Registration Statement on Form S-3 (File No. 333-542) of the Parent). Exhibit Certificate of Designations establishing the Series C Convertible Preferred T3A-5 Stock of the Parent, filed with the Secretary of State of Delaware on June 29, 1998 (incorporated by reference from the Current Report on Form 8-K of the Parent dated June 26, 1998 and filed July 23, 1998).
14 Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-6 Parent, filed with the Secretary of State of Delaware on June 4, 1996 (incorporated by reference from the Registration Statement on Form S-8 (File No. 333-07333) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-7 Parent, filed with the Secretary of State of Delaware on May 27, 1999 (incorporated by reference from the Registration Statement on Form S-4 (File No. 333-62211) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-8 Parent, filed with the Secretary of State of Delaware on June 16, 1999 (incorporated by reference from the Registration Statement on Form S-4 File No. 333-62211) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-9 Parent, filed with the Secretary of State of Delaware on April 3, 2000 (incorporated by reference from the Registration Statement on Form S-4 File No. 333-95677) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-10 Parent, filed with the Secretary of State of Delaware on April 28, 2000 (incorporated by reference from the Registration Statement on Form S-4 (File No. 333-95677) of the Parent). Exhibit Certificate of Designations establishing the Series F Cumulative T3A-11 Redeemable Preferred Stock of the Parent, filed with the Secretary of State of Delaware on February 9, 2001 (incorporated by reference from the Registration Statement on Form S-4 (File No. 333-55368) of the Parent). Exhibit Form of Restated Certificate of Incorporation of the Parent to be in effect T3A-12 as of the Effective Date (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Restated Certificate of Incorporation of Arch Wireless Communications, T3A-13 Inc., as in effect on the date of filing (incorporated by reference to Arch Wireless Communications, Inc.'s Registration Statement on Form S-1 (File No. 333-85580) of Arch Communications, Inc.). Exhibit Certificate of Incorporation of Paging Network Canadian Holdings, Inc., T3A-14 as in effect on the date of filing (filed herewith). Exhibit Certificate of Incorporation of PageNet SMR Sub, Inc., as in effect on the 3A-15 date of filing (filed herewith).
15 Exhibit Certificate of Incorporation of ArchTel, Inc., as in effect on the date of T3A-16 filing (filed herewith). Exhibit Articles of Organization of Arch Connecticut Valley, Inc., as in effect on T3A-17 the date of filing (filed herewith). Exhibit Certificate of Incorporation of Benbow Investments, Inc., as in effect on T3A-18 the date of filing (filed herewith). Exhibit Certificate of Incorporation of MobileMedia Communications, Inc., as in T3A-19 effect on the date of filing (filed herewith). Exhibit Certificate of Incorporation of Mobile Communications Corporation of T3A-20 America, as in effect on the date of filing (filed herewith). Exhibit Certificate of Incorporation of Paging Network, Inc., as in effect on the T3A-21 date of filing (filed herewith). Exhibit Certificate of Incorporation of PageNet, Inc., as in effect on the date of T3A-22 filing (filed herewith). Exhibit Certificate of Incorporation of Paging Network of America, Inc., as in T3A-23 effect on the date of filing (filed herewith). Exhibit Certificate of Incorporation of Paging Network of Colorado, Inc., as in T3A-24 effect on the date of filing (filed herewith). Exhibit T3A-25 Certificate of Incorporation of Paging Network of Northern California, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-26 Certificate of Incorporation of Paging Network of Michigan, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-27 Certificate of Incorporation of Paging Network Finance Corp., as in effect on the date of filing (filed herewith). Exhibit T3A-28 Certificate of Incorporation of Paging Network International, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-29 Certificate of Incorporation of Paging Network of San Francisco, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-30 Certificate of Formation of Arch Communication Enterprises, LLC, as in effect on the date of filing (filed herewith).
16 Exhibit T3A-31 Certificate of Formation of MobileMedia License Co., L.L.C., as in effect on the date of filing (filed herewith). Exhibit T3A-32 Form of Restated Articles of Organization of Arch Connecticut Valley, Inc. to be in effect as of the Effective Date (filed herewith). Exhibit T3A-33 Form of Restated Certificate of Formation of Arch Communication Enterprises, LLC and MobileMedia License Co., L.L.C. to be in effect as of the Effective Date (filed herewith). Exhibit T3B-1 Bylaws of the Corporation, as in effect on the date of filing (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit T3B-2 Form of Amended and Restated Bylaws of the Corporation and the Guarantors (other than the Parent, Arch Connecticut Valley, Inc., Arch Communications Enterprises LLC and MobileMedia License Co., L.L.C.) to be in effect as of the Effective Date (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit T3B-3 By-laws of the Parent, as amended and as in effect on the date of filing (incorporated by reference from the Registration Statement on Form S-3 (File No. 333-542) of the Parent). Exhibit T3B-4 Amended and Restated By-laws of the Parent to be in effect as of the Effective Date (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit T3B-5 By-laws of Arch Wireless Communications, Inc., as amended and in effect on the date of filing (incorporated herein by reference from the Registration Statement on Form S-1 (File No, 333-85580) of Arch Communications, Inc.). Exhibit T3B-6 Amended and Restated By-laws of Arch Wireless Communications, Inc. to be in effect as of the Effective Date (filed herewith). Exhibit T3B-7 By-laws of Paging Network Canadian Holdings, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-8 By-laws of PageNet SMR Sub, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-9 By-laws of ArchTel, Inc., as in effect on the date of filing (filed herewith).
17 Exhibit T3B-10 By-laws of Arch Connecticut Valley, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-11 By-laws of Benbow Investments, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-12 By-laws of MobileMedia Communications, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-13 By-laws of Mobile Communications Corporation of America, as in effect on the date of filing (filed herewith). Exhibit T3B-14 By-laws of Paging Network, Inc., as in effect on the date of filing (filed herewith). Exhibit By-laws of PageNet, Inc., as in effect on the date of filing (filed herewith). T3B-15 Exhibit By-laws of Paging Network of America, Inc., as in effect on the date of T3B-16 filing (filed herewith). Exhibit By-laws of Paging Network of Colorado, Inc., as in effect on the date of T3B-17 filing (filed herewith). Exhibit By-laws of Paging Network of Northern California, Inc., as in effect on T3B-18 the date of filing (filed herewith). Exhibit By-laws of Paging Network of Michigan, Inc., as in effect on the date of T3B-19 filing (filed herewith). Exhibit By-laws of Paging Network Finance Corp., as in effect on the date of T3B-20 filing (filed herewith). Exhibit By-laws of Paging Network International, Inc., as in effect on the date of T3B-21 filing (filed herewith). Exhibit By-laws of Paging Network of San Francisco, Inc., as in effect on the date T3B-22 of filing (filed herewith). Exhibit Form of Amended and Restated By-laws of Arch Connecticut Valley, Inc., T3B-23 to be in effect as of the Effective Date (filed herewith). Exhibit Indenture, dated as of the Effective Date, among the Corporation, the T3C Guarantors and The Bank of New York, as Trustee in the form to be qualified, including an itemized table of contents showing the articles,
18 sections and subsections of the Indenture, together with the subject matter thereof and the pages on which they appear (filed herewith). Exhibit Not applicable. T3D Exhibit Disclosure Statement of Debtors' First Amended Joint Plan of T3E Reorganization (including the Plan which is attached as Exhibit A thereto) (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit A cross reference sheet showing the location in the Indenture of the T3F provisions therein pursuant to Section 310 through 318(a), inclusive, of the TIA (incorporated by reference from the Form T-3 (File No. 022- 28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Form T-1 qualifying The Bank of New York, as Trustee under the 25.1 Indenture to be qualified (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002).
19 SIGNATURES Pursuant to the requirements of the Trust Indenture Act of 1939, the applicants, Arch Wireless Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware, and the Guarantors, have duly caused this application to be signed on their behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of Westborough, and Commonwealth of Massachusetts, on May 23, 2002. ARCH WIRELESS HOLDINGS, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer ARCH WIRELESS, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer ARCH WIRELESS COMMUNICATIONS, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK CANADIAN HOLDINGS, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGENET SMR SUB, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer 20 ARCHTEL, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer ARCH COMMUNICATIONS ENTERPRISES LLC By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer ARCH CONNECTICUT VALLEY, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer BENBOW INVESTMENTS, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer MOBILEMEDIA COMMUNICATIONS, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer MOBILE COMMUNICATIONS CORPORATION OF AMERICA By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer 21 MOBILEMEDIA LICENSE CO., L.L.C. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGENET, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK OF AMERICA, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK OF COLORADO, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK OF NORTHERN CALIFORNIA, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer 22 PAGING NETWORK OF MICHIGAN, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK FINANCE CORP. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK INTERNATIONAL, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer PAGING NETWORK OF SAN FRANCISCO, INC. By: /s/ J. ROY POTTLE ----------------------- Name: J. Roy Pottle Title: Executive Vice President and Chief Financial Officer 23 EXHIBIT INDEX
EXHIBIT DESCRIPTION - ------- ----------- Exhibit Certificate of Incorporation of the Corporation, as in effect on the date T3A-1 date of filing (incorporated by reference from the Form T-3 (File No. 022- 28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Form of Restated Certificate of Incorporation of the Corporation and the T3A-2 Guarantors (other than the Parent, Arch Connecticut Valley, Inc., Arch Communication Enterprises LLC and MobileMedia License Co., L.L.C.) to be in effect as of the Effective Date (incorporated by reference from the Form T-3 File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Restated Certificate of Incorporation of the Parent, as in effect on the date T3A-3 of filing (incorporated by reference from the Registration Statement on Form S-3 (File No. 333-542) of the Parent). Exhibit Certificate of Correction filed with the Secretary of State of Delaware on T3A-4 February 15, 1996 (incorporated by reference from the Registration Statement on Form S-3 (File No. 333-542) of the Parent). Exhibit Certificate of Designations establishing the Series C Convertible Preferred T3A-5 Stock of the Parent, filed with the Secretary of State of Delaware on June 29, 1998 (incorporated by reference from the Current Report on Form 8-K of the Parent dated June 26, 1998 and filed July 23, 1998). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-6 Parent, filed with the Secretary of State of Delaware on June 4, 1996 (incorporated by reference from the Registration Statement on Form S-8 (File No. 333-07333) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-7 Parent, filed with the Secretary of State of Delaware on May 27, 1999 (incorporated by reference from the Registration Statement on Form S-4 (File No. 333-62211) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-8 Parent, filed with the Secretary of State of Delaware on June 16, 1999 (incorporated by reference from the Registration Statement on Form S-4 File No. 333-62211) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the T3A-9 Parent, filed with the Secretary of State of Delaware on April 3, 2000 (incorporated by reference from the Registration Statement on Form S-4 File No. 333-95677) of the Parent). Exhibit Certificate of Amendment of Restated Certificate of Incorporation of the
T3A-10 Parent, filed with the Secretary of State of Delaware on April 28, 2000 (incorporated by reference from the Registration Statement on Form S-4 (File No. 333-95677) of the Parent). Exhibit Certificate of Designations establishing the Series F Cumulative T3A-11 Redeemable Preferred Stock of the Parent, filed with the Secretary of State of Delaware on February 9, 2001 (incorporated by reference from the Registration Statement on Form S-4 (File No. 333-55368) of the Parent). Exhibit Form of Restated Certificate of Incorporation of the Parent to be in effect T3A-12 as of the Effective Date (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Restated Certificate of Incorporation of Arch Wireless Communications, T3A-13 Inc., as in effect on the date of filing (incorporated by reference to Arch Wireless Communications, Inc.'s Registration Statement on Form S-1 (File No. 333-85580) of Arch Communications, Inc.). Exhibit Certificate of Incorporation of Paging Network Canadian Holdings, Inc., T3A-14 as in effect on the date of filing (filed herewith). Exhibit Certificate of Incorporation of PageNet SMR Sub, Inc., as in effect on the 3A-15 date of filing (filed herewith). Exhibit Certificate of Incorporation of ArchTel, Inc., as in effect on the date of T3A-16 filing (filed herewith). Exhibit Articles of Organization of Arch Connecticut Valley, Inc., as in effect on T3A-17 the date of filing (filed herewith). Exhibit Certificate of Incorporation of Benbow Investments, Inc., as in effect on T3A-18 the date of filing (filed herewith). Exhibit Certificate of Incorporation of MobileMedia Communications, Inc., as in T3A-19 effect on the date of filing (filed herewith). Exhibit Certificate of Incorporation of Mobile Communications Corporation of T3A-20 America, as in effect on the date of filing (filed herewith). Exhibit Certificate of Incorporation of Paging Network, Inc., as in effect on the T3A-21 date of filing (filed herewith). Exhibit Certificate of Incorporation of PageNet, Inc., as in effect on the date of T3A-22 filing (filed herewith). Exhibit Certificate of Incorporation of Paging Network of America, Inc., as in T3A-23 effect on the date of filing (filed herewith).
Exhibit Certificate of Incorporation of Paging Network of Colorado, Inc., as in T3A-24 effect on the date of filing (filed herewith). Exhibit T3A-25 Certificate of Incorporation of Paging Network of Northern California, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-26 Certificate of Incorporation of Paging Network of Michigan, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-27 Certificate of Incorporation of Paging Network Finance Corp., as in effect on the date of filing (filed herewith). Exhibit T3A-28 Certificate of Incorporation of Paging Network International, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-29 Certificate of Incorporation of Paging Network of San Francisco, Inc., as in effect on the date of filing (filed herewith). Exhibit T3A-30 Certificate of Formation of Arch Communication Enterprises, LLC, as in effect on the date of filing (filed herewith). Exhibit T3A-31 Certificate of Formation of MobileMedia License Co., L.L.C., as in effect on the date of filing (filed herewith). Exhibit T3A-32 Form of Restated Articles of Organization of Arch Connecticut Valley, Inc. to be in effect as of the Effective Date (filed herewith). Exhibit T3A-33 Form of Restated Certificate of Formation of Arch Communication Enterprises, LLC and MobileMedia License Co., L.L.C. to be in effect as of the Effective Date (filed herewith). Exhibit T3B-1 Bylaws of the Corporation, as in effect on the date of filing (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit T3B-2 Form of Amended and Restated Bylaws of the Corporation and the Guarantors (other than the Parent, Arch Connecticut Valley, Inc., Arch Communications Enterprises LLC and MobileMedia License Co., L.L.C.) to be in effect as of the Effective Date (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit T3B-3 By-laws of the Parent, as amended and as in effect on the date of filing (incorporated by reference from the Registration Statement on Form S-3 (File No. 333-542) of the Parent). Exhibit T3B-4 Amended and Restated By-laws of the Parent to be in effect as of the Effective Date (incorporated by reference from the Form T-3 (File No.
022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit T3B-5 By-laws of Arch Wireless Communications, Inc., as amended and in effect on the date of filing (incorporated herein by reference from the Registration Statement on Form S-1 (File No, 333-85580) of Arch Communications, Inc.). Exhibit T3B-6 Amended and Restated By-laws of Arch Wireless Communications, Inc. to be in effect as of the Effective Date (filed herewith). Exhibit T3B-7 By-laws of Paging Network Canadian Holdings, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-8 By-laws of PageNet SMR Sub, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-9 By-laws of ArchTel, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-10 By-laws of Arch Connecticut Valley, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-11 By-laws of Benbow Investments, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-12 By-laws of MobileMedia Communications, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-13 By-laws of Mobile Communications Corporation of America, as in effect on the date of filing (filed herewith). Exhibit T3B-14 By-laws of Paging Network, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-15 By-laws of PageNet, Inc., as in effect on the date of filing (filed herewith). Exhibit T3B-16 By-laws of Paging Network of America, Inc., as in effect on the date of filing (filed herewith). Exhibit By-laws of Paging Network of Colorado, Inc., as in effect on the date of T3B-17 filing (filed herewith). Exhibit By-laws of Paging Network of Northern California, Inc., as in effect on T3B-18 the date of filing (filed herewith). Exhibit By-laws of Paging Network of Michigan, Inc., as in effect on the date of T3B-19 filing (filed herewith).
Exhibit By-laws of Paging Network Finance Corp., as in effect on the date of T3B-20 filing (filed herewith). Exhibit By-laws of Paging Network International, Inc., as in effect on the date of T3B-21 filing (filed herewith). Exhibit By-laws of Paging Network of San Francisco, Inc., as in effect on the date T3B-22 of filing (filed herewith). Exhibit Form of Amended and Restated By-laws of Arch Connecticut Valley, Inc., T3B-23 to be in effect as of the Effective Date (filed herewith). Exhibit Indenture, dated as of the Effective Date, among the Corporation, the T3C Guarantors and The Bank of New York, as Trustee in the form to be qualified, including an itemized table of contents showing the articles, sections and subsections of the Indenture, together with the subject matter thereof and the pages on which they appear (filed herewith). Exhibit Not applicable. T3D Exhibit Disclosure Statement of Debtors' First Amended Joint Plan of T3E Reorganization (including the Plan which is attached as Exhibit A thereto) (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit A cross reference sheet showing the location in the Indenture of the T3F provisions therein pursuant to Section 310 through 318(a), inclusive, of the TIA (incorporated by reference from the Form T-3 (File No. 022- 28581) filed by the Corporation and the Guarantors on March 20, 2002). Exhibit Form T-1 qualifying The Bank of New York, as Trustee under the 25.1 Indenture to be qualified (incorporated by reference from the Form T-3 (File No. 022-28581) filed by the Corporation and the Guarantors on March 20, 2002).
EX-99.(T3A)(14) 3 b42413a1ex99-t3a14.txt CERTIFICATE OF INCORPORATION PAGING NETWORK CANADA EXHIBIT T3A-14 CERTIFICATE OF INCORPORATION OF PAGING NETWORK CANADIAN HOLDINGS, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is: Paging Network Canadian Holdings, Inc. SECOND: The registered office of the corporation in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is 3,000 shares of Common Stock, $.01 par value per share. FIFTH: The name and mailing address of the incorporator is as follows: NAME MAILING ADDRESS Jane E. Pike Bingham, Dana & Gould 150 Federal Street Boston, MA 02110 SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders. (a) Directors need not be stockholders of the corporation. (b) Subject to any limitation contained in the by-laws, the board of directors may make by-laws, and from time to time may alter, amend or repeal any by-laws, but any by-laws made by the board of directors may be altered, amended or repealed by the stockholders at any meeting of stockholders by the affirmative vote of the holders of a majority of the stock present and voting at such meeting, provided notice that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice of such meeting. - 2 - (c) The board of directors shall have power from time to time to fix and determine and to vary the amount of the working capital of the corporation, to direct and determine the use and disposition thereof, to set apart out of any funds of the corporation available for dividends a reserve or reserves for any proper purposes and to abolish any such reserve in the manner in which it was created. (d) The board of directors may from time to time determine whether and to what extent and at which times and places and under what conditions and regulations the accounts and books of the corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, book or document of the corporation except as conferred by statute or as authorized by the board of directors. (e) No contract or other transaction 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 or other interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorized the contract or other transaction, or solely because his or their votes are counted for such purpose, provided that the material facts as to such relationship or interest and as to the contract or other transaction are disclosed or are known (1) to the board of directors or the committee, and the board or committee in good faith authorizes the contract or other transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (2) to the stockholders entitled to vote thereon, and the contract or other transaction is specifically approved in good faith by vote of the stockholders. (f) Any contract, act or transaction of the corporation or of the directors may be ratified by a vote of a majority of the shares having voting power at any meeting of stockholders, or at any special meeting called for such purpose, and such ratification shall, so far as permitted by law and by this certificate of incorporation, be as valid and as binding as though ratified by every stockholder of the corporation. (g) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to (i) any agreements among and between stockholders, (ii) the rights of creditors and (iii) rights expressly provided for particular classes or series of stocks, for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the - 3 - corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (h) Elections of directors need not be by ballot. (i) The corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to be a director or officer of this corporation or while a director or officer is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement or incurred in connection with the investigation, preparation to defend or defense of such action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any by-law, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this Section (i) of Article SIXTH shall not adversely affect any right or protection of a director or officer of the corporation existing at the time of such repeal or modification. SEVENTH: No holder of stock of the corporation shall be entitled as of right to purchase or subscribe for any part of any unissued stock of the corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the corporation, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock or such additional authorized issue of new stock, but rather such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and disposed of pursuant to resolution of the board of directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the board of directors in the exercise of their discretion. - 4 - EIGHTH: Meetings of stockholders may be held without the State of Delaware, if the by-laws so provide. The books of the corporation may be kept (subject to the provisions of the Delaware General Corporation Law) outside of the State of Delaware at such place or places as may be from time to time designated by the board of directors. NINTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 31st day of October, 1994. /s/ Jane E. Pike --------------------------- Jane E. Pike, Incorporator EX-99.(T3A)(15) 4 b42413a1ex99-t3a15.txt CERTIFICATE OF INCORPORATION PAGENET SMR SUB, INC. Exhibit T3A-15 CERTIFICATE OF INCORPORATION OF PAGENET SMR SUB, INC. FIRST. The name of the Corporation is: PageNet SMR Sub, Inc. SECOND. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD. The nature of the business or purposes to be conducted or promoted by the Corporation is as follows: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, $0.01 par value per share. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of Delaware. FIFTH. The name and mailing address of the sole incorporator are as follows:
NAME MAILING ADDRESS ---- --------------- Gerald J. Cimmino 1800 West Park Drive, Suite 250 Westborough, MA 01581
SIXTH. In furtherance of and not in limitation of powers conferred by statute, it is further provided: 1. Election of directors need not be by written ballot. 2. The Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation. SEVENTH. Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any -1- effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. EIGHTH. The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify each 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 he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an "Indemnitee"), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of an Indemnitee in connection with such action, suit or proceeding and any appeal therefrom. As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. In the event that the Corporation does not assume the defense of any action, suit, proceeding or investigation of which the Corporation receives notice under this Article, the Corporation shall pay in advance of the final disposition of such matter any expenses (including attorneys' fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom; PROVIDED, HOWEVER, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article, which undertaking shall be accepted without reference to the financial ability of the Indemnitee to make such repayment; and FURTHER PROVIDED that no such advancement of expenses shall be made if it is determined that (i) the Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, the Indemnitee had reasonable cause to believe his conduct was unlawful. The Corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation. In addition, the Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, -2- such Indemnitee shall promptly refund such indemnification payments to the Corporation to the extent of such insurance reimbursement. All determinations hereunder as to the entitlement of an Indemnitee to indemnification or advancement of expenses shall be made in each instance by (a) a majority vote of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question ("disinterested directors"), whether or not a quorum, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (c) independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation), or (d) a court of competent jurisdiction. The indemnification rights provided in this Article (i) shall not be deemed exclusive of any other rights to which an Indemnitee may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of the Indemnitees. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article. NINTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation. -3- EXECUTED at Westborough, Massachusetts, on November 2, 2000. /s/ Gerald J. Cimmino ---------------------------------------- Gerald J. Cimmino Sole Incorporator -4- CERTIFICATE OF MERGER OF ST. LOUIS ACQUISITION CORP. (A DELAWARE CORPORATION) INTO PAGING NETWORK, INC. (A DELAWARE CORPORATION) Paging Network, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify: FIRST: That the name and state of incorporation of each of the constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION ---- ---------------------- Paging Network, Inc. Delaware St. Louis Acquisition Corp. Delaware
SECOND: That an Agreement and Plan of Merger between the parties to the merger has been approved, adopted, certified, executed and acknowledged by St. Louis Acquisition Corp. in accordance with the requirements of Subsection (c) of Section 251 of the General Corporation Law of the State of Delaware and by Paging Network, Inc. in accordance with Section 303 of the General Corporation Law of the State of Delaware. THIRD: That, pursuant to Section 303(c) of the General Corporation Law of the State of Delaware, provision for the making of this Certificate of Merger is contained in an order, dated October 26, 2000, of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of Paging Network, Inc. FOURTH: That the name of the surviving corporation of the merger is Paging Network, Inc. FIFTH: That the Certificate of Incorporation of Paging Network, Inc. shall be amended to read in its entirety as set forth in Exhibit A attached hereto and, as amended, shall be the Restated Certificate of Incorporation of the surviving corporation. SIXTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving corporation. The address of said principal place of business is 14911 Quorum Drive, Dallas, Texas 75240. SEVENTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation upon request and without cost to any stockholder of any constituent corporation. EIGHTH: That this Certificate of Merger shall be effective at 1:30 p.m. Eastern Standard Time on November 10, 2000. [Remainder of Page Intentionally Left Blank] -2- IN WITNESS WHEREOF, Paging Network, Inc. has caused this Certificate to be executed by its Chairman of the Board and Chief Executive Officer and attested by its Secretary this 9th day of November, 2000. PAGING NETWORK, INC. (a Delaware corporation) By: /s/ John P. Frazee, Jr. ------------------------------------ John P. Frazee, Jr. Chairman of the Board and Chief Executive Officer Dated: November 9, 2000 ATTEST: /s/ Julian B. Castelli - ------------------------------- Julian B. Castelli Secretary -3- EX-99.(T3A)(16) 5 b42413a1ex99-t3a16.txt CERTIFICATE OF INCORPORATION ARCHTEL, INC. EXHIBIT T3A-16 CERTIFICATE OF INCORPORATION OF ARCHTEL, INC. FIRST: The name of the corporation is ArchTel, Inc. SECOND: The registered office of the Corporation in the State of Delaware is located at 1013 Centre Road, City of Wilmington, County of New Castle, Delaware 19805, and the name of its registered agent at such address is The Prentice-Hall Corporation System, Inc. THIRD: The purpose of the Corporation is to engage, anywhere in the world, in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware; and to possess and exercise all powers and privileges granted by the General Corporation Law of Delaware. FOURTH: The total number of shares of capital stock which the Corporation is authorized to issue is 5,000 (five thousand) shares, all of which shall be shares of Common Stock of the par value of $1.00 per share. FIFTH: The name and mailing address of the incorporator are as follows: NAME MAILING ADDRESS ---- --------------- Garry B. Watzke 745 Atlantic Avenue, Boston, MA 02111 SIXTH: The name and marling address of the person who is to serve as sole director until the first meeting of stockholders, or until his successor is elected and qualified, whichever first occurs, is as follows: C. Edward Baker, Jr. 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581 SEVENTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of its directors and stockholders, it is further provided: 1. The number of directors of the Corporation shall be as prescribed in the By-laws of the Corporation but such number may from time to time be increased or decreased in such manner as may be prescribed by the By-laws. In no event shall the number of Directors be less than the minimum number prescribed by law. 2. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized and empowered: (a) Subject to the applicable provisions of the By-laws then in effect, to determine, from time to time, whether and to what extent and at what times and places and under what conditions and regulations the accounts and books of the Corporation, or any of them, shall be open to the inspection of the 2 stockholders, and no stockholder shall have any right to inspect any account or document of the Corporation, except as conferred by the laws of the State of Delaware, unless and until authorized so to do by resolution of the Board of Directors or of the stockholders of the Corporation. (b) Without the assent or vote of the stockholders to authorize and issue obligations of the Corporation, secured or unsecured, to include therein such provisions as to redeemability, convertibility or otherwise, as the Board of Directors, in its sole discretion, may determine and to authorize the mortgaging or pledging, as security therefor, of any property of the Corporation, real or personal, including after-acquired property. (c) To establish a bonus, profit-sharing or other types of incentive or compensation plans for the employees (including officers and Directors) of the Corporation and to fix the amount of profits to be distributed or shared and to determine the persons to participate in any such plans and the amounts their respective participants. (d) To make, alter, amend or repeal the By-laws of the Corporation. (e) To determine for any purpose and in any manner not inconsistent with the other provisions of this Certificate of Incorporation the amount of the gross assets, of the liabilities, of the net assets or of the net profits of the Corporation as the same exist or shall have existed at any time or for any period or periods, and to create, increase, abolish or reduce any reserve or reserves for accrued, accruing or contingent liabilities or expenses, including taxes and other charges. 3. Any Director or any officer elected or appointed by the stockholders or by the Board of Directors may be removed at any time in such manner as shall be provided in the Joint Venture Agreement or By-laws of the Corporation. 4. In the absence of fraud, no contract or other transaction between the Corporation and any other corporation, and no act of the Corporation, shall in any way be affected or invalidated by the fact that any of the Directors of the Corporation are pecuniarily or otherwise interested in, or are directors or officers of, such other corporation and, in the absence of fraud, any Director may be a member, may be a party to, or may be pecuniarily or otherwise interested in, any contract or transaction of the Corporation; provided, in any case, that the fact that he or such firm is so interested shall be disclosed or shall have been known to the Board of Directors or a majority thereof; and any Director of the Corporation who is also a director or officer of any such other corporation, or who is also interested, may be counted in determining the existence of a quorum at any meeting of the Board of Directors of the Corporation which shall authorize any such contract, act or transaction and may vote thereat to authorize any such contract, act or transaction, with like force and effect as if he were not such director or officer of such corporation, or not so interested. 3 5. Any contract, act or transaction of the Corporation or of the Directors may be ratified by a vote of a majority of the shares having voting powers at any meeting of stockholders, or at any special meeting called for such purpose, and such ratification shall, so far as permitted by law and by this Certificate of Incorporation, be as valid and as binding as though ratified by every stockholder of the Corporation. 6. No Director of the Corporation shall be liable to any person on account of any action undertaken by him as such director in reliance in good faith upon the existence of any fact or circumstance reported or certified to the Board of Directors by any officer of the Corporation or by any independent auditor, engineer, or consultant retained or employed as such by the Board of Directors. 7. Meetings of the stockholders may be held without the State of Delaware, if the By-laws so provides. The books of the Corporation may be kept (subject to any statutory provision) outside the State of Delaware at such place or places as may be from time to time designated by the Board of Directors or in the By-laws of the Corporation. Elections of directors need not be by ballot unless the By-laws shall otherwise provide. EIGHTH: No director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a director, except, in addition to any and all other requirements for such liability, (i) for any breach of such 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) to the extent provided under Section 174 of Title 8 of the Delaware Code (relating to the General Corporation Law of the State of Delaware) or any amendment thereto or successor provision thereto, or (iv) for any transaction for which such director derived an improper personal benefit. Neither the amendment nor repeal of this Article EIGHTH, nor the adoption of any provision of this Certificate of Incorporation inconsistent with the Article EIGHTH, shall eliminate or reduce the effect of this Article EIGHTH in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article EIGHTH, would accrue or arise prior to such amendment, repeal, or adoption of an inconsistent provision. NINTH: The stockholders of the Corporation shall not be personally liable for the payment of the Corporation's debts. TENTH: The Corporation shall indemnify, defend and hold harmless 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, investigative or other, including appeals, by reason of the fact that he or she 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, trustee, officer, employer or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, to the fullest extent authorized by Section 145 of the Delaware General Corporation Law, as amended from time to time, against all expenses, liabilities and losses (including attorneys' fees, judgment, fines, ERISA excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith; provided, however, that, except with respect to proceedings seeking to enforce the rights to indemnification granted herein, the Corporation shall indemnify any such person seeking indemnification in connection with a 4 proceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person which provide for indemnification greater or different than that provided in this Article TENTH. Any repeal or modification of the provisions of this Article TENTH, or the adoption of any provision inconsistent herewith, shall not adversely affect any right or protection existing hereunder immediately prior to such repeal, modification or adoption of an inconsistent provision. Notwithstanding the foregoing, all indemnification provided for in this Article TENTH shall not be deemed exclusive of any other rights to which those entitled to receive indemnification or reimbursement hereunder may be entitled under any By-law of the Corporation, agreement, vote of stockholders or disinterested directors or otherwise. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 17th day of June, 1998. /s/ Garry B. Watzke ----------------------- Garry B. Watzke Sole Incorporator CERTIFICATE OF CHANGE OF REGISTERED AGENT AND REGISTERED OFFICE ***** Archtel, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: The present registered agent of the corporation is The Corporation Service Company. and the present registered office of the corporation is in the county of New Castle. The Board of Directors of Archtel, Inc. adopted the following resolution on the 17 day of May, 2000. Resolved, that the registered office of Archtel, Inc. in the state of Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, and the authorization of the present registered agent of this corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby constituted and appointed the registered agent of this corporation at the address of its registered office. IN WITNESS WHEREOF, Archtel, Inc. has caused this statement to be signed by Kristen Betzger, its Vice President, this 15th day of August, 2000. /s/ Kristen Betzger --------------------------------- EX-99.(T3A)(17) 6 b42413a1ex99-t3a17.txt ARTICLES OF INCORPORATION ARCH CONNECTICUT VALLEY Exhibit T3A-17 THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL JOSEPH CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. 02108 ARTICLES OF ORGANIZATION (Under G.L. Ch. 156B) Incorporators NAME POST OFFICE ADDRESS - ---- Include given name in full in case of natural persons; in case of a corporation, give state of incorporation. Garry B. Watzke Schooner Capital Corporation 77 Franklin Street Boston, Massachusetts 02110 The above-named incorporator(/s/) do hereby associate (themselves) with the intention of forming a corporation under the provisions of General Laws. Chapter 156B and hereby state(s): 1. The name by which the corporation shall be known is: Arch Connecticut Valley, Inc. 2. The purpose for which the corporation is formed is as follows: a. To acquire, own or operate radio common carrier, paging and conventional mobile telephone systems, both within and without the Commonwealth of Massachusetts; and to carry on and undertake any business, transaction or activity relating to the foregoing and, in the course of such business, transaction or activity, to (i) draw, accept, endorse, acquire, (See continuation Sheet 2A) CONTINUATION SHEET 2A a. and sell any and all negotiable or transferable instruments and securities, (ii) make and enter into contracts, agreements, and obligations, of every type and description, with full power to perform any and all acts connected therewith or arising therefrom or incidental thereto, and (iii) perform any and all additional acts which are necessary and proper. b. To transfer, to other persons or corporations, by grant, license, franchise, or other method, the right or privilege to carry on any kind of business on such terms as the Corporation shall deem expedient or proper. c. To acquire the good will, business, property or assets (including a trade name or trade styie), and to assume or undertake the whole or any part of the liabilities of any person, firm, association or corporation and to pay for the same in cash, stock, bonds, debentures or other securities of the Corporation, or otherwise, as the directors may determine. d. To carry on any manufacturing, mercantile, selling, management, service or other business, transaction or activity which may be lawfully carried on by a corporation organized under Mass. Gen. Laws C. 156B, as amended (or the provisions of any substituted chapter of the General Laws of the Commonwealth of Massachusetts, dealing with the same general subject matter as such Chapter as now in effect, which may hereafter be enacted), whether or not related to those purposes referred to in the foregoing paragraphs. e. To carry on any business, transaction or activity through a wholly or partly-owned subsidiary, or as a partner. f. To carry on any business, transaction or activity ref erred to in the foregoing paragraphs to the same extent as might an individual, whether as principal, agent, contractor or otherwise, and either alone or in conjunction with any corporation, association, trust, firm, individual or government agency. g. To have as additional purposes all powers granted and conferred by the laws of the Commonwealth of Massachusetts upon business corporations organized under Chapter 156B (Or any such substituted chapter) of the General Laws of Massachusetts, provided, however, that no such purpose shall include any activity inconsistent with such Chapter 156E (or any such substituted chapter), or any other applicable provisions of the General Laws of Massachusetts. 3. The total number of shares and the par value, if any, of each class of stock within the corporation is authorized as follows: - -------------------------------------------------------------------------------- WITHOUT PAR VALUE WITH PAR VALUE CLASS OF ----------------- -------------------------------------- STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE AMOUNT - -------------------------------------------------------------------------------- Preferred - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Common 250,000 $.01 $2,500 - -------------------------------------------------------------------------------- *4. If more than one class of stock is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established: *5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: (See Continuation Sheets 5A-1 through 5A-6) *6. Other lawful provisions, if any, for the conduct and regulation of business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders: (See Continuation Sheets 6A and 6B) * If there are no provisions state "None". ARCH CONNECTICUT VALLEY, INC. CONTINUATION SHEET 5A a. Any Stockholder (which term includes the heirs, assigns, executors or administrators of a deceased Stockholder and any person claiming an interest in shares of stock as the result of a levy of attachment or execution, or other claimed transfer by operation of law) desiring to sell or transfer stock owned by him or it, or claiming a right to have stock transferred to him or it (otherwise than by gift or pursuant to the laws of descent and distribution of estates, but including any other transfer by operation of law, including without limitation, a merger, consolidation, levy of attachment or execution or realization upon a pledge or other security interest) shall first offer to sell such shares of stock (the "Stock") to, or permit the purchase of such Stock by, the Corporation, or the other stockholders, in the manner described, and at a price determined as provided, below. A pledge or the creation of a security interest shall not be deemed a transfer restricted by this Article 5, PROVIDED, that the pledgor or other creator of a security interest retains all voting rights with respect to the interest if foreclosed or levied upon, but any such realization upon such pledge or security interest shall be a transfer subject to this Article 5. A transfer by gift or pursuant to the laws of descent and distribution of estates shall not be restricted by this Article 5, but the donee, heir, legatee or distributee who acquires stock in any such transfer shall hold the same subject to the provisions of this Article 5 in respect of any subsequent transfer thereof. b. The Stockholder shall notify the Corporation, in the manner hereinafter provided, of his or its desire to sell or transfer, or to cause the transfer of, Stock owned or claimed by him or it, by a written notice setting forth (i) the number of shares which he or it desires to sell, transfer or cause to be transferred; (ii) the name and address of the proposed transferee and the nature of the proposed transfer; (iii) the cash price, and/or the kind and amount of non-cash consideration, if any, to be received for such proposed transfer, the Stockholder's estimate of the fair market value of any such non-cash consideration and (if the proposed transfer is a transfer by operation of law) the Stockholder's estimate of the fair market value of the Stock to be transferred; (iv) such Stockholder's irrevocable offer to sell, or cause the sale of, the Stock to this Corporation at the cash price stated in part (iii) of such notice, or at the sum of any cash included in such price and the fair market value of the non-cash consideration recited in such notice, or (if the proposed transfer would be a transfer by operation of law) at the fair market value of the Stock to be transferred, as the case may be; and (v) the name and business address of one person to act as an advisor in determination of the fair market value of such non-cash consideration or such Stock, if appraisal shall be required by these provisions. c. The Corporation, within thirty (30) days after receipt of such notice, and by notice in writing to the Stockholder, given as hereinafter provided, shall: (a) accept the offer at the price set forth in the notice given by such Stockholder, or at a price in cash equal to the sum of any cash consideration recited in the Stockholder's notice and the fair market value stated in such notice with respect to any non-cash consideration to be received therefor, or (if the proposed transfer would be a transfer by operation of law) at the fair market value of the Stock to be transferred, determined by appraisal in accordance herewith, and setting forth the name and business address of a second advisor to assist in the determination of such fair market value. The advisors so designated by the Stockholder and the Corporation shall then select an appraiser experienced in the valuation of property of the type to be valued, if practicable, and such advisors shall at once notify the Corporation and such Stockholder of the name and business address of such appraiser. If the advisors so designated shall not within ten (10) days of their appointment select such appraiser, then either the Corporation or the Stockholder may make application, upon ten (10) days' written notice to each advisor, to any judge or a court of general jurisdiction in Suffolk County, Massachusetts, for the appointment of a third advisor who shall, with the consent of either one of the advisors so designated by the Corporation and such Stockholder, select such appraiser. The appraiser so selected shall within thirty (30) days after his selection determine in good faith the fair market value of the non-cash consideration or of the Stock in question, and report his determination to the Corporation and the Stockholder, and such determination shall bind each of them. d. Notwithstanding the provisions of the foregoing paragraph, if the Board of Directors of the Corporation shall, by majority vote, so determine, upon receipt of a proposed transfer from a Stockholder, the Corporation's right to purchase the shares of Stock may be assigned, without consideration, to the stockholders of the Corporation who do not desire to sell or transfer their stock ("Non-selling stockholders"). In such event, the Non-selling stockholders shall be entitled to purchase shares of the Stock pro rata among themselves in proportion to the number of shares of stock owned by the Non-selling stockholders; provided, that if some Non-selling stockholders decline to purchase the shares of Stock to which they would be entitled hereunder, such shares shall be allocated among Non-selling stockholders who desire to purchase such shares, pro rata in accordance with the stockholders' ownership of stock. Non-selling stockholders who desire to purchase Stock pursuant to this paragraph shall have the same rights and be subject to the same obligations as the Corporation if the Corporation were purchasing the shares of Stock. e. Upon receipt by such Stockholder of the Corporation's written notice of its intention to accept such offer, or upon the delivery to such Stockholder of the report of such appraiser as to the fair market value of any such non-cash consideration, the Stockholder shall forthwith tender the certificate or certificates for the Stock to the Corporation at its address for notices provided herein, in due form for transfer, and the Corporation shall promptly deliver to such Stockholder its certified or official bank check for the purchase price of such Stock, against such tender. f. If the Corporation shall notify such Stockholder of its refusal to purchase such Stock, or shall fail, neglect or refuse for a period of (30) days after the date of such Stockholder's notice, to respond to such Stockholder's notice of intended transfer, or shall fail, neglect or refuse for a period of five (5) business days after such tender to pay the purchase price of the Stock, such Stockholder may, at any time within sixty (60) days after such a notice of refusal or the expiration of such thirty (30) or five (5) day periods, as the case may be (and without limitation of the Stockholder's right to seek recovery of any damages caused by such failure, neglect or refusal on the part of the Corporation to pay for such Stock against such tender), sell or otherwise transfer the Stock to the person or persons named in the notice of proposed transfer given by him in accordance with these provisions, in the manner and for the kinds and amounts of consideration stated in such notice, but any such transferee-shall hold such Stock subject to these provisions with respect to any further transfer of the Stock so transferred to him or it. If such Stockholder shall not have transferred such Stock in accordance with these provisions within such sixty (60) day period, then no other or further transfer of such Stock may be made by such Stockholder without again complying with these provisions. g. Presentation to the Corporation of a stock certificate duly endorsed by the Stockholder in whose name such certificate is registered, or accompanied by a duly executed stock power, shall be considered for all purposes as a transfer of the Stock represented by such certificate, but a Stockholder claiming an interest in Stock registered in the name of another, whether such interest shall arise by levy of execution, attachment, or other operation of law, or pursuant to a pledge or other security interest, shall be entitled to effect a transfer upon submission of the certificate for such Stock, and an order of court, or other evidence reasonably satisfactory to the Corporation, of the fact and nature of such Stockholder's interest in such Stock. Effectuation of all such transfers shall be subject to compliance with the terms of this Article 5. h. Notices given under this Article 5 shall be given in writing, by handing a copy thereof to the person entitled thereto, or by mailing the same by registered mail, return receipt requested, postage prepaid, from a point within the continental United States. If given to the Corporation, such notice shall be addressed to the Corporation at its principal business address in the Commonwealth of Massachusetts, marked Attention: President, with a copy to each member of the Board of Directors. If given to a Stockholder, such notice shall be addressed to such Stockholder's registered address on the record books of the Corporation, if any, unless such Stockholder shall have notified the Corporation to employ a different address for such notices, by notice given in accordance herewith. Notice given in accordance with these provisions shall be deemed to have been given upon delivery, in the case of notice given in person, and on the third business day after mailing, in the case of notice given by mail. i. A Stockholder shall be entitled to rely upon the most recent filings by the Corporation under Sections 14 and 53 of the Business Corporation Law of Massachusetts (Ch. 156B of the General Laws), as now in effect or any substituted provisions dealing with the same general subject matter, as then in effect, in determining the Corporation's principal business office in Massachusetts, and the names and addresses of the members of the Corporation's Board of Directors. j. No such shares of Stock shall be sold or transferred on the books of the Corporation, and the Corporation shall not be required to recognize any claimed or purported transfer, until the provisions of this Article 5 have been complied with, but the Board of Directors may in any particular instance waive such requirement by vote of three-fourths (3/4) of the Directors at the time in office. If any Stockholder shall purport to make a transfer of shares of stock without compliance with these provisions, or shall claim an interest in shares of stock acquired without such compliance, then unless such compliance shall have been waived by such vote of the Board of Directors, the Corporation shall be entitled, at any time within six (6) months of receiving notice of such purported transfer, to call upon such purported transferee, by notice given to such purported transferee at his or its principal business address, determined by the Board of Directors, acting in good faith, and otherwise in accordance with the second last preceding paragraph of this Article 5, to sell such shares to the Corporation at their fair market value at the time of such notice, determined by appraisal conducted, as nearly as may be, accordance with the second paragraph of this Article 5. If such purported transferee shall fail, neglect or refuse, for a period of thirty (30) days after the giving of such notice, to designate an advisor for the purpose of participating in the selection of an appraiser for such shares, the Corporation shall be entitled to apply to a court of general jurisdiction in Suffolk County, Massachusetts for the appointment of a second advisor, in addition to its own, as though such purported transferee had appointed an advisor, as provided in the second paragraph of this Article 5, but the advisors of such purported transferee of the Corporation had been unable to agree on the designation of an appraiser. k. Certificates representing shares of the Stock shall bear the following legend: "The shares represented hereby are subject to restrictions on transfer; the Corporation will furnish a copy of the terms of such restrictions without charge to the holder hereof upon written request." CONTINUATION SHEET 6A Other lawful provisions for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining or regulating the powers of the corporation, or of its directors or stockholders or of any class of stockholders, are as follows: a. The directors may make, amend or repeal the by-laws in whole or in part except with respect to any provision thereof which, by law or the by-laws, requires action by the stockholders; b. Meetings of the stockholders may be held anywhere in the United States; c. Each director and each officer elected by the stockholders (including persons elected by directors to fill vacancies in the Board of Directors or in any such offices), and each former director and officers, and the heirs, executors, administrators and assigns of each of them, shall be indemnified by the corporation, against all costs and expenses, including fees and disbursements of counsel and the cost of settlements (other than amounts paid to the corporation itself) reasonably incurred by, or imposed upon, him in connection with or arising out of any action, suit or proceeding, civil or criminal, in which he may be involved, or incurred in anticipation of any action; or by reason of any action alleged to have been taken or omitted by him as a director or officer of the corporation. Officers elected by the directors but who are not directors, and employees and other agents of the corporation (including persons who serve at its request as directors or officers of another organization in which its own shares or of which it is a creditor), and each such former officer, employee and agent, and the heirs, executors, administrators and assigns of each of them, may be indemnified by the corporation to the extent, if any, authorized by the Board of Directors in its sole discretion. No indemnification shall be provided to any person, or to his heirs, executor, administrator or assigns, with respect to any matter as to which he shall have been finally adjudicated in any action, suit or proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation. CONTINUATION SHEET 6B The foregoing indemnification shall not be exclusive of any other rights of indemnification for which any such director, officer, employee or agent may be entitled; d. No contract or other transaction between the corporation and any other person, firm or corporation shall, in the absence of fraud, in any way be affected or invalidated, nor shall any director be subject to surcharge with respect to any such contract or transaction by the fact that such director, or any firm of which any director is a member, or any corporation of which any director is a shareholder, officer or director, is a party to, or may be pecuniarily or otherwise interested in, such contract or transaction; provided that the fact that he individually, or such firm or corporation, is so interested shall be disclosed to the Board of Directors at the meeting at which (or prior to the directors' executing their written consents by which) action to authorize, ratify or approve such contract or transaction shall be taken. Any director of the corporation may vote upon or give his written consent to any contract or other person, firm or corporation without regard to the fact that he is also a director or officer of such other person, firm or corporation or a subsidiary or affiliated corporation thereof; e. Each director and officer of the corporation shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account of the corporation, reports made to the corporation by any of its officers or employees or by counsel, accountants, appraisers or other experts or consultants selected with reasonable care by the directors, or upon other records of the corporation; f. In furtherance and not in limitation of the powers enumerated in this Article 6, the corporation shall have as additional powers all purposes granted and allowed by the laws of the Commonwealth of Massachusetts of the General Laws of Massachusetts to business corporations organized under Chapter 156B of the General Laws of Massachusetts, provided that no such power shall be exercised in a manner inconsistent with such Chapter 156B or any other applicable provision of the General Laws of Massachusetts. 7. By-laws of the corporation have been duly adopted and the initial directors, president, treasurer and clerk, whose names are set out below, have been duly elected. 8. The effective date of organization of the corporation shall be the date of filing with the Secretary of the Commonwealth or if later date is desired, specify date, (not more than 30 days after the date of filing.) 9. The following information shall not for any purpose be treated as a permanent part of the Articles of Organization of the corporation. a. The POST OFFICE ADDRESS of the INITIAL PRINCIPAL OFFICE of the corporation of Massachusetts is: 27 State Street, Boston, Massachusetts 02109 b. The name, residence and post office address of each of the initial directors and following officers of the corporation are as follows: NAME RESIDENCE POST OFFICE ADDRESS President John Saynor 77 Franklin Street Boston, MA 02110 Treasurer: John Saynor Same as Above Clerk: Garry B. Watzke 77 Franklin Street Boston, MA 02110 Directors: John Saynor Same as Above Vincent J. Ryan 77 Franklin Street Boston, MA 02110 C. Richard Reese 77 Franklin Street Boston, MA 02110 c. The date initially adopted on which the corporation's fiscal year end is: December 31 d. The date initially fixed in the by-laws for the annual meeting of stockholders of the corporation is: Third Wednesday in April e. The name and business address of the resident agent, if any, of the corporation is: None IN WITNESS WHEREOF and under the penalties of perjury the INCORPORATOR(S) sign(s) these Articles of Organization this 15th day of September 1986 /s/ Garry B. Watzke ------------------------------------ Garry B. Watzke ------------------------------------ ------------------------------------ The signature of each incorporator which is not a natural person must be an individual who shall show the capacity in which he acts and by signing shall represent under the penalties of perjury that he is duly authorized on its behalf to sign these Articles of Organization. THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF ORGANIZATION GENERAL LAWS, CHAPTER 156B, SECTION 12 ------------------------------------------------- I hereby certify that, upon an examination of the within-written articles of organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and I hereby approve said articles; and the filing fee in the amount of $150 having been paid, said articles are deemed to have been filed with me this 16th day of September, 1986 Effective date /s/ Michael J. Connolly MICHAEL JOSEPH CONNOLLY Secretary of State PHOTOCOPY OF SAID ARTICLES OF ORGANIZATION TO BE SENT TO BE FILLED IN BY CORPORATION TO: Garry B. Watke 77 Franklin Street Boston, MA 02110 (617) 357-9031 Telephone FILING FEE: 1/20 of 1% of the total amount of the authorized capital stock with par value, and one cent a share for all authorized shares without par value, but not less than $150 General Laws, Chapter 156B. Shares of stock with a par value less than one dollar shall be deemed to have par value of one dollar per share. FEDERAL IDENTIFICATION NO.___________________ THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108-1512 CERTIFICATE OF APPOINTMENT OF RESIDENT AGENT (General Laws, Chapter 156B, Section 49) I, Olga Garcia-Rey , Assistant Clerk ------------------------------------------------------------ of Arch Connecticut Valley, Inc. ----------------------------------------------------------------------------- (Exact name of corporation) having a principal office at 1800 West Park Drive, Suite 250, Westborough, MA 01581 - -------------------------------------------------------------------------------- (Street address of corporation in Massachusetts) certify that pursuant to General Laws, Chapter 156B, Section 49, said corporation has appointed the following *individual/* corporation as its resident agent, to be its true and lawful attorney upon whom all lawful processes in any action or proceeding against it may be served: C. Edward Baker - -------------------------------------------------------------------------------- (Exact name of *individual/ *corporation) of c/o Arch Communications Group, Inc., 1800 West Park Drive, Suite 250, Westborough, MA 01581 - -------------------------------------------------------------------------------- (Business and residential address if individual / business address if corporation) Boston, Massachusetts 02110 - -------------------------------------------------------------------------------- **I further certify that the following is a true copy of the vote of the directors, duly adopted appointing said resident agent: UNANIMOUS and that to the best of my knowledge and belief, the residential and business addresses stated above are those of such resident agent on date hereof. SIGNED UNDER THE PENALTIES OF PERJURY, this 21 day of August , 2000, ------ ---------- /s/ Olga Garcia-Rey , Assistant Clerk. - -------------------------------------------------------------- *Delete the inapplicable words. **Indicate the complete tally of the vote of the directors, duly adopted, appointing said resident agent EX-99.(T3A)(18) 7 b42413a1ex99-t3a18.txt CERTIFICATE OF INCORPORATION BENBOW INVESTMENTS Exhibit T3A-18 CERTIFICATE OF INCORPORATION OF BENBOW INVESTMENTS, INC. FIRST. The name of the Corporation is: Benbow Investments, Inc. SECOND. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD. The nature of the business or purposes to be conducted or promoted by the Corporation is as follows: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, $.01 par value per share. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of Delaware. FIFTH. The name and mailing address of the sole incorporator are as follows:
NAME MAILING ADRESS ---- -------------- J. Roy Pottle 1800 West Park Drive Suite 250 Westborough, MA 01581
SIXTH. In furtherance of and not in limitation of powers conferred by statute, it is further provided: 1. Election of directors need not be by written ballot. 2. The Board of Directors is expressly authorized to adopt, amend or repeal the By-Laws of the Corporation. SEVENTH. Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. EIGHTH. The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify each 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 he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an "Indemnitee"), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of an Indemnitee in connection with such action, suit or proceeding and any appeal therefrom. As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. In the event that the Corporation does not assume the defense of any action, suit, proceeding or investigation of which the Corporation receives notice under this Article, the Corporation shall pay in advance of the final disposition of such matter any expenses (including attorneys' fees) incurred by an Indemnitee in defending a -2- civil or criminal action, suit, proceeding or investigation or any appeal therefrom; PROVIDED, HOWEVER, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article, which undertaking shall be accepted without reference to the financial ability of the Indemnitee to make such repayment; and FURTHER PROVIDED that no such advancement of expenses shall be made if it is determined that (i) the Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, the Indemnitee had reasonable cause to believe his conduct was unlawful. The Corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation. In addition, the Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund such indemnification payments to the Corporation to the extent of such insurance reimbursement. All determinations hereunder as to the entitlement of an Indemnitee to indemnification or advancement of expenses shall be made in each instance by (a) a majority vote of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question ("disinterested directors"), whether or not a quorum, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (c) independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation), or (d) a court of competent jurisdiction. The indemnification rights provided in this Article (i) shall not be deemed exclusive of any other rights to which an Indemnitee may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of the Indemnitees. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article. -3- NINTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation. EXECUTED at Boston, on June 29, 1998. /s/ J. Roy Pottle ---------------------------------------- J. Roy Pottle Sole Incorporator -4- CERTIFICATE OF MERGER OF THE WESTLINK COMPANY II (A DELAWARE CORPORATION) INTO BENBOW INVESTMENTS, INC. (A DELAWARE CORPORATION) Benbow Investments, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify: FIRST: That the name and state of incorporation of each of the constituent corporations of the merger is as follows:
Name State of Incorporation ---- ---------------------- Benbow Investments, Inc. Delaware The Westlink Company II Delaware
SECOND: That an Agreement and Plan of Merger between the parties to the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Subsection (c) of Section 251 of the General Corporation Law of the State of Delaware. THIRD: That the name of the surviving corporation of the merger is Benbow Investments, Inc. FOURTH: That the Certificate of Incorporation of Benbow Investments, Inc., a Delaware corporation which will survive the merger, shall be the Certificate of Incorporation of the surviving corporation. FIFTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving corporation. The address of said principal place of business is 1800 West Park Drive, Suite 250, Westborough, MA 01581. SIXTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation upon request and without cost to any stockholder of any constituent corporation. SEVENTH: That this Certificate of Merger shall be effective upon filing. IN WITNESS WHEREOF, Benbow Investments, Inc. has caused this Certificate to be executed by its Chief Executive Officer this 29th day of June, 1998. BENBOW INVESTMENTS, INC. (a Delaware corporation) By: /s/ C. Edward Baker, Jr. ------------------------------------ C. Edward Baker, Jr. Chief Executive Officer -2- EX-99.(T3A)(19) 8 b42413a1ex99-t3a19.txt CERT OF INCORP MOBILE MEDIA COMMUNICATIONS, INC. Exhibit T3A-19 CERTIFICATE OF INCORPORATION OF Farm Team, Inc. FIRST. The name of the Corporation is: Farm Team, Inc. SECOND. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD. The nature of the business or purposes to be conducted or promoted by the Corporation is as follows: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, $0.01 par value per share. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of Delaware. FIFTH. The name and mailing address of the sole incorporator are as follows: NAME MAILING ADDRESS ---- --------------- C. Edward Baker, Jr. 1800 West Park Drive Suite 250 Westborough, MA 01581 SIXTH. In furtherance of and not in limitation of powers conferred by statute, it is further provided: 1. Election of directors need not be by written ballot. 2. The Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation. SEVENTH. Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. EIGHTH. The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify each 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 he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an "Indemnitee"), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of an Indemnitee in connection with such action, suit or proceeding and any appeal therefrom. As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. In the event that the Corporation does not assume the defense of any action, suit, proceeding or investigation of which the Corporation receives notice under this Article, the Corporation shall pay in advance of the final disposition of such matter any expenses (including attorneys' fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom; PROVIDED, HOWEVER, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article, which undertaking shall be accepted without reference to the financial ability of the Indemnitee to make such repayment; and FURTHER PROVIDED that no such advancement of expenses shall be made if it is determined that (i) the Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, the Indemnitee had reasonable cause to believe his conduct was unlawful. The Corporation shall not indemnify an Indemnitee, seeking indemnification in connection with a proceeding (or part thereof) initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation. In addition, the Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund such indemnification payments to the Corporation to the extent of such insurance reimbursement. All determinations hereunder as to the entitlement of an Indemnitee to indemnification or advancement of expenses shall be made in each instance by (a) a majority vote of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question ("disinterested directors"), whether or not a quorum, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (c) independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation), or (d) a court of competent jurisdiction. The indemnification rights provided in this Article (i) shall not be deemed exclusive of any other rights to which an Indemnitee may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of the Indemnitees. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article. NINTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation. EXECUTED at Westborough, Massachusetts, on August 12, 1998. /s/ C. Edward Baker, Jr. ------------------------------------ C. Edward Baker, Jr. Sole Incorporator CERTIFICATE OF CORRECTION OF FARM TEAM, INC. Pursuant to Section 103(f) of the General Corporation Law of the State of Delaware The undersigned hereby certifies that: 1. The name of the corporation as set forth in the Certificate of Incorporation dated August 12, 1998 is Farm Team, Inc. (the "Corporation"). 2. The Certificate of Incorporation of the Corporation, which was filed with the Secretary of State of the State of Delaware on August 12, 1998 (the "Certificate of Incorporation"), was inaccurate in one respect and is hereby corrected. 3. The inaccuracy consisted of the inadvertent misrepresentation of the Corporation's name in Article FIRST of the Certificate of Incorporation. Set forth below in its entirety is Article FIRST of the Certificate of Incorporation in corrected form: FIRST: The name of the Corporation is: Farm Team Corp. IN WITNESS WHEREOF, the Corporation has caused this Certificate of Correction to be signed by its Chief Executive Officer on the 20th day of August, 1998. FARM TEAM, INC. By: /s/ C. Edward Baker, Jr. -------------------------------- C. Edward Baker, Jr. Chief Executive Officer CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF FARM TEAM CORP. Pursuant to Section 242 of the General Corporation Law of the State of Delaware FARM TEAM CORP. (hereinafter called the "Corporation"), organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify as follows: The Board of Directors of the Corporation duly adopted a resolution pursuant to Sections 141 and 242 of the General Corporation Law of the State of Delaware, setting forth an amendment to the Certificate of Incorporation of the Corporation and declaring said amendment to be advisable. The stockholder of the Corporation duly approved said proposed amendment by written consent in accordance with Sections 228 and 242 of the General Corporation Law of the State of Delaware. The resolution setting forth the amendment is as follows: RESOLVED: That the Board of Directors deems it advisable and in the best interests of the Corporation to amend the Certificate of Incorporation and that Article FOURTH of the Certificate of Incorporation of the Corporation be and hereby is amended by adding the following language to the end of Article FOURTH: "Notwithstanding any other provision herein, the Corporation shall not issue any non-voting equity securities" IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its President this 21st day of May, 1999. FARM TEAM CORP. By: /s/ Lyndon Daniels ----------------------------- President Lyndon Daniels CERTIFICATE OF MERGER OF MOBILEMEDIA COMMUNICATIONS, INC (a Delaware corporation) INTO FARM TEAM CORP. (a Delaware corporation) Farm Team Corp., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "DGCL"), does hereby certify: FIRST: That the name and state of incorporation of each of the constituent corporations of the merger is as follows: NAME STATE OF INCORPORATION ---- ---------------------- MobileMedia Communications, Inc. Delaware Farm Team Corp. Delaware SECOND: That an Agreement and Plan of Merger between the parties to the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Subsection (c) of Section 251 of the General Corporation Law of the State of Delaware. THIRD: That the surviving corporation of the merger is Farm Team Corp. FOURTH: That the Certificate of Incorporation of Farm Team Corp. shall be the Certificate of Incorporation of the surviving corporation, except that the name of the corporation shall be MobileMedia Communications, Inc. FIFTH: That the bylaws of Farm Team Corp. shall be the bylaws of the surviving corporation, except that the name of the corporation shall be MobileMedia Communications, Inc. SIXTH: That the directors of Farm Team Corp. shall be the directors of the surviving corporation. SEVENTH: That the officers of Farm Team Corp. shall be the officers of the surviving corporation. EIGHTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving corporation. The address of said principal place of business is 1800 West Park Drive, Suite 250, Westborough, MA 01581. NINTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation upon request and without cost to any stockholder of any constituent corporation. TENTH: That, pursuant to Section 303(c) of the DGCL, provision for the making of this Certificate of Merger is contained in an order of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of MobileMedia Communications, Inc. TENTH: That this Certificate of Merger shall be effective upon the filing hereof with the Secretary of State of the State of Delaware. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, Farm Team Corp. has caused this Certificate to be executed by its Chairman of the Board and Chief Executive Officer and attested by its Secretary this 3rd day of June, 1999. FARM TEAM CORP. (a Delaware corporation) By: /s/ C. Edward Baker, Jr. ---------------------------- C. Edward Baker, Jr. Chairman of the Board and Chief Executive Officer Dated: June 3, 1999 ATTEST: /s/ Gary B. Watzke - --------------------------- Gary B. Watzke Secretary EX-99.(T3A)(20) 9 b42413a1ex99-t3a20.txt CERT OF INCORP MOBILEMEDIA COMM OF AMERICA Exhibit T3A-20 CERTIFICATE OF INCORPORATION OF MOBILE COMMUNICATIONS CORPORATION OF AMERICA FIRST: The name of the Corporation is Mobile Communications Corporation of America. SECOND: The address of the Corporation's registered office in the State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such address is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, par value $1.00 per share. FIFTH: The name and mailing address of the incorporator of the Corporation is as follows: NAME ADDRESS ---- ------- J. Kelly Hoey c/o Sidley & Austin 875 Third Avenue New York, New York 10022 SIXTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the By-laws of the Corporation, subject to any specific limitation on such power provided by any By-laws of the Corporation. SEVENTH: Elections of directors need not be by written ballot unless the By-laws of the Corporation so provide. EIGHTH: The number of directors shall be fixed in the manner provided in the By-laws of the Corporation. NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this reservation. TENTH: (a) A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of such director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware or (iv) for any transaction from which such director derived an improper personal benefit. If the General Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended. (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that such person 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 another corporation, partnership, joint venture, employee benefit plan, trust 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 fullest extent authorized by the General Corporation Law of the State of Delaware as it may be in effect from time to time and the Corporation may adopt by-laws or enter into agreements with any such person for the purposes of providing for such indemnification. THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, makes this Certificate, hereby declaring and certifying that the facts herein stated are true, and accordingly has hereunto set his hand this 10th day of November, 1998. /s/ J. Kelly Hoey ----------------------------------- J. Kelly Hoey Sole Incorporator CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OR MOBILE COMMUNICATIONS CORPORATION OF AMERICA Pursuant to Section 242 of the General Corporation Law of the State of Delaware MOBILE COMMUNICATIONS CORPORATION OF AMERICA (hereinafter called the "Corporation"), organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify as follows: The Board of Directors of the Corporation duly adopted a resolution pursuant to Sections 141 and 242 of the General Corporation Law of the State of Delaware, setting forth an amendment to the Certificate of Incorporation of the Corporation and declaring said amendment to be advisable. The stockholder of the Corporation duly approved said proposed amendment by written consent in accordance with Sections 228 and 242 of the General Corporation Law of the State of Delaware. The resolution setting forth the amendment is as follows: RESOLVED: That the Board of Directors deems it advisable and in the best interests of the Corporation to amend the Certificate of Incorporation and that Article FOURTH of the Certificate of Incorporation of the Corporation be and hereby is amended by adding the following language to the end of Article FOURTH: "Notwithstanding any other provision herein, the Corporation shall not issue any non-voting equity securities." IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its Chairman - Restructuring this 2nd day of June, 1999. MOBILE COMMUNICATIONS CORPORATION OF AMERICA By: /s/ Joseph Bondi -------------------------------- Chairman - Restructuring Joseph Bondi -2- CERTIFICATE OF MERGER OF MOBILE COMMUNICATIONS CORPORATION OF AMERICA (A MISSISSIPPI CORPORATION) INTO MOBILE COMMUNICATIONS CORPORATION OF AMERICA (A DELAWARE CORPORATION) Mobile Communications Corporation of America, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware ("DGCL"), does hereby certify: FIRST: That the name and state of incorporation of each of the constituent corporations of the merger is as follows: NAME STATE OF INCORPORATION ---- ---------------------- Mobile Communications Mississippi Corporation of America Mobile Communications Delaware Corporation of America SECOND: That an Agreement and Plan of Merger between the parties to the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Subsection (c) of Section 252 of the General Corporation Law of the State of Delaware. THIRD: That the name of the surviving corporation of the merger is Mobile Communications Corporation of America, a Delaware corporation. FOURTH: That the Certificate of Incorporation of Mobile Communications Corporation of America, a Delaware corporation which will survive the merger ("MCCA (DE)"), shall be the Certificate of Incorporation of the surviving corporation. FIFTH: That the By-Laws of MCCA (DE) shall be the By-Laws of the surviving corporation. SIXTH: That the director of MCCA (DE) shall be the director of the surviving corporation. SEVENTH: That the officers of MCCA (DE) shall be the officers of the surviving corporation. FIFTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving corporation. The address of said principal place of business is 1800 West Park Drive, Suite 1800, Westborough, Massachusetts 01581. SIXTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation upon request and without cost to any stockholder of any constituent corporation SEVENTH: That, immediately prior to the effectiveness of this Certificate of Merger, the total number of shares of all classes of capital stock which Mobile Communications Corporation of America, a Mississippi corporation, is authorized to issue is 2,500 shares of Common Stock, no par value per share. EIGHTH: That, pursuant to Section 303(c) of the DGCL, provision for the making of this Certificate of Merger is contained in an order of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of Mobile Communications Corporation of America, a corporation organized and existing under and by virtue of the Mississippi Business Corporation Act. NINTH: That this Certificate of Merger shall be effective upon the filing hereof with the Secretary of State of the State of Delaware. [Remainder of Page Intentionally Left Blank) -2- IN WITNESS WHEREOF, Mobile Communications Corporation of America has caused this Certificate of Merger to be executed by its Executive Vice President and Chief Financial Officer this 3rd day of June, 1999. MOBILE COMMUNICATIONS CORPORATION OF AMERICA (a Delaware corporation) By: /s/ J. Roy Pottle -------------------------------- J. Roy Pottle Executive Vice President and Chief Financial Officer -3- CERTIFICATE OF OWNERSHIP AND MERGER MERGING MOBILECOMM OF FLORIDA, INC. (A FLORIDA CORPORATION) MOBILECOMM OF TENNESSEE, INC. (A TENNESSEE CORPORATION) MOBILECOMM OF THE MIDSOUTH, INC. (A MISSOURI CORPORATION) MOBILECOMM NATIONWIDE OPERATIONS, INC. (A DELAWARE CORPORATION) MOBILECOMM OF THE SOUTHEAST, INC. (A DELAWARE CORPORATION) MOBILECOMM OF THE SOUTHEAST, INC. (A VIRGINIA CORPORATION) MOBILECOMM OF THE NORTHEAST, INC. (A DELAWARE CORPORATION) MOBILECOMM OF THE SOUTHEAST PRIVATE CARRIER OPERATIONS, INC. (A GEORGIA CORPORATION) MOBILECOMM OF THE SOUTHWEST, INC. (A TEXAS CORPORATION) INTO MOBILE COMMUNICATIONS CORPORATION OF AMERICA (A DELAWARE CORPORATION) Mobile Communications Corporation of America, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "DGCL") (the "Corporation"), does hereby certify: FIRST: That the Corporation was incorporated on the 12th day of November, 1998, pursuant to the General Corporation Law of the State of Delaware. SECOND: That the Corporation owns all of the outstanding shares of each class of stock of the following corporations (collectively, the "Merging Corporations"): Jurisdiction of Date of Name Incorporation Incorporation - ---- ------------- ------------- MobileComm of Florida, Inc. Florida August 31, 1965 MobileComm of Tennessee, Inc. Tennessee September 16, 1992 MobileComm of the Midsouth, Inc. Missouri November 4, 1974 MobileComm Nationwide Delaware September 3, 1992 Operations, Inc. MobileComm of the Southeast, Inc. Delaware September 3, 1992 MobileComm of the Southeast, Inc. Virginia July 2, 1993 MobileComm of the Northeast, Inc. Delaware August 12, 1992 MobileComm of the Southeast Georgia October 5, 1981 Private Carrier Operations, Inc. MobileComm of the Southwest, Texas January 3, 1966 Inc. THIRD: That the Sole Director of the Corporation duly adopted the following resolutions on the 2nd day of June, 1999. RESOLVED: That, pursuant to Section 253 of the General Corporation Law of the State of Delaware, Section 607.227 of the Florida General Corporation Act, Section 48-21-105 of the Tennessee Business Corporation Act, Section 351.447 of The General and Business Corporation Law of Missouri, Section 13.1-719 of the Virginia Stock Corporation Act, Section 14-2-1104 of the Georgia Business Corporation Code and Section 5.16 of the Texas Business Corporation Act, the Corporation is hereby authorized to merge -2- MobileComm of Florida, Inc., a Florida corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Florida"), MobileComm of Tennessee, Inc., a Tennessee corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Tennessee"), MobileComm of the Midsouth, Inc., a Missouri corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Midsouth"), MobileComm Nationwide Operations, Inc., a Delaware corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Nationwide"), MobileComm of the Southeast, Inc., a Delaware corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Southeast (DE)"), MobileComm of the Southeast, Inc., a Virginia corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Southeast (VA)"), MobileComm of the Northeast, Inc., a Delaware corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Northeast"), MobileComm of the Southeast Private Carrier Operations, Inc., a Georgia corporation which is a wholly owned subsidiary of the Corporation ("Private Carrier") and MobileComm of the Southwest, Inc., a Texas corporation which is a wholly owned subsidiary of the Corporation ("MobileComm Southwest") into the Corporation (collectively, the "Subsidiary Merger"); FURTHER RESOLVED: That the Corporation be and hereby is authorized to enter into, execute, deliver and perform (i) a Plan of Merger between the Corporation and MobileComm Florida, substantially in the form attached hereto as EXHIBIT B pursuant to which MobileComm Florida shall be merged with and into the Corporation with the Corporation as the surviving entity, (ii) a Plan of Merger between the Corporation and MobileComm Tennessee, substantially in the form attached hereto as EXHIBIT C pursuant to which MobileComm Tennessee shall be merged with and into the Corporation with the Corporation as the surviving entity; (iii) a Plan of Merger between the -3- Corporation and MobileComm Midsouth, substantially in the form attached hereto as EXHIBIT D pursuant to which MobileComm Midsouth shall be merged with and into the Corporation with the Corporation as the surviving entity; (iv) an Agreement and Plan of Merger between the Corporation and MobileComm Southeast (VA), substantially in the form attached hereto as EXHIBIT E pursuant to which MobileComm Southeast (VA) shall be merged with and into the Corporation with the Corporation as the surviving entity; (v) an Agreement and Plan of Merger between the Corporation and Private Carrier, substantially in the form attached hereto as EXHIBIT F pursuant to which Private Carrier shall be merged with and into the Corporation with the Corporation as the surviving entity; (vi) an Agreement and Plan of Merger between the Corporation and MobileComm Southwest, substantially in the form attached hereto as EXHIBIT G pursuant to which MobileComm Southwest shall be merged with and into the Corporation with the Corporation as the surviving entity (collectively, the "Subsidiary Plans of Merger"); that the terms and provisions of, and all transactions contemplated by, the Subsidiary Plans of Merger are hereby authorized and approved; and that the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to negotiate, execute and deliver the Subsidiary Plans of Merger, with such changes and additions therein as the Authorized Officers or Authorized Officer so acting, in their or his sole discretion, shall deem necessary or appropriate, the execution and delivery thereof to be conclusive evidence of the due authorization and approval by the Sole Director of such Subsidiary Plans of Merger and such changes and additions. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to enter into, execute, deliver and perform such other agreements, documents, certificates and instruments and to take -4- such other actions contemplated by the Subsidiary Plans of Merger which such Authorized Officer or Authorized Officers shall deem necessary, desirable or appropriate to effect the transactions described in, and to carry out the intent of, the Subsidiary Plans of Merger, the execution and delivery thereof and the taking of such actions to be conclusive evidence of such approval and the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Sole Director hereby determines that the Subsidiary Plans of Merger and the Subsidiary Merger are advisable and in the best interests of the Corporation and its stockholders. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute Florida Articles of Merger (the "Florida Articles of Merger") providing for the Subsidiary Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Florida Articles of Merger with the Office of the Secretary of State of the State of Florida, the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute Tennessee Articles of Merger (the "Tennessee Articles of Merger") providing for the Subsidiary Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Tennessee Articles of Merger with the Office of the Secretary of State of the State of Tennessee, the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. -5- FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute Virginia Articles of Merger (the "Virginia Articles of Merger") providing for the Subsidiary Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Virginia Articles of Merger with the Office of the Secretary of State of the State of Virginia, the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute Missouri Articles of Merger (the "Missouri Articles of Merger") providing for the Subsidiary Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Missouri Articles of Merger with the Office of the Secretary of State of the State of Missouri (the "Missouri Secretary"), the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute Georgia Articles of Merger (the "Georgia Articles of Merger") providing for the Subsidiary Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Georgia Articles of Merger with the Office of the Secretary of State of the State of Georgia, the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute Texas -6- Articles of Merger (the "Texas Articles of Merger") providing for the Subsidiary Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Texas Articles of Merger with the Office of the Secretary of State of the State of Texas, the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute a Delaware Certificate of Ownership and Merger (the "Delaware Certificate of Merger") providing for the Subsidiary Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Delaware Certificate of Merger with the Office of the Secretary of State of the State of Delaware (the "Delaware Secretary"), the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Corporation shall assume all the obligations of MobileComm Florida, MobileComm Tennessee, MobileComm Midsouth, MobileComm Nationwide, MobileComm Southeast (DE), MobileComm Southeast (VA), MobileComm Private Carrier and MobileComm Southwest. FURTHER RESOLVED: That the Subsidiary Merger shall be effective upon filing of the Delaware Certificate of Merger with the Delaware Secretary. FOURTH: That the Certificate of Incorporation of the Corporation shall be the Certificate of Incorporation of the surviving corporation. FIFTH: That the By-Laws of the Corporation shall be the By Laws of the surviving corporation. SIXTH: That the director of the Corporation shall be the director of the surviving corporation. -7- SEVENTH: That the officers of the Corporation shall be the officers of the surviving corporation. EIGHTH: That, pursuant to Section 303(c) of the DGCL, provision for the making of this Certificate of Ownership and Merger is contained in an order of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of the Merging Corporations. NINTH: That this Certificate of Ownership and Merger shall be effective upon the filing hereof with the Secretary of State of the State of Delaware. [Remainder of Page Intentionally Left Blank] -8- IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be executed by its Executive Vice President and Chief Financial Officer this 3rd day of June, 1999. MOBILE COMMUNICATIONS CORPORATION OF AMERICA (a Delaware corporation) By: /s/ J. Roy Pottle ------------------------------------- J. Roy Pottle Executive Vice President and Chief Financial Officer -9- CERTIFICATE OF OWNERSHIP AND MERGER MERGING FWS Radio, Inc. (a Texas corporation) INTO Mobile Communications Corporation of America (a Delaware corporation) Mobile Communications Corporation of America, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: FIRST: That the Corporation was incorporated on the 12h day of November, 1998, pursuant to the General Corporation Law of the State of Delaware (the "DGCL"). SECOND: That the Corporation owns all of the outstanding shares of each class of stock of FWS Radio, Inc., a Texas corporation ("FWS"). THIRD: That the Sole Director of the Corporation duly adopted the following resolutions on the 3rd day of June, 1999: RESOLVED: That, pursuant to Section 253 of the General Corporation Law of the State of Delaware and Section 5.16 of the Texas Business Corporation Act, the Corporation is hereby authorized to merge FWS Radio, Inc., a Texas corporation which is a wholly owned subsidiary of the Corporation ("FWS") into the Corporation (the "FWS Merger"); FURTHER RESOLVED: That the Corporation be and hereby is authorized to enter into, execute, deliver and perform a Plan of Merger between the Corporation and FWS, substantially in the form attached hereto as EXHIBIT H (the "FWS Plan of Merger") pursuant to which FWS shall be merged with and into the Corporation with the Corporation as the surviving entity; that the terms and provisions of, and all transactions contemplated by, the FWS Plan of Merger are hereby authorized and approved; and that the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to negotiate, execute and deliver the FWS Plan of Merger, with such changes and additions therein as the Authorized Officers or Authorized Officer so acting, in their or his sole discretion, shall deem necessary or appropriate, the execution and delivery thereof to be conclusive evidence of the due authorization and approval by the Sole Director of such FWS Plan of Merger and such changes and additions. FURTHER RESOLVED: That the Authorized Officers of the Corporation be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to enter into, execute, deliver and perform such other agreements, documents, certificates and instruments and to take such other actions contemplated by the FWS Plan of Merger which such Authorized Officer or Authorized Officers shall deem necessary, desirable or appropriate to effect the transactions described in, and to carry out the intent of, the FWS Plan of Merger, the execution and delivery thereof and the taking of such actions to be conclusive evidence of such approval and the due authorization and approval of the Sole Director. FURTHER RESOLVED: That Sole Director hereby determines that the FWS Plan of Merger and the FWS Merger are advisable and in the best interests of the Corporation and its stockholders. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute Texas Articles of Merger (the "Texas Articles of Merger") providing for the FWS Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Texas Articles of Merger with the Office of the Secretary of State of the State of Texas, the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute a Delaware Certificate of Ownership and Merger (the "Delaware Certificate of Merger") providing for the FWS Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Delaware Certificate of Merger with the Office of the Secretary of State of the State of Delaware (the "Delaware Secretary"), the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the FWS Merger shall be effective upon the filing of the Delaware Certificate of Merger with the Delaware Secretary. FOURTH: That the Certificate of Incorporation of the Corporation shall be the Certificate of Incorporation of the surviving corporation. FIFTH: That the By-Laws of the Corporation shall be the By-Laws of the surviving corporation. SIXTH: That the director of the Corporation shall be the director of the surviving corporation. SEVENTH: That the officers of the Corporation shall be the officers of the surviving corporation. EIGHTH: That, pursuant to Section 303(c) of the DGCL, provision for the making of this Certificate of Ownership and Merger is contained in an order of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of FWS. NINTH: That this Certificate of Ownership and Merger shall be effective upon the filing hereof with the Secretary of State of the State of Delaware. IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be executed by its Executive Vice President and Chief Financial Officer this 3rd day of June, 1999. MOBILE COMMUNICATIONS CORPORATION OF AMERICA (a Delaware corporation) By: /s/ J. Roy Pottle -------------------------------- J. Roy Pottle Executive Vice President and Chief Financial Officer CERTIFICATE OF OWNERSHIP AND MERGER MERGING MobileComm of the West, Inc. (a California corporation) INTO Mobile Communications Corporation of America (a Delaware corporation) Mobile Communications Corporation of America, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: FIRST: That the Corporation was incorporated on the 12th day of November, 1998, pursuant to the General Corporation Law of the State of Delaware (the "DGCL"). SECOND: That the Corporation owns all of the outstanding shares of each class of stock of MobileComm of the West, Inc., a California corporation ("MobileComm West"). THIRD: That the Sole Director of the Corporation duly adopted the following resolutions on the 3rd day of June, 1999: RESOLVED: That, pursuant to Section 253 of the General Corporation Law of the State of Delaware and Section 1110 of the California General Corporation Law, the Corporation is hereby authorized to merge MobileComm of the West, Inc., a California corporation which is a wholly owned subsidiary of the Corporation ("MobileComm West") into the Corporation (the "MobileComm West Merger"); FURTHER RESOLVED: That the Corporation be and hereby is authorized to enter into, execute, deliver and perform a Plan of Merger between the Corporation and MobileComm West, substantially in the form attached hereto as EXHIBIT I (the "MobileComm West Plan of Merger") pursuant to which MobileComm West shall be merged with and into the Corporation with the Corporation as the surviving entity; that the terms and provisions of, and all transactions contemplated by, the MobileComm West Plan of Merger are hereby authorized and approved; and that the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to negotiate, execute and deliver the MobileComm West Plan of Merger, with such changes and additions therein as the Authorized Officers or Authorized Officer so acting, in their or his sole discretion, shall deem necessary or appropriate, the execution and delivery thereof to be conclusive evidence of the due authorization and approval by the Sole Director of such MobileComm West Plan of Merger and such changes and additions. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to enter into, execute, deliver and perform such other agreements, documents, certificates and instruments and to take such other actions contemplated by the MobileComm West Plan of Merger which such Authorized Officer or Officers shall deem necessary, desirable or appropriate to effect the transactions described in, and to carry out the intent of, the MobileComm West Plan of Merger, the execution and delivery thereof and the taking of such actions to be conclusive evidence of such approval and the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Sole Director hereby determines that the MobileComm West Plan of Merger and the MobileComm West Merger are advisable and in the best interests of the Corporation and its stockholders. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute California Articles of Merger (the "California Articles of Merger") providing for the MobileComm West Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the California Articles of Merger with the Office of the Secretary of State of the State of California, the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the Authorized Officers be, and each of them acting singly hereby is, authorized, in the name of and on behalf of the Corporation, to execute a Delaware Certificate of Ownership and Merger (the "Delaware Certificate of Merger") providing for the MobileComm West Merger; and that the Authorized Officers be, and each of them acting singly hereby is, authorized to file the Delaware Certificate of Merger with the Office of the Secretary of State of the State of Delaware (the "Delaware Secretary"), the filing thereof to be conclusive evidence of the due authorization and approval of the Sole Director. FURTHER RESOLVED: That the MobileComm West Merger shall be effective upon the filing of the Delaware Certificate of Merger with the Delaware Secretary. FOURTH: That the Certificate of Incorporation of the Corporation shall be the Certificate of Incorporation of the surviving corporation. FIFTH: That the By-Laws of the Corporation shall be the By-Laws of the surviving corporation. SIXTH: That the director of the Corporation shall be the director of the surviving corporation. SEVENTH: That the officers of the Corporation shall be the officers of the surviving corporation. EIGHTH: That, pursuant to Section 303(c) of the DGCL, provision for the making of this Certificate of Ownership and Merger is contained in an order of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of MobileComm West. NINTH: That this Certificate of Ownership and Merger shall be effective upon the filing hereof with the Secretary of State of the State of Delaware. IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be executed by its Executive Vice President and Chief Financial Officer this 3rd day of June, 1999. MOBILE COMMUNICATIONS CORPORATION OF AMERICA (a Delaware corporation) By: /s/ J. Roy Pottle -------------------------------- J. Roy Pottle Executive Vice President and Chief Financial Officer CERTIFICATE OF MERGER OF DIAL PAGE SOUTHEAST, INC. (a Delaware corporation) MOBILEMEDIA COMMUNICATIONS, INC. (CALIFORNIA) (a California corporation) MOBILEMEDIA DP PROPERTIES, INC. (a Delaware corporation) MOBILEMEDIA PAGING, INC. (a Delaware corporation) MOBILEMEDIA PCS, INC. (a Delaware corporation) RADIO CALL COMPANY OF VA., INC. (a Virginia corporation) INTO MOBILE COMMUNICATIONS CORPORATION OF AMERICA (a Delaware corporation) Mobile Communications Corporation of America, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "DGCL") (the "Corporation"), does hereby certify: FIRST: That the name and jurisdiction of incorporation of each of the constituent corporations of the merger (collectively, the "Constituent Corporations") is as follows: Jurisdiction of Name Incorporation ---- --------------- Dial Page Southeast, Inc. Delaware MobileMedia Communications, Inc. (California) California MobileMedia DP Properties, Inc. Delaware MobileMedia Paging, Inc. Delaware MobileMedia PCS, Inc. Delaware Radio Call Company of Va., Inc. Virginia Mobile Communications Corporation of America Delaware SECOND: That an Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with the requirements of Section 1110 of the California General Corporation Law, Section 13.1-719 of the Virginia Stock Corporation Act and Section 252 of the General Corporation Law of the State of Delaware. THIRD: That the name of the surviving corporation of the merger is Mobile Communications Corporation of America. FOURTH: That the Certificate of Incorporation of the Corporation shall be the Certificate of Incorporation of the surviving corporation. FIFTH: That the By-Laws of the Corporation shall be the By-Laws of the surviving corporation. SIXTH: That the director of the Corporation shall be the director of the surviving corporation. SEVENTH: That the officers of the Corporation shall be the officers of the surviving corporation. EIGHTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving corporation. The address of said principal place of business is 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581. NINTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation upon request and without cost to any stockholder of any other Constituent Corporation or to any member of the surviving corporation. TENTH: That the authorized capital stock of each Constituent Corporation is as follows:
Number of Corporation Class Shares Par Value - ----------- ----- --------- --------- Dial Page Southeast, Inc. Common 3,000 $ 0.01 MobileMedia Communications, Inc. Common 1 $ 1.00 (California) MobileMedia DP Properties, Inc. Common 1,000 $ 0.01 MobileMedia Paging, Inc. Common 1,000 $ 0.001 MobileMedia PCS, Inc. Common 1,000 $ 0.001 Mobile Communications Common 1,000 $ 1.00 Corporation of America Radio Call Company of Va., Inc. Common 50 $100.00
ELEVENTH: That, pursuant to Section 303(c) of the DGCL, provision for the making of this Certificate of Merger is contained in an order of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of the Constituent Corporations (other than the Corporation). TWELFTH: That this Certificate of Merger shall be effective upon the filing hereof with the Secretary of State of the State of Delaware. [Remainder of Page Intentionally Left Blank) IN WITNESS WHEREOF, Mobile Communications Corporation of America has caused this Certificate of Merger to be executed by its Executive Vice President and Chief Financial Officer this 3rd day of June, 1999. MOBILE COMMUNICATIONS CORPORATION OF AMERICA (a Delaware corporation) By: /s/ J. Roy Pottle --------------------------------- J. Roy Pottle Executive Vice President and Chief Financial Officer CERTIFICATE OF CHANGE OF REGISTERED AGENT AND REGISTERED OFFICE * * * * * Mobile Communications Corporation of America, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: The present registered agent of the corporation is Corporation Service Company and the present registered office of the corporation is in the county of New Castle. The Board of Directors of Mobile Communications Corporation of America adopted the following resolution on the Resolved, that the registered office of Mobile Communications Corporation of America in the state of Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, and the authorization of the present registered agent of this corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby constituted and appointed the registered agent of this corporation at the address of its registered office. IN WITNESS WHEREOF, Mobile Communications Corporation of America has caused this statement to be signed by VP dated this 15 day of Nov, 1999 /s/ Kristen Betzger --------------------------------- KRISTEN BETZGER, VICE PRESIDENT EX-99.(T3A)(21) 10 b42413a1ex99-t3a21.txt CERT OF INCORPORATION PAGING NETWORK, INC. Exhibit T3A-21 CERTIFICATE OF MERGER OF ST. LOUIS ACQUISITION CORP. (A DELAWARE CORPORATION) INTO PAGING NETWORK, INC. (A DELAWARE CORPORATION) Paging Network, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify: FIRST: That the name and state of incorporation of each of the constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION ---- ---------------------- Paging Network, Inc. Delaware St. Louis Acquisition Corp. Delaware
SECOND: That an Agreement and Plan of Merger between the parties to the merger has been approved, adopted, certified, executed and acknowledged by St. Louis Acquisition Corp. in accordance with the requirements of Subsection (c) of Section 251 of the General Corporation Law of the State of Delaware and by Paging Network, Inc. in accordance with Section 303 of the General Corporation Law of the State of Delaware. THIRD: That, pursuant to Section 303(c) of the General Corporation Law of the State of Delaware, provision for the making of this Certificate of Merger is contained in an order, dated October 26, 2000, of a court having jurisdiction of a proceeding under Chapter 11 of Title 11 of the United States Code for the reorganization of Paging Network, Inc. FOURTH: That the name of the surviving corporation of the merger is Paging Network, Inc. FIFTH: That the Certificate of Incorporation of Paging Network, Inc. shall be amended to read in its entirety as set forth in Exhibit A attached hereto and, as amended, shall be the Restated Certificate of Incorporation of the surviving corporation. SIXTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving corporation. The address of said principal place of business is 14911 Quorum Drive, Dallas, Texas 75240. SEVENTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation upon request and without cost to any stockholder of any constituent corporation. EIGHTH: That this Certificate of Merger shall be effective at 1:30 p.m. Eastern Standard Time on November 10, 2000. [Remainder of Page Intentionally Left Blank] -2- IN WITNESS WHEREOF, Paging Network, Inc. has caused this Certificate to be executed by its Chairman of the Board and Chief Executive Officer and attested by its Secretary this 9th day of November, 2000. PAGING NETWORK, INC. (a Delaware corporation) By: /s/ John P. Frazee, Jr. ------------------------------------ John P. Frazee, Jr. Chairman of the Board and Chief Executive Officer Dated: November 9, 2000 ATTEST: /s/ Julian B. Castelli - ------------------------------- Julian B. Castelli Secretary -3- EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION OF PAGING NETWORK, INC. FIRST. The name of the Corporation is: Paging Network, Inc. SECOND. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD. The nature of the business or purposes to be conducted or promoted by the Corporation is as follows: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, $0.01 par value per share. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of Delaware. FIFTH. In furtherance of and not in limitation of powers conferred by statute, it is further provided: 1. Election of directors need not be by written ballot. 2. The Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation. SIXTH. Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. - 1 - SEVENTH. The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify each 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 he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an "Indemnitee"), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of an Indemnitee in connection with such action, suit or proceeding and any appeal therefrom. As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. In the event that the Corporation does not assume the defense of any action, suit, proceeding or investigation of which the Corporation receives notice under this Article, the Corporation shall pay in advance of the final disposition of such matter any expenses (including attorneys' fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom; PROVIDED, HOWEVER, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article, which undertaking shall be accepted without reference to the financial ability of the Indemnitee to make such repayment; and FURTHER PROVIDED that no such advancement of expenses shall be made if it is determined that (i) the Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, the Indemnitee had reasonable cause to believe his conduct was unlawful. The Corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation. In addition, the Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund such indemnification payments to the Corporation to the extent of such insurance reimbursement. All determinations hereunder as to the entitlement of an Indemnitee to indemnification or advancement of expenses shall be made in each instance by (a) a majority vote of the directors of - 2 - the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question ("disinterested directors"), whether or not a quorum, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (c) independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation), or (d) a court of competent jurisdiction. The indemnification rights provided in this Article (i) shall not be deemed exclusive of any other rights to which an Indemnitee may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of the Indemnitees. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article. EIGHTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation. - 3 - EX-99.(T3A)(22) 11 b42413a1ex99-t3a22.txt CERTIFICATE OF INCORPORATION PAGENET, INC. Exhibit T3A-22 CERTIFICATE OF INCORPORATION OF PAGING NETWORK OF TENNESSEE, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is Paging Network of Tennessee, Inc. SECOND: The registered office of the corporation in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is 3,000 shares of Common Stock, $.01 par value per share. FIFTH: The name and mailing address of the incorporator is as follows: NAME MAILING ADDRESS Jane E. Pike Bingham, Dana & Gould 150 Federal Street Boston, MA 02110 SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders. (a) Directors need not be stockholders of the corporation. (b) Subject to any limitation contained in the by-laws, the board of directors may make by-laws, and from time to time may alter, amend or repeal any by-laws, but any by-laws made by the board of directors may be altered, amended or repealed by the stockholders at any meeting of stockholders by the affirmative vote of the holders of a -2- majority of the stock present and voting at such meeting, provided notice that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice of such meeting. (c) The board of directors shall have power from time to time to fix and determine and to vary the amount of the working capital of the corporation, to direct and determine the use and disposition thereof, to set apart out of any funds of the corporation available for dividends a reserve or reserves for any proper purposes and to abolish any such reserve in the manner in which it was created. (d) The board of directors may from time to time determine whether and to what extent and at which times and places and under what conditions and regulations the accounts and books of the corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, book or document of the corporation except as conferred by statute or as authorized by the board of directors. (e) No contract or other transaction 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 or other interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorized the contract or other transaction, or solely because his or their votes are counted for such purpose; provided that the material facts as to such relationship or interest and as to the contract or other transaction are disclosed or are known (1) to the board of directors or the committee, and the board or committee in good faith authorizes the contract or other transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (2) to the stockholders entitled to vote thereon, and the contract or other transaction is specifically approved in good faith by vote of the stockholders. (f) Any contract, act or transaction of the corporation or of the directors may be ratified by a vote of a majority of the shares having voting power at any meeting of stockholders, or at any special meeting called -3- for such purpose, and such ratification shall, so far as permitted by law and by this certificate of incorporation, be as valid and as binding as though ratified by every stockholder of the corporation. (g) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to (i) any agreements among and between stockholders, (ii) the rights of creditors and (iii) rights expressly provided for particular classes or series of stocks, for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (h) Elections of directors need not be by ballot. (i) The corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to be a director or officer of this corporation or while a director or officer is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement or incurred in connection with the investigation, preparation to defend or defense of such action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any by-law, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of -4- the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this Section (i) of Article SIXTH shall not adversely affect any right or protection of a director or officer of the corporation existing at the time of such repeal or modification. SEVENTH: No holder of stock of the corporation shall be entitled as of right to purchase or subscribe for any part of any unissued stock of the corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the corporation, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock or such additional authorized issue of new stock, but rather such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and disposed of pursuant to resolution of the board of directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the board of directors in the exercise of their discretion. EIGHTH: Meetings of stockholders may be held without the State of Delaware, if the by-laws so provide. The books of the corporation may be kept (subject to the provisions of the Delaware General Corporation Law) outside of the State of Delaware at such place or places as may be from time to time designated by the board of directors. NINTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 15th day of July, 1992. /s/ Jane E. Pike -------------------------- Jane E. Pike, Incorporator CERTIFICATE OF MERGER OF PAGING NETWORK OF MISSISSIPPI, INC. INTO PAGING NETWORK OF TENNESSEE, INC. -------------------------------- The undersigned corporation, Paging Network of Tennessee, Inc. DOES HEREBY CERTIFY: 1. That the names and states of incorporation of each of the constituent corporations of the merger are as follows: NAME STATE OF INCORPORATION ---- ---------------------- Paging Network of Mississippi, Inc. Delaware Paging Network of Tennessee, Inc. Delaware 2. That an Agreement of Merger between the parties of the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251 of the General Corporation Law of Delaware. 3. That the name of the surviving corporation of the merger is Paging Network of Tennessee, Inc. 4. That the Certificate of Incorporation of Paging Network of Tennessee, Inc., which is the surviving corporation, shall continue in full force and effect as the Certificate of Incorporation of the surviving corporation. 5. That the executed Agreement of Merger is on file at the principal place of business of the surviving corporation, the address of which is c/o Paging Network, Inc., 4965 Preston Park Boulevard, Suite 600, Plano, TX 75093. 6. That a copy of the Agreement of Merger will be furnished, on request and without cost, to any stockholder of the constituent corporation. 7. That this Certificate of Merger shall be effective at the close of business on the 31st day of December, 1994. -2- IN WITNESS WHEREOF, Paging Network of Tennessee, Inc. has caused this certificate to be signed by Terry L. Scott, its President, and attested by Roger D. Feldman, its Secretary, this 22nd day of December, 1994. PAGING NETWORK OF TENNESSEE, INC. By: /s/ Terry L. Scott ---------------------- Terry L. Scott President ATTEST: By: /s/ Roger D. Feldman ---------------------- Roger D. Feldman Secretary CERTIFICATE OF MERGER OF PAGING NETWORK-SOUTHEASTERN REGION, INC., PAGING NETWORK OF ATLANTA, INC., PAGING NETWORK OF FLORIDA, INC., PAGING NETWORK OF NORTH CAROLINA, INC., and PAGING NETWORK OF ORLANDO, INC., INTO PAGING NETWORK OF TENNESSEE, INC. --------------------------------- The undersigned corporation, Paging Network of Tennessee, Inc. DOES HEREBY CERTIFY: 1. That the names and states of incorporation of each of the constituent corporations of the merger are as follows: NAME STATE OF INCORPORATION ---- ---------------------- Paging Network-Southeastern Region, Inc. Delaware Paging Network of Atlanta, Inc. Delaware Paging Network of Florida, Inc. Delaware Paging Network of North Carolina, Inc. Delaware Paging Network of Orlando, Inc. Delaware Paging Network of Tennessee, Inc. Delaware 2. That an Agreement of Merger between the parties of the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251 of the General Corporation Law of Delaware. 3. That the name of the surviving corporation of the merger is Paging Network of Tennessee, Inc. -2- 4. That the Certificate of Incorporation of Paging Network of Tennessee, Inc., which is the surviving corporation, shall continue in full force and effect as the Certificate of Incorporation of the surviving corporation. 5. That the executed Agreement of Merger is on file at the principal place of business of the surviving corporation, the address of which is c/o Paging Network, Inc., 4965 Preston Park Boulevard, Suite 600, Plano, TX 75093. 6. That a copy of the Agreement of Merger will be furnished, on request and without cost, to any stockholder of the constituent corporation. 7. That this Certificate of Merger shall be effective at the close of business on the 28th day of December, 1996. IN WITNESS WHEREOF, Paging Network of Tennessee, Inc. has caused this certificate to be signed by Kenneth W. Sanders, its Senior Vice President- Finance, this 23rd day of December, 1996. PAGING NETWORK OF TENNESSEE, INC. By: /s/ Kenneth W. Sanders ---------------------------------- Kenneth W. Sanders, Senior Vice President-Finance CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF PAGING NETWORK OF TENNESSEE, INC. Pursuant to the provisions of Section 242 of the General Corporation Law of the State of Delaware, Paging Network of Tennessee, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: FIRST: That the Board of Directors of the Corporation, by unanimous consent pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, adopted a resolution setting forth and declaring advisable the following proposed amendment to the Certificate of Incorporation of the Corporation. That paragraph one should be amended to read in its entirety as follows: "FIRST: THE NAME OF THE CORPORATION SHALL BE PAGENET, INC." SECOND: That thereafter, pursuant to resolution of the Board of Directors, the proposed amendment was submitted to the stockholders of the Corporation, and the necessary number of shares as required by statute was voted in favor of the amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That this Certificate of Amendment shall be effective upon the filing hereof. IN WITNESS WHEREOF, the Corporation has caused this Amendment to its Certificate of Incorporation to be executed this 6th day of August, 1998. /s/ G. Robert Thompson ----------------------------------- G. Robert Thompson, Vice President AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), entered into on the 2nd day of December, 1998, is entered into by and among PageNet, Inc., a Delaware corporation ("PageNet"), and Paging Network of Washington, Inc., a Virginia corporation (the "Merging Corporation") to effect the merger of the Merging Corporation with and into PageNet (the "Merger") as provided herein. WITNESSETH: WHEREAS, Paging Network, Inc., a Delaware corporation and parent of PageNet and the Merging Corporation ("Parent") desires to consolidate certain of its operations; and WHEREAS, subject to and in accordance with the terms and conditions of this Agreement, the respective Boards of Directors of PageNet and the Merging Corporation have approved the Merger, whereby all the issued and outstanding shares of common stock of the Merging Corporation will be canceled; and WHEREAS, the parties hereto desire to set forth the terms of the Merger; NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and covenants herein contained, the parties hereto hereby agree as follows: ARTICLE 1 THE MERGER 1.1 THE MERGER. Subject to and in accordance with the terms and conditions of this Agreement and in accordance with the Delaware General Corporation Law (the "DGCL"), effective as of 11:59 p.m. Eastern Standard Time, December 31, 1998 (such date and time, the "Effective Time"), the Merging Corporation shall merge with and into PageNet. As a result of the Merger, the separate corporate existence of the Merging Corporation shall cease and PageNet, as the surviving corporation (sometimes referred to as the "Surviving Corporation" in such context), shall succeed to all the liabilities, rights, privileges, immunities, and franchises and all the property (real, personal, intellectual and other) of the Merging Corporation, without the necessity for separate transfer. PageNet shall thereafter be responsible and liable for all the obligations of the Merging Corporation, and neither the rights of the creditors nor any liens on the property of the Merging Corporation shall be impaired by the Merger. 1.2 EFFECTS OF THE MERGER. The Merger shall have the effects set forth in the applicable provisions of the DGCL. 1.3 CERTIFICATE OF INCORPORATION, BYLAWS. The Certificate of Incorporation (the "Certificate") and Bylaws (the "Bylaws") of PageNet, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation and Bylaws of the Surviving Corporation and thereafter shall continue to be its Certificate of Incorporation and Bylaws until amended as provided therein and under the DGCL. 1.4 DIRECTORS AND OFFICERS. The persons serving as directors and officers of PageNet immediately prior to the Effective Time shall be the directors and officers of the Surviving Corporation, each to hold office until their respective successors are duly elected or appointed and qualified in accordance with the Certificate and Bylaws. -1- 1.5 CONVERSION OF SECURITIES: EXCHANGE. Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, PageNet or the Merging Corporation: (a) Each share of the common stock of the Merging Corporation which is issued and outstanding immediately prior to the Effective Time shall be canceled, and certificates that, prior to the Effective Time of the Merger, represented shares of common stock of the Merging Corporation shall thereafter be deemed canceled. No shares of stock of PageNet will be issued pursuant to the Merger. (b) Each share of common stock of the Merging Corporation held in the treasury of any of the Merging Corporation immediately prior to the Effective Time, and all rights to acquire shares of common stock of the Merging Corporation, if any, shall be canceled and extinguished at the Effective Time without any conversion thereof and no payment shall be made with respect thereto. (c) Each share of the common stock of PageNet issued and outstanding immediately prior to the Effective Time shall at the Effective Time be converted into one (1) validly issued, fully paid and non-assessable share of the common stock of the Surviving Corporation. 1.6 TAKING OF NECESSARY ACTION; FURTHER ACTION. The parties hereto shall take all such reasonable and lawful action as may be necessary or appropriate in order to effectuate the Merger as promptly as possible. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Merging Corporation, such corporations shall direct their respective officers and directors to take, all such lawful and necessary action. 1.7 TERMINATION. At any time prior to the Effective Time, this Agreement may be terminated by the Board of Directors of PageNet notwithstanding approval of the agreement by the stockholders of all or any of the Merging Corporation or of PageNet. ARTICLE 2 MISCELLANEOUS 2.1 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one original. 2.2 SUCCESSORS AND ASSIGN. This Agreement and the rights, interests, and obligations hereunder shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 2.3 GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware (except the choice of law rules thereof). -2- IN WITNESS WHEREOF, the undersigned have each caused this Agreement and Plan of Merger to be executed on its behalf by its duly authorized officer on December 2, 1998 to be effective at the Effective Time. PAGENET, INC. By: /s/ J. Barry Duncan ------------------------------ J. Barry Duncan Vice President PAGING NETWORK OF WASHINGTON, INC. By: /s/ J. Barry Duncan ------------------------------- J. Barry Duncan Vice President The undersigned, as the duly authorized Secretary of PageNet and the Merging Corporation, hereby certifies that this Agreement and Plan of Merger was unanimously approved by the sole stockholder of PageNet and the Merging Corporation in accordance with applicable law. /s/ Ruth Williams ----------------------------------- Ruth Williams Secretary of PageNet and the Merging Corporation -3- AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), entered into on the 2nd day of December, 1998, is entered into by and among PageNet, Inc., a Delaware corporation ("PageNet"), and Paging Network of New York, Inc., a New York corporation (the "Merging Corporation") to effect the merger of the Merging Corporation with and into PageNet (the "Merger") as provided herein. WITNESSETH: WHEREAS, Paging Network, Inc., a Delaware corporation and parent of PageNet and the Merging Corporation ("Parent") desires to consolidate certain of its operations; and WHEREAS, subject to and in accordance with the terms and conditions of this Agreement, the respective Boards of Directors of PageNet and the Merging Corporation have approved the Merger, whereby all the issued and outstanding shares of common stock of the Merging Corporation will be canceled; and WHEREAS, the parties hereto desire to set forth the terms of the Merger; NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and covenants herein contained, the parties hereto hereby agree as follows: ARTICLE 1 THE MERGER 1.1 THE MERGER. Subject to and in accordance with the terms and conditions of this Agreement and in accordance with the Delaware General Corporation Law (the "DGCL"), effective as of 11:59 p.m. Eastern Standard Time, December 31, 1998 (such date and time, the "Effective Time"), the Merging Corporation shall merge with and into PageNet. As a result of the Merger, the separate corporate existence of the Merging Corporation shall cease and PageNet, as the surviving corporation (sometimes referred to as the "Surviving Corporation" in such context), shall succeed to all the liabilities, rights, privileges, immunities, and franchises and all the property (real, personal, intellectual and other) of the Merging Corporation, without the necessity for separate transfer. PageNet shall thereafter be responsible and liable for all the obligations of the Merging Corporation, and neither the rights of the creditors nor any liens on the property of the Merging Corporation shall be impaired by the Merger. 1.2 EFFECTS OF THE MERGER. The Merger shall have the effects set forth in the applicable provisions of the DGCL. 1.3 CERTIFICATE OF INCORPORATION: BYLAWS. The Certificate of Incorporation (the "Certificate") and Bylaws (the "Bylaws") of PageNet, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation and Bylaws of the Surviving Corporation and thereafter shall continue to be its Certificate of Incorporation and Bylaws until amended as provided therein and under the DGCL. 1.4 DIRECTORS AND OFFICERS. The persons serving as directors and officers of PageNet immediately prior to the Effective Time shall be the directors and officers of the Surviving Corporation, each to hold office until their respective successors are duly elected or appointed and qualified in accordance with the Certificate and Bylaws. -1- 1.5 CONVERSION OF SECURITIES: EXCHANGE. Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, PageNet or the Merging Corporation: (a) Each share of the common stock of the Merging Corporation which is issued and outstanding immediately prior to the Effective Time shall be canceled, and certificates that, prior to the Effective Time of the Merger, represented shares of common stock of the Merging Corporation shall thereafter be deemed canceled. No shares of stock of PageNet will be issued pursuant to the Merger. (b) Each share of common stock of the Merging Corporation held in the treasury of any of the Merging Corporation immediately prior to the Effective Time, and all rights to acquire shares of common stock of the Merging Corporation, if any, shall be canceled and extinguished at the Effective Time without any conversion thereof and no payment shall be made with respect thereto. (c) Each share of the common stock of PageNet issued and outstanding immediately prior to the Effective Time shall at the Effective Time be converted into one (1) validly issued, fully paid and non-assessable share of the common stock of the Surviving Corporation. 1.6 TAKING OF NECESSARY ACTION: FURTHER ACTION. The parties hereto shall take all such reasonable and lawful action as may be necessary or appropriate in order to effectuate the Merger as promptly as possible. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Merging Corporation, such corporations shall direct their respective officers and directors to take, all such lawful and necessary action. 1.7 TERMINATION. At any time prior to the Effective Time, this Agreement may be terminated by the Board of Directors of PageNet notwithstanding approval of the agreement by the stockholders of all or any of the Merging Corporation or of PageNet. ARTICLE 2 MISCELLANEOUS 2.1 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one original. 2.2 SUCCESSORS AND ASSIGNS. This Agreement and the rights, interests, and obligations hereunder shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 2.3 GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware (except the choice of law rules thereof). -2- IN WITNESS WHEREOF, the undersigned have each caused this Agreement and Plan of Merger to be executed on its behalf by its duly authorized officer on December 2, 1998 to be effective at the Effective Time. PAGENET, INC. By: /s/ J. Barry Duncan ---------------------------------------- J. Barry Duncan Vice President PAGING NETWORK OF NEW YORK, INC. By: /s/ J. BARRY DUNCAN ---------------------------------------- J. Barry Duncan Vice President The undersigned, as the duly authorized Secretary of PageNet and the Merging Corporation, hereby certifies that this Agreement and Plan of Merger was unanimously approved by the sole stockholder of PageNet and the Merging Corporation in accordance with applicable law. /s/ Ruth Williams -------------------------------------------- Ruth Williams Secretary of PageNet and the Merging Corporation -3- AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), entered into on the 2nd day of December, 1998, is entered into by and among PageNet, Inc., a Delaware corporation ("PageNet"), and those corporations listed on Exhibit A, each of which is a Delaware corporation (the "Merging Corporations") to effect the merger of the Merging Corporations with and into PageNet (the "Merger") as provided herein. WITNESSETH: WHEREAS, Paging Network, Inc., a Delaware corporation and parent of PageNet and each of the Merging Corporations ("Parent") desires to consolidate certain of its operations; and WHEREAS, subject to and in accordance with the terms and conditions of this Agreement, the respective Boards of Directors of PageNet and each of the Merging Corporations have approved the Merger, whereby all the issued and outstanding shares of common stock of each of the Merging Corporations will be canceled; and WHEREAS, the parties hereto desire to set forth the terms of the Merger; NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and covenants herein contained, the parties hereto hereby agree as follows: ARTICLE 1 THE MERGER 1.1 THE MERGER. Subject to and in accordance with the terms and conditions of this Agreement and in accordance with the Delaware General Corporation Law (the "DGCL"), effective as of 11:59 p.m. Eastern Standard Time, December 31, 1998 (such date and time, the "Effective Time"), the Merging Corporations shall merge with and into PageNet. As a result of the Merger, the separate corporate existence of the Merging Corporations shall cease and PageNet, as the surviving corporation (sometimes referred to as the "Surviving Corporation" in such context), shall succeed to all the liabilities, rights, privileges, immunities, and franchises and all the property (real, personal, intellectual and other) of the Merging Corporations, without the necessity for separate transfer. PageNet shall thereafter be responsible and liable for all the obligations of the Merging Corporations, and neither the rights of the creditors nor any liens on the property of the Merging Corporations shall be impaired by the Merger. 1.2 EFFECTS OF THE MERGER. The Merger shall have the effects set forth in the applicable provisions of the DGCL. 1.3 CERTIFICATE OF INCORPORATION: BYLAWS. The Certificate of Incorporation (the "Certificate") and Bylaws (the "Bylaws") of PageNet, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation and Bylaws of the Surviving Corporation and thereafter shall continue to be its Certificate of Incorporation and Bylaws until amended as provided therein and under the DGCL. 1.4 DIRECTORS AND OFFICERS. The persons serving as directors and officers of PageNet immediately prior to the Effective Time shall be the directors and officers of the Surviving Corporation, each -1- to hold office until their respective successors are duly elected or appointed and qualified in accordance with the Certificate and Bylaws. 1.5 CONVERSION OF SECURITIES: EXCHANGE. Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, PageNet or the Merging Corporations: (a) Each share of the common stock of each of the Merging Corporations which is issued and outstanding immediately prior to the Effective Time shall be canceled, and certificates that, prior to the Effective Time of the Merger, represented shares of common stock of the Merging Corporations shall thereafter be deemed canceled. No shares of stock of PageNet will be issued pursuant to the Merger. (b) Each share of common stock of each of the Merging Corporations held in the treasury of any of the Merging Corporations immediately prior to the Effective Time, and all rights to acquire shares of common stock of the Merging Corporations, if any, shall be canceled and extinguished at the Effective Time without any conversion thereof and no payment shall be made with respect thereto. (c) Each share of the common stock of PageNet issued and outstanding immediately prior to the Effective Time shall at the Effective Time be converted into one (1) validly issued, fully paid and non-assessable share of the common stock of the Surviving Corporation. 1.6 TAKING OF NECESSARY ACTION: FURTHER ACTION. The parties hereto shall take all such reasonable and lawful action as may be necessary or appropriate in order to effectuate the Merger as promptly as possible. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Merging Corporations, such corporations shall direct their respective officers and directors to take, all such lawful and necessary action. 1.7 TERMINATION. At any time prior to the Effective Time, this Agreement may be terminated by the Board of Directors of PageNet notwithstanding approval of the agreement by the stockholders of all or any of the Merging Corporations or of PageNet. ARTICLE 2 MISCELLANEOUS 2.1 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one original. 2.2 SUCCESSORS AND ASSIGNS. This Agreement and the rights, interests, and obligations hereunder shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 2.3 GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware (except the choice of law rules thereof). -2- IN WITNESS WHEREOF, the undersigned have each caused this Agreement and Plan of Merger to be executed on its behalf by its duly authorized officer on December 2, 1998 to be effective at the Effective Time. PAGENET, INC. By: /s/ J. BARRY DUNCAN ------------------------------- J. Barry Duncan Vice President -3- Paging Network-Central Region, Inc. Paging Network-Northeastern Region, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan --------------------------------- -------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President Paging Network-Northwestern Region, Inc. Paging Network of Dallas/Ft. Worth, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan --------------------------------- -------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President Paging Network of Hartford/Springfield, Inc. Paging Network of Illinois, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan --------------------------------- -------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President Paging Network of Los Angeles, Inc. Paging Network of Massachusetts, inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan --------------------------------- -------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President Paging network of Minnesota, Inc. Paging Network of New Jersey, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan --------------------------------- -------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President Paging Network of Ohio, Inc. Paging Network of Oregon, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan --------------------------------- -------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President Paging Network of Philadelphia, Inc. Paging network of San Antonio, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan --------------------------------- -------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President
-4- Paging Network of Utah, Inc. Paging Network Equipment Company, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan -------------------------------- -------------------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President Paging Network Satellite Company, Inc. Paging Network Services, Inc. By: /s/ J. Barry Duncan By: /s/ J. Barry Duncan -------------------------------- -------------------------------- J. Barry Duncan J. Barry Duncan Vice President Vice President
The undersigned, as the duly authorized Secretary of PageNet and each of the Merging Corporations, hereby certifies that this Agreement and Plan of Merger was unanimously approved by the sole stockholder of PageNet and each of the Merging Corporations in accordance with applicable law. /s/ Ruth Williams ----------------------------------------- Ruth Williams Secretary of PageNet and each Merging Corporation -5- EXHIBIT A
Corporation State of Incorporation - ----------- ---------------------- Paging Network-Central Region, Inc. Delaware Paging Network-Northeastern Region, Inc. Delaware Paging Network-Northwestern Region, Inc. Delaware Paging Network of Dallas/Ft. Worth, Inc. Delaware Paging Network of Hartford/Springfield, Inc. Delaware Paging Network of Illinois, Inc. Delaware Paging Network of Los Angeles, Inc. Delaware Paging Network of Massachusetts, Inc. Delaware Paging Network of Minnesota, Inc. Delaware Paging Network of New Jersey, Inc. Delaware Paging Network of Ohio, Inc. Delaware Paging Network of Oregon, Inc. Delaware Paging Network of Philadelphia, Inc. Delaware Paging Network of San Antonio, Inc. Delaware Paging Network of Utah, Inc. Delaware Paging Network Equipment Company, Inc. Delaware Paging Network Satellite Company, Inc. Delaware Paging Network Services, Inc. Delaware
-6- EX-99.(T3A)(23) 12 b42413a1ex99-t3a23.txt CERT OF INCORPORATION PAGING NETWORK OF AMERICA EXHIBIT T3A-23 CERTIFICATE OF INCORPORATION OF PAGING NETWORK OF AMERICA, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is Paging Network of America, Inc. SECOND: The registered office of the corporation in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is 3000 shares of Common Stock, $.01 par value per share. FIFTH: The name and mailing address of the incorporator is as follows: NAME MAILING ADDRESS ---- --------------- Jane G. Hall Gaston & Snow One Federal Street Boston, MA 02110 SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders. (a) Directors need not be stockholders of the corporation. (b) Subject to any limitation contained in the by-laws, the board of directors may make by-laws, and from time to time may alter, amend or repeal any by-laws, but any by-laws made by the board of directors may be altered, amended or repealed by the stockholders at any meeting of stockholders by the affirmative vote of the holders of a majority of the stock present and voting at such meeting, provided notice that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice of such meeting. (c) The board of directors shall have power from time to time to fix and determine and to vary the amount of the working capital of the corporation, to direct and determine the use and disposition thereof, to set apart out of any funds of the corporation available for dividends a reserve or reserves for any proper-purposes and to abolish any such reserve in the manner in which it was created. -2- (d) The board of directors may from time to time determine whether and to what extent and at which times and places and under what conditions and regulations the accounts and books of the corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, book or document of the corporation except as conferred by statute or as authorized by the board of directors. (e) No contract or other transaction 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 or other interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorized the contract or other transaction, or solely because his or their votes are counted for such purpose, provided that the material facts as to such relationship or interest and as to the contract or other transaction are disclosed or are known (1) to the board of directors or the committee, and the board or committee in good faith authorizes the contract or other transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (2) to the stockholders entitled to vote -3- thereon, and the contract or other transaction is specifically approved in good faith by vote of the stockholders. (f) Any contract, act or transaction of the corporation or of the directors may be ratified by a vote of a majority of the shares having voting power at any meeting of stockholders, or at any special meeting called for such purpose, and such ratification shall, so far as permitted by law and by this certificate of incorporation, be as valid and as binding as though ratified by every stockholder of the corporation. (g) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to (i) any agreements among and between stockholders, (ii) the rights of creditors and (iii) rights expressly provided for particular classes or series of stocks, for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation in such manner that every stockholder will receive a -4- proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (h) Elections of directors need not be by ballot. (i) The corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to be a director or officer of this corporation or while a director or officer is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement or incurred in connection with the investigation, preparation to defend or defense of such action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising -5- under any by-law, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this Section (i) of Article SIXTH shall not adversely affect any right or protection of a director or officer of the corporation existing at the time of such repeal or modification. SEVENTH: No holder of stock of the corporation shall be entitled as of right to purchase or subscribe for any part of any unissued stock of the corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the corporation, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock or such additional authorized issue of new stock, but rather such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and disposed of pursuant to resolution of the board of directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the board of directors in the exercise of their discretion. EIGHTH: Meetings of stockholders may be held without the State of Delaware, if the by-laws so provide. The books of the corporation may be kept (subject to the provisions of the Delaware General Corporation Law) outside of the State of Delaware at such place or places as may be from time to time designated by the board of directors. -6- NINTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. -7- facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 25th day of April, 1991. /s/ Jane G. Hall ------------------------------ Jane G. Hall, Incorporator -8- EX-99.(T3A)(24) 13 b42413a1ex99-t3a24.txt CERT OF INC PAGING NETWORK OF COLORADO EXHIBIT T3A-24 CERTIFICATE OF INCORPORATION OF PAGING NETWORK OF DENVER, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows; FIRST: The name of the corporation is Paging Network of Denver, Inc. SECOND: The registered office of the corporation in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is 3,000 shares of Common Stock, $.01 par value per share. FIFTH: The name and mailing address of the incorporator is as follows: NAME MAILING ADDRESS Jane E. Pike Bingham, Dana & Gould 150 Federal Street Boston, MA 02110 -2- SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of she corporation, the directors and the stockholders. (a) Directors need not be stockholders of the corporation, (b) Subject to any limitation contained in the by-laws, the board of directors may make by-laws, and from time to time may alter, amend or repeal any by-laws, but any by-laws made by the board of directors may be altered, amended or repealed by the stockholders at any meeting of stockholders by the affirmative vote of the holders of a majority of the stock present and voting at such meeting, provided notice that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice of such meeting. (c) The board of directors shall have power from time to time to fix and determine and to vary the amount of the working capital of the corporation, to direct and determine the use and disposition thereof, to set apart out of any funds of the corporation available for dividends a reserve or reserves for any proper purposes and to abolish any such reserve in the manner in which it was created. (d) The board of directors may from time to time determine whether and to what extent and at which times and -3- (e) places and under what conditions and regulations the accounts and books of the corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, book or document of the corporation except as conferred by statute or as authorized by the board of directors. (f) No contract or other transaction 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 or other interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorized the contract or other transaction, or solely because his or their votes are counted for such purpose, provided that the material facts as to such relationship or interest and as to the contract or other transaction are disclosed or are known (1) to the board of directors or the committee, and the board or committee in good faith authorizes the contract or other transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (2) to the stockholders entitled to vote thereon, and the contract or other transaction is specifically approved in good faith by vote of the stockholders. -4- (g) Any contract, act or transaction of the corporation or of the directors may be ratified by a vote of a majority of the shares having voting power at any meeting of stockholders, or at any special meeting called for such purpose, and such ratification shall, so far as permitted by law and by this certificate of incorporation, be as valid and as binding as though ratified by every stockholder of the corporation. (h) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to (i) any agreements among and between stockholders, (ii) the rights of creditors and (iii) rights expressly provided for particular classes or series of stocks, for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. -5- (i) Elections of directors need not be by ballot. (j) The corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to be a director or officer of this corporation or while a director or officer is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement or incurred in connection with the investigation, preparation to defend or defense of such action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any by-law, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this Section (i) of Article SIXTH shall not adversely affect any -6- right or protection of a director or officer of the corporation existing at the time of such repeal or modification. SEVENTH: No holder of stock of the corporation shall be entitled as of right to purchase or subscribe for any part of any unissued stock of the corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the corporation, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock or such additional authorized issue of new stock, but rather such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and disposed of pursuant to resolution of the board of directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the board of directors in the exercise of their discretion. EIGHTH: Meetings of stockholders may be held without the State of Delaware, if the by-laws so provide. The books of the corporation may be kept (subject to the provisions of the Delaware General Corporation Law) outside of the State of Delaware at such place or places as may be from time to time designated by the board of directors. NINTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. -7- THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 24th day of October, 1991, /s/ Jane E. Pike ------------------------------ Jane E. Pike, Incorporator CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF PAGING NETWORK OF DENVER, INC, PAGING NETWORK OF DENVER, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify that: First: That the Sole Director of Paging Network of Denver, Inc. by written consent duly adopted a resolution setting forth a proposed amendment to the Certificate of Incorporation of said Corporation and calling for submitting the proposed amendment to the sole shareholder of the Corporation for approval and adoption by the sole shareholder; the resolution setting forth the amendment is as follows: RESOLVED: "That Article First of the Certificate of Incorporation be and it hereby is amended to read as follows: First: The name of the Corporation is Paging Network of Colorado, Inc." Second: That the sole shareholder of Paging Network of Denver, Inc. by written consent duly adopted a resolution adopting the amendment to Article First of the Certificate of Incorporation as proposed by the sole Director. Third: That this amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, Paging Network of Denver, Inc. has caused this Certificate of Amendment to be signed and attested by its duly authorized officers this 16th day of September, 1992. PAGING NETWORK OF DENVER, INC. By: /s/ --------------------------- Its: President/Vice President ATTEST: /s/ - -------------------- Secretary CERTIFICATE OF MERGER OF PAGING NETWORK OF NEW MEXICO, INC. INTO PAGING NETWORK OF COLORADO, INC. The undersigned corporation, Paging Network of Colorado, Inc. DOES HEREBY CERTIFY: 1. That the names and states of incorporation of each of the constituent corporations of the merger are as follows:
NAME STATE OF INCORPORATION ---- ---------------------- Paging Network of New Mexico, Inc. Delaware Paging Network of Colorado, Inc. Delaware
2. That an Agreement of Merger between the parties of the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251 of the General Corporation Law of Delaware. 3. That the name of the surviving corporation of the merger is Paging Network of Colorado, Inc. 4. That the Certificate of Incorporation of Paging Network of Colorado, Inc., which is the surviving corporation; shall continue in full force and effect as the Certificate of Incorporation of the surviving corporation. 5. That the executed Agreement of Merger is on file at the principal place of business of the surviving corporation, the address of which is c/o Paging Network, Inc., 4965 Preston Park Boulevard, Suite 600, Plano, TX 75093. 6. That a copy of the Agreement of Merger will be furnished, on request and without cost, to any stockholder of the constituent corporation. 7. That this Certificate of Merger shall be effective at the close of business on the 28th day of December, 1996. -2- IN WITNESS WHEREOF, Paging Network of Colorado, Inc. has caused this certificate to be signed by Kenneth W. Sanders, its Senior Vice President- Finance, this 23rd day of December, 1996. PAGING NETWORK OF COLORADO, INC. By: /s/ Kenneth W. Sanders ---------------------------- Kenneth W. Sanders, Senior Vice President-Finance EX-99.(T3A)(25) 14 b42413a1ex99-t3a25.txt CERT OF INC PAGING NETWORK OF NORTHERN CALIFORNIA EXHIBIT T3A-25 CERTIFICATE OF INCORPORATION OF PAGING NETWORK OF NORTHERN CALIFORNIA, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is: Paging Network of Northern California, Inc. SECOND: The registered office of the corporation in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is 3,000 shares of Common Stock, $.01 par value per share. FIFTH: The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS ---- --------------- Jane E. Pike Bingham, Dana & Gould 150 Federal Street Boston, MA 02110
SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders. (a) Directors need not be stockholders of the corporation. (b) Subject to any limitation contained in the by-laws, the board of directors may make by-laws, and from time to time may alter, amend or repeal any by-laws, but any by-laws made by the board of directors may be altered, amended or repealed by the stockholders at any meeting of stockholders by the affirmative vote of the holders of a majority of the stock present and voting at such meeting, provided notice that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice of such meeting. -2- (c) The board of directors shall have power from time to time to fix and determine and to vary the amount of the working capital of the corporation, to direct and determine the use and disposition thereof, to set apart out of any funds of the corporation available for dividends a reserve or reserves for any proper purposes and to abolish any such reserve in the manner in which it was created. (d) The board of directors may from time to time determine whether and to what extent and at which times and places and under what conditions and regulations the accounts and books of the corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, book or document of the corporation except as conferred by statute or as authorized by the board of directors. (e) No contract or other transaction 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 or other interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorized the contract or other transaction, or solely because his or their votes are counted for such purpose, provided that the material facts as to such relationship or interest and as to the contract or other transaction are disclosed or are known (1) to the board of directors or the committee, and the board or committee in good faith authorizes the contract or other transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (2) to the stockholders entitled to vote thereon, and the contract or other transaction is specifically approved in good faith by vote of the stockholders. (f) Any contract, act or transaction of the corporation or of the directors may be ratified by a vote of a majority of the shares having voting power at any meeting of stockholders, or at any special meeting called for such purpose, and such ratification shall, so far as permitted by law and by this certificate of incorporation, be as valid and as binding as though ratified by every stockholder of the corporation. (g) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to (i) any agreements among and between stockholders, (ii) the rights of creditors and (iii) rights expressly provided for particular classes or series of stocks, for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the -3- corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (h) Elections of directors need not be by ballot. (i) The corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to be a director or officer of this corporation or while a director or officer is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement or incurred in connection with the investigation, preparation to defend or defense of such action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any by-law, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this Section (i) of Article SIXTH shall not adversely affect any right or protection of a director or officer of the corporation existing at the time of such repeal or modification. SEVENTH: No holder of stock of the corporation shall be entitled as of right to purchase or subscribe for any part of any unissued stock of the corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the corporation, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock or such additional authorized issue of new stock, but rather such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and disposed of pursuant to resolution of the board of directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the board of directors in the exercise of their discretion. -4- EIGHTH: Meetings of stockholders may be held without the State of Delaware, if the by-laws so provide. The books of the corporation may be kept (subject to the provisions of the Delaware General Corporation Law) outside of the State of Delaware at such place or places as may be from, time to time designated by the board of directors. NINTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 14th day of July, 1994. /s/ Jane E. Pike ------------------------------ Jane E. Pike, Incorporator EX-99.(T3A)(26) 15 b42413a1ex99-t3a26.txt CERT OF INC PAGING NETWORK OF MICHIGAN EXHIBIT T3A-26 CERTIFICATE OF INCORPORATION OF SPECIALIZED MOBILE RADIO SERVICES, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is SPECIALIZED MOBILE RADIO SERVICES, INC. SECOND: The registered office of the corporation in the State of Delaware is located at 100 West 10th Street, in the City of Wilmington, County of New Castle. The name and address of its registered agent is The Corporation Trust Company, 100 West 10th Street, Wilmington, Delaware. THIRD: The name of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one thousand (1,000) shares of Common Stock without par value. FIFTH: The Company is to have perpetual existence. SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders or one or more classes of the stockholders: (1) Except as otherwise required by law, by the Certificate of Incorporation or by the by-laws of the corporation, as from time to time amended, the business of the corporation shall be managed by its board of directors, which shall have and may exercise all the powers of the corporation. The board of directors of the corporation is hereby specifically authorized and empowered from time to time in its discretion to determine the extent, if any, to which and the time and place at which, and the conditions under which any stockholder of the corporation may examine books and records of the corporation, other than the books and records now or hereafter required by statute to be kept open for inspection of stockholders of the corporation. (2) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to the rights of creditors and rights expressly provided for particular classes or series of stocks for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation, in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (3) Elections of directors need not be by ballot. SEVENTH: The name and mailing address of the incorporator is as follows: NAME: MAILING ADDRESS: Jane N. Gallagher Gaston Snow & Ely Bartlett One Federal Street Boston, MA 02110 EIGHTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 4th day of March, 1982. /s/ Jane N. Gallagher Jane N. Gallagher CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF SPECIALIZED MOBILE RADIO SERVICES, INC. SPECIALIZED MOBILE RADIO SERVICES, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That Article First of the Certificate of Incorporation be and it hereby is amended to read as follows: The name of the corporation is PAGING NETWORK COMMUNICATIONS, INC. SECOND: That the amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said SPECIALIZED MOBILE RADIO SERVICES, INC. has caused this certificate to be signed by George M. Perrin, President, this 25 day of May, 1984, and attested by Roger D. Feldman, its Secretary. SPECIALIZED MOBILE RADIO SERVICES, INC. By: /s/ George M. Perrin George M. Perrin, President ATTEST: /s/ Roger D. Feldman Roger D. Feldman Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF PAGING NETWORK COMMUNICATIONS, INC. PAGING NETWORK COMMUNICATIONS, INC. a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That Article First of the Certificate of Incorporation be and it hereby is amended to read as follows: The name of the corporation is PAGING NETWORK OF MICHIGAN, INC. SECOND: That the amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said PAGING NETWORK COMMUNICATIONS, INC. has caused this certificate to be signed by George M. Perrin, President, this 28th day of June, 1985, and attested by Roger D. Feldman, its Secretary. PAGING NETWORK COMMUNICATIONS, INC. By /s/ George M. Perrin George M. Perrin, President ATTEST: /s/ Roger D. Feldman Roger D. Feldman, Secretary EX-99.(T3A)(27) 16 b42413a1ex99-t3a27.txt CERT OF INCORP PAGING NETWORK FINANCE CORP EXHIBIT T3A-27 CERTIFICATE OF INCORPORATION OF PAGING NETWORK FINANCE CORP. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is: Paging Network Finance Corp. SECOND: The registered office of the corporation in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is 3,000 shares of Common Stock, $.01 par value per share. FIFTH: The name and mailing address of the incorporator is as follows: NAME MAILING ADDRESS Jane E. Pike Bingham, Dana & Gould 150 Federal Street Boston, MA 02110 SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders. (a) Directors need not be stockholders of the corporation. (b) Subject to any limitation contained in the by-laws, the board of directors may make by-laws, and from time to time may alter, amend or repeal any by-laws, but any by-laws made by the board of directors may be altered, amended or repealed by the stockholders at any meeting of stockholders by the affirmative vote of the holders of a majority of the stock present and voting at such meeting, provided notice that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice of such meeting. -2- (c) The board of directors shall have power from time to time to fix and determine and to vary the amount of the working capital of the corporation, to direct and determine the use and disposition thereof, to set apart out of any funds of the corporation available for dividends a reserve or reserves for any proper purposes and to abolish any such reserve in the manner in which it was created. (d) The board of directors may from time to time determine whether and to what extent and at which times and places and under what conditions and regulations the accounts and books of the corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, book or document of the corporation except as conferred by statute or as authorized by the board of directors. (e) No contract or other transaction 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 or other interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorized the contract or other transaction, or solely because his or their votes are counted for such purpose, provided that the material facts as to such relationship or interest and as to the contract or other transaction are disclosed or are known (1) to the board of directors or the committee, and the board or committee in good faith authorizes the contract or other transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (2) to the stockholders entitled to vote thereon, and the contract or other transaction is specifically approved in good faith by vote of the stockholders. (f) Any contract, act or transaction of the corporation or of the directors may be ratified by a vote of a majority of the shaves having voting power at any meeting of stockholders, or at any special meeting called for such purpose, and such ratification shall, so far as permitted by law and by this certificate of incorporation, be as valid and as binding as though ratified by every stockholder of the corporation. (g) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to (i) any agreements among and between stockholders, (ii) the rights of creditors and (iii) rights expressly provided for particular classes or series of stocks, for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the -3- corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (h) Elections of directors need not be by ballot. (i) The corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to be a director or officer of this corporation or while a director or officer is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement or incurred in connection with the investigation, preparation to defend or defense of such action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any by-law, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this Section (i) of Article SIXTH shall not adversely affect any right or protection of a director or officer of the corporation existing at the time of such repeal or modification. SEVENTH: No holder of stock of the corporation shall be entitled as of right to purchase or subscribe for any part of any unissued stock of the corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the corporation, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock or such additional authorized issue of new stock, but rather such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and disposed of pursuant to resolution of the board of directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the board of directors in the exercise of their discretion. -4- EIGHTH: Meetings of stockholders may be held without the State of Delaware, if the by-laws so provide. The books of the corporation may be kept (subject to the provisions of the Delaware General Corporation Law) outside of the State of Delaware at such place or places as may be from time to time designated by the board of directors. NINTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 27th day of January, 1995. /s/ Jane E. Pike Jane E. Pike, Incorporator EX-99.(T3A)(28) 17 b42413a1ex99-t3a28.txt CERT OF INCORP PAGING NETWORK INTERNATIONAL INC. EXHIBIT T3A-28 CERTIFICATE OF INCORPORATION OF PAGING NETWORK INTERNATIONAL, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is: Paging Network International, Inc. SECOND: The registered office of the corporation in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is 3,000 shares of Common Stock, $.01 par value per share. FIFTH: The name and mailing address of the incorporator is as follows: NAME MAILING ADDRESS Jane E. Pike Bingham, Dana & Gould 150 Federal Street Boston, MA 02110 SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders. (a) Directors need not be stockholders of the corporation. (b) Subject to any limitation contained in the by-laws, the board of directors may make by-laws, and from time to time may alter, amend or repeal any by-laws, but any by-laws made by the board of directors may be altered, amended or repealed by the stockholders at any meeting of stockholders by the affirmative vote of the holders of a majority of the stock present and voting at such meeting, provided notice that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice of such meeting. -2- (c) The board of directors shall have power from time to time to fix and determine and to vary the amount of the working capital of the corporation, to direct and determine the use and disposition thereof, to set apart out of any funds of the corporation available for dividends a reserve or reserves for any proper purposes and to abolish any such reserve in the manner in which it was created. (d) The board of directors may from time to time determine whether and to what extent and at which times and places and under what conditions and regulations the accounts and books of the corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, book or document of the corporation except as conferred by statute or as authorized by the board of directors. (e) No contract or other transaction 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 or other interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorized the contract or other transaction, or solely because his or their votes are counted for such purpose, provided that the material facts as to such relationship or interest and as to the contract or other transaction are disclosed or are known (1) to the board of directors or the committee, and the board or committee in good faith authorizes the contract or other transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (2) to the stockholders entitled to vote thereon, and the contract or other transaction is specifically approved in good faith by vote of the stockholders. (f) Any contract, act or transaction of the corporation or of the directors may be ratified by a vote of a majority of the shares having voting power at any meeting of stockholders, or at any special meeting called for such purpose, and such ratification shall, so far as permitted by law and by this certificate of incorporation, be as valid and as binding as though ratified by every stockholder of the corporation. (g) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to (i) any agreements among and between stockholders, (ii) the rights of creditors and (iii) rights expressly provided for particular classes or series of stocks, for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the -3- corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (h) Elections of directors need not be by ballot. (i) The corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to be a director or officer of this corporation or while a director or officer is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement or incurred in connection with the investigation, preparation to defend or defense of such action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any by-law, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this Section (i) of Article SIXTH shall not adversely affect any right or protection of a director or officer of the corporation existing at the time of such repeal or modification. SEVENTH: No holder of stock of the corporation shall be entitled as of right to purchase or subscribe for any part of any unissued stock of the corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the corporation, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock or such additional authorized issue of new stock, but rather such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and disposed of pursuant to resolution of the board of directors to such persons, firms, corporations of associations, and upon such terms as may be deemed advisable by the board of directors in the exercise of their discretion. -4- EIGHTH: Meetings of stockholders may be held without the State of Delaware, if the bylaws so provide, The books of the corporation may be kept (subject to the provisions of the Delaware General Corporation Law) outside of the State of Delaware at such place or places as may be from time to time designated by the board of directors. NINTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this 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. THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 6th day of December, 1994. /s/ Jane E. Pike Jane E. Pike, Incorporator EX-99.(T3A)(29) 18 b42413a1ex99-t3a29.txt CERT OF INCORP PAGING NETWORK OF SAN FRANCISCO EXHIBIT T3A-29 CERTIFICATE OF INCORPORATION OF PAGING NETWORK OF SAN FRANCISCO, INC. The undersigned, in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is PAGING NETWORK OF SAN FRANCISCO, INC. SECOND: The registered office of the corporation in the State of Delaware is located at 100 West 10th Street, in the City of Wilmington, County of New Castle. The name and address of its registered agent is The Corporation Trust Company, 100 West 10th Street, Wilmington, Delaware. THIRD: The name of the business to be conducted or promoted and the purposes of the corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one thousand (1,000) shares of Common Stock without par value. FIFTH: The Company is to have perpetual existence. SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders -2- or one or more classes of the stockholders: (1) Except as otherwise required by law, by the Certificate of Incorporation or by the by-laws of the corporation, as from time to time amended, the business of the corporation shall be managed by its board of directors, which shall have and may exercise all the powers of the corporation. The board of directors of the corporation is hereby specifically authorized and empowered from time to time in its discretion to determine the extent, if any, to which and the time and place at which, and the conditions under which any stockholder of the corporation may examine books and records of the corporation, other than the books and records now or hereafter required by statute to be kept open for inspection of stockholders of the corporation. (2) Any vote or votes authorizing liquidation of the corporation or proceedings for its dissolution may provide, subject to the rights of creditors and rights expressly provided for particular classes or series of stocks for the distribution pro rata among the stockholders of the corporation of the assets of the corporation, wholly or in part in kind, whether such assets be in cash or other property, and may authorize the board of directors of the corporation to determine the value of the different assets of the corporation for the purpose of such liquidation and may divide or authorize the board of directors of the corporation to divide such assets or any part thereof among the stockholders of the corporation, in such manner that every stockholder will receive a proportionate amount in value (determined as aforesaid) of cash or property of the corporation upon such liquidation or dissolution even though each stockholder may not receive a strictly proportionate part of each such asset. (3) Elections of directors need not be by ballot. SEVENTH: The name and mailing address of the incorporator is as follows: NAME: MAILING ADDRESS: Jane N. Gallagher Gaston Snow & Ely Bartlett One Federal Street Boston, MA 02110 -3- EIGHTH: The corporation reserves the right to amend, alter, change or repeal any provisions contained in this Certificate of -4- Incorporation in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. THE UNDERSIGNED, hereby declaring and certifying that the facts stated in this Certificate of Incorporation are true, hereunto sets her hand and seal this 22nd day of January, 1982. /s/ Jane N. Gallagher Jane N. Gallagher -5- COMMONWEALTH OF MASSACHUSETTS ) ) ss: COUNTY OF SUFFOLK ) On this 22nd day of January, 1982, before me, the undersigned, a notary public in and for said Commonwealth, personally appeared Jane N. Gallagher, who, being first by me duly sworn, deposes and says that she is the sole incorporator of Paging Network of San Francisco, Inc., and the person who executed the foregoing Certificate of Incorporation, and acknowledged to me that the statements therein contained are true. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. /s/ Francine A. Parise Notary Public Residing at Norwood My commission expires: 4/14/83 -6- CERTIFICATE OF OWNERSHIP AND MERGER MERGING Peninsula Communications, Inc. INTO Paging Network of San Francisco, Inc. * * * * Paging Network of San Francisco, Inc., a corporation organized and existing under the laws of Delaware, DOES HEREBY CERTIFY: FIRST: That this corporation was incorporated on the 27th day of January, 1982, pursuant to the corporation law of the State of Delaware. SECOND: That this corporation owns all of the outstanding shares (of each class) of the stock of Peninsula Communications, Inc., a corporation incorporated on the 31st day of October, 1978, pursuant to the corporation law of the State of California. THIRD: That this corporation, by the following resolutions of its Board of Directors, duly adopted by the unanimous written consent of its members, filed with the minutes of the board, determined to and did merge into itself said Peninsula Communications, Inc.: RESOLVED, that this corporation shall merge into itself Peninsula Communications, Inc., its wholly-owned subsidiary corporation, and shall assume all of the liabilities of said subsidiary corporation. FURTHER RESOLVED, that the merger shall be effective upon the date of filing with the Secretary of State of Delaware. FURTHER RESOLVED, that the proper officers of this corporation be and they hereby are directed to make and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions to merge said Peninsula Communications, Inc. and assume its liabilities and obligations and the date of adoption thereof, and to cause the same to be filed with the Secretary of State and a certified copy recorded in the office of the Recorder of Deeds of New Castle County and to do all acts and things whatsoever, whether within or without the State of Delaware, which may be in anywise necessary or proper to effect said merger. IN WITNESS WHEREOF, said Paging Network of San Francisco, Inc. has caused this certificate to be signed by Terry L. Scott, its Vice President - Finance and Administration, and attested by Roger D. Feldman, its Secretary, this 24th day of August, 1983. PAGING NETWORK OF SAN FRANCISCO, INC. By /s/ Terry L. Scott Terry L. Scott, Vice President - Finance and Administration ATTEST: By /s/ Roger D. Feldman Roger D. Feldman, Secretary CERTIFICATE OF MERGER OF PAGING NETWORK Of OAKLAND, INC., PAGING NETWORK OF SACRAMENTO, INC. and PAGING NETWORK OF SAN JOSE, INC. INTO PAGING NETWORK OF SAN FRANCISCO, INC. ------------------ The undersigned corporation, Paging Network of San Francisco, Inc., DOES HEREBY CERTIFY: 1. That the names and states of incorporation of each of the constituent corporations of the merger are as follows: NAME STATE OF INCORPORATION Paging Network of Oakland, Inc. Delaware Paging Network of Sacramento, Inc. Delaware Paging Network of San Jose, Inc. Delaware Paging Network of San Francisco, Inc. Delaware 2. That an Agreement of Merger between the parties of the merger has been approved, adopted, certified; executed and acknowledged by each or the constituent corporations in accordance with the requirements of Section 251 of the General Corporation Law of Delaware. 3. That the name of the surviving corporation of the merger is Paging Network of San Francisco, Inc. 4. That the Certificate of Incorporation of Paging Network of San Francisco, Inc., which is the surviving corporation, shall continue in full force and effect as the Certificate of Incorporation of the surviving corporation. 5. That the executed Agreement of Merger is on file at the principal place of business of the surviving corporation, the address of which is c/o Paging Network, Inc., 4965 Preston Park Boulevard, Suite 600, Plano, TX 75093. 6. That a copy of the Agreement of Merger will be furnished, on request and without cost, to any stockholder of any constituent corporation. -2- 7. That this Certificate of Merger shall be effective at the close of business on the 31st day of December, 1993. -3- IN WITNESS WHEREOF, Paging Network of San Francisco, Inc. has caused this certificate to be signed by Terry L. Scott, its President, and attested by Roger D. Feldman, its Secretary, this 28th day of December, 1993. PAGING NETWORK OP SAN FRANCISCO, INC. By: /s/ Terry L. Scott Terry L. Scott President ATTEST: By: /s/ Roger D. Feldman Roger D. Feldman Secretary EX-99.(T3A)(30) 19 b42413a1ex99-t3a30.txt CERT OF FORMATION OF ARCH COMM ENTERPRISES, LLC EXHIBIT T3A-30 CERTIFICATE OF FORMATION OF ARCH COMMUNICATIONS ENTERPRISES LLC This Certificate of Formation of Arch Communications Enterprises LLC is being duly executed and filed by the undersigned authorized person to a form a limited liability company under the Delaware Limited Liability Company Act. FIRST: That the name of the limited liability company formed hereby (the "Company") is Arch Communications Enterprises LLC. SECOND: That the address of the Company's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the Company's registered agent at such address is The Corporation Trust Company. THIRD: That Arch Paging, Inc., a Delaware corporation ("API"), is the sole member of the Company. FOURTH: That the Company is member-managed and has no managers. API, as the sole member of the Company, may delegate such of its rights and powers to manage and control the business and affairs of the Company to such officers with such titles, duties and responsibilities as API shall from time to time determine to be necessary or advisable. FIFTH: That membership interests in the Company may be represented by certificates, as API shall from time to time determine to be necessary or advisable. SIXTH: That membership interests in the Company are securities governed by Article 8 of the Uniform Commercial Code, as adopted and in effect in the State of Delaware. SEVENTH: That effective date and time of formation of the limited liability company formed hereby shall be December 30, 1998. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Arch Communications Enterprises LLC this 28th day of December, 1998. /s/ C. E. Baker Jr. ---------------------------------------- Name: C. Edward Baker, Jr. Title: Authorized Person CERTIFICATE OF CONVERSION OF ARCH COMMUNICATIONS ENTERPRISES LLC (A COLORADO LIMITED LIABILITY COMPANY) TO ARCH COMMUNICATIONS ENTERPRISES LLC (A DELAWARE LIMITED LIABILITY COMPANY) This Certificate of Conversion (this "Certificate") of Arch Communications Enterprises LLC, a Colorado limited liability company (the "converting entity") to Arch Communications Enterprises LLC, a Delaware limited liability company (the "resulting entity"), is being duly executed and filed by the undersigned authorized person pursuant to Section 7-90-201 of the Colorado Corporations and Associations Act. FIRST: That the name of the converting entity, a Colorado limited liability company, is Arch Communications Enterprises LLC and its business address is 1800 West Park Drive, Suite 250, Westborough, MA 01581. SECOND: That the name of the resulting entity, a Delaware limited liability company, is Arch Communications Enterprises LLC and its business address is 1800 West Park Drive, Suite 250, Westborough, MA 01581. THIRD: That the sole member of the converting entity cast its vote in favor of the conversion. FOURTH: That the sole member of the resulting entity cast its vote in favor of the conversion. FIFTH That the effective date of the conversion of the converting entity to the resulting entity shall be December 31, 1998. IN WITNESS WHEREOF, the undersigned has executed this Certificate this 28th day of December, 1998. /s/ C. E. Baker Jr. ---------------------------------------- Name: C. Edward Baker, Jr. Title: Authorized Person -2- CERTIFICATE OF CONVERSION OF ARCH COMMUNICATIONS ENTERPRISES LLC (A COLORADO LIMITED LIABILITY COMPANY) TO ARCH COMMUNICATIONS ENTERPRISES LLC (A DELAWARE LIMITED LIABILITY COMPANY) This Certificate of Conversion (this "Certificate") of Arch Communications Enterprises LLC, a Colorado limited liability company (the "other entity"), to Arch Communications Enterprises LLC, a Delaware limited liability company (the "Delaware limited liability company"), is being duly executed and filed by the undersigned authorized person pursuant to Section 18-214 of the Delaware Limited Liability Company Act. FIRST: That the other entity was first organized under the laws of the State of Colorado on May 8, 1987. SECOND: That the name of the other entity immediately prior to the filing of this Certificate was Arch Communications Enterprises LLC. THIRD: That the name of the Delaware limited liability company, as set forth in its Certificate of Formation filed in accordance with Section 214(b) of the Delaware Limited Liability Company Act, is Arch Communications Enterprises LLC. FOURTH: That the effective date and time of the conversion of the other entity to the Delaware limited liability company shall be December 30, 1998. [Remainder of page left intentionally blank] IN WITNESS WHEREOF, the undersigned has executed this Certificate this 28th day of December, 1998. /s/ C. E. Baker Jr. ---------------------------------------- Name: C. Edward Baker, Jr. Title: Authorized Person -2- CERTIFICATE OF MERGER OF BECKER BEEPER, INC. (AN ILLINOIS CORPORATION) INTO ARCH COMMUNICATIONS ENTERPRISES LLC (A DELAWARE LIMITED LIABILITY COMPANY) Arch Communications Enterprises LLC, a limited liability company organized and existing under and by virtue of the Delaware Limited Liability Company Act, does hereby certify: FIRST: That the name and jurisdiction of incorporation of the corporation and the limited liability company involved in the merger (collectively, the "Consistent Entities") is as follows:
Jurisdiction of Name Incorporation ---- ------------- Becker Beeper, Inc. Illinois Arch Communications Enterprises LLC Delaware
SECOND: That an Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the Constituent Entities in accordance with the requirements of Subsection (b) of Section 18-209 of the Delaware Limited Liability Company Act and Section 5/11.39 of the Business Corporation Act of 1983 of the State of Illinois. THIRD: That the name of the surviving limited liability company of the merger is Arch Communications Enterprises LLC. FOURTH: That this Certificate of Merger shall be effective at 12:25 p.m., Eastern Time, on December 31, 1998. FIFTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving limited liability company. The address of said principal place of business is 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581. SIXTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving limited liability company upon request and without cost to any stockholder of the other Constituent Entity or to any member of the surviving limited liability company. IN WITNESS WHEREOF, Arch Communications Enterprises LLC has caused this Certificate to be executed this 28th day of December, 1998. Arch Communications Enterprises LLC (a Delaware Limited Liability Company) By: /s/ C. E. Baker Jr. ------------------------------------ C. Edward Baker, Jr. Chief Executive Officer CERTIFICATE OF MERGER OF ARCH CAPITOL DISTRICT, INC. (A NEW YORK CORPORATION) ARCH COMMUNICATIONS SERVICES, INC. (A NEW YORK CORPORATION) ARCH MICHIGAN, INC. (A DELAWARE CORPORATION) ARCH SOUTHEAST COMMUNICATIONS, INC. (A DELAWARE CORPORATION) THE WESTLINK COMPANY (A DELAWARE CORPORATION) INTO ARCH COMMUNICATIONS ENTERPRISES LLC (A DELAWARE LIMITED LIABILITY COMPANY) Arch Communications Enterprises LLC, a limited liability company organized and existing under and by virtue of the Delaware Limited Liability Company Act, does hereby certify: FIRST: That the name and jurisdiction of incorporation of each of the constituent corporations and the limited liability company of the merger (collectively, the "Consistent Entities") is as follows:
Jurisdiction of Name Incorporation ---- ------------- Arch Capitol District, Inc. New York Arch Communications Services, Inc. New York Arch Michigan, Inc. Delaware Arch Southeast Communications, Inc. Delaware The Westlink Company Delaware Arch Communications Enterprises LLC Delaware
SECOND: That an Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the Constituent Entities in accordance with the requirements of Subsection (b) of Section 18-209 of the Delaware Limited Liability Company Act. THIRD: That the name of the surviving limited liability company of the merger is Arch Communications Enterprises LLC. FOURTH: That this Certificate of Merger shall be effective at 12:25 p.m., Eastern Time, on December 31, 1998. FIFTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving limited liability company. The address of said principal place of business is 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581. SIXTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving limited liability company upon request and without cost to any stockholder of any other Constituent Entity or to any member of the surviving limited liability company. [Remainder of page left intentionally blank] IN WITNESS WHEREOF, Arch Communications Enterprises LLC has caused this Certificate to be executed this 28th day of December, 1998. Arch Communications Enterprises LLC (a Delaware Limited Liability Company) By: /s/ C. E. Baker Jr. ------------------------------------ C. Edward Baker, Jr. Chief Executive Officer EX-99.(T3A)(31) 20 b42413a1ex99-t3a31.txt CERT OF FORMATION MOBILEMEDIA LICENSE CO., LLC EXHIBIT T3A-31 CERTIFICATE OF FORMATION OF MOBILEMEDIA LICENSE CO., L.L.C. This Certificate of Formation of MobileMedia License Co., L.L.C. (the "LLC"), dated as of December 16th, 1998, is being duly executed and filed by Joseph A. Bondi, as an authorized person on behalf of Mobile Communications Corporation of America, a Delaware corporation ("MCCA"), to form a limited liability company under the Delaware Limited Liability Act (6 Del. C. Section 18-101 et. seq.) (the "Act"). FIRST: The name of the limited liability company formed hereby is MobileMedia License Co., L.L.C. SECOND: The address of the registered office of the LLC in the State of Delaware is Corporation Service Company, 1013 Centre Road, in the City of Wilmington, County of New Castle. The name of the registered agent at such address is Corporation Service Company. THIRD: The LLC shall be formed as of the filing of this Certificate of Formation. FOURTH: The initial Member of the LLC shall be MCCA. FIFTH: The LLC will engage only in activities that are legally permissible. SIXTH: Each Member of the LLC will be shielded from unlimited liability for the acts of other Members of the LLC consistent with the Act. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first written above. MOBILE COMMUNICATIONS CORPORATION OF AMERICA By: /s/ Joseph A. Bondi ------------------------------------ Name: Joseph A. Bondi Title: President CERTIFICATE OF AMENDMENT OF MOBILEMEDIA LICENSE CO., L.L.C. 1. The name of the limited liability company is MobileMedia License Co., L.L.C. 2. The Certificate of Formation of the limited liability company is hereby amended as follows: The name and address of the registered agent is: The Corporation Trust Company, 1209 Orange Street, Wilmington, DE 19801 3. This Certificate of Amendment shall be effective upon filing IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of MobileMedia License Co., L.L.C. on this 24 day of August, 2000. /s/ Kristen Betzger ---------------------------------------- Kristen Betzger, Authorized Person EX-99.(T3A)(32) 21 b42413a1ex99-t3a32.txt FORM OF RESTATED CERT OF INCORP ARCH CT VALLEY,INC Exhibit T3A-32 THE COMMONWEALTH OF MASSACHUSETTS WILLIAM FRANCIS GALVIN Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108 RESTATED ARTICLES OF ORGANIZATION (Under G.L. Ch. 156B, Section 74) We, J. Roy Pottle, Vice President and Patricia A. Gray, Clerk, of Arch Connecticut Valley, Inc., located at 1800 West Park Drive, Suite 250, Westborough, MA, do hereby certify that the following Restatement of the Articles of Organization was dully adopted SEE ATTACHMENT 1 ARTICLE I The name of the corporation is: Arch Connecticut Valley, Inc. ARTICLE II The purpose of the corporation is to engage in the following business activity(ies): SEE ATTACHMENT 2 ARTICLE III State the total number of shares and par value, if any, of each class of stock which the corproatin is authorized to issue:
WITHOUT PAR VALUE WITH PAR VALUE TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE Common: Common: 1,000 $.01 Preferred: Preferred:
ARTICLE IV If more than one class of stock is authorized, state a distinguishing designation for each class. Prior to the issuance of any shares of a class, if shares of another class are outstanding, the corporation must provide a description of the preferences, voting powers, qualifications, and special or relative rights or privileges of that class and of each other class of which shares are outstanding and of each series then established within any class. NONE ARTICLE V The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are: NONE ARTICLE VI **Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders: SEE ATTACHMENT 6. - 2 - ATTACHMENT 1 pursuant to Section 73 of Chapter 156B of the General Laws of Massachusetts in accordance with an order dated May 14, 2002 of the United States Bankruptcy Court for the District of Massachusetts, Western Division, in In re Arch Wireless, Inc., et. al., Case No. 01-47330-HJB, confirming the First Amended Joint Plan of Reorganization, as modified, of Arch Wireless, Inc. and its domestic subsidiaries, including the corporation. ATTACHMENT 2 (a) To acquire, own or operate radio common carrier, paging and conventional mobile telephone systems, both within and without the Commonwealth of Massachusetts; and to carry on and undertake any business, transaction or activity relating to the foregoing and, in the course of such business, transaction or activity, to (i) draw, accept, endorse, acquire, and sell any and all negotiable or transferable instruments and securities, (ii) make and enter into contracts, agreements, and obligations, of every type and description, with full power to perform any and all acts connected therewith or arising therefrom or incidental thereto, and (iii) perform any and all additional acts which are necessary and proper. (b) To transfer, to other persons or corporations, by grant, license, franchise, or other method, the right or privilege to carry on any kind of business on such terms as the corporation shall deem expedient or proper. (c) To acquire the good will, business, property or assets (including a trade name or trade style), and to assume or undertake the whole or any part of the liabilities of any person, firm, association or corporation and to pay for the same in cash, stock, bonds, debentures or other securities of the corporation, or otherwise, as the directors may determine. (d) To carry on any manufacturing, mercantile, selling, management, service or other business, transaction or activity which may be lawfully carried on by a corporation organized under Massachusetts General Laws, Chapter 156B, as amended (or the provisions of any substituted chapter of the General Laws of the Commonwealth of Massachusetts, dealing with the same general subject matter as such Chapter as now in effect, which may hereafter be enacted), whether or not related to those purposes referred to in the foregoing paragraphs. (e) To carry on any business, transaction or activity through a wholly or partly-owned subsidiary, or as a partner. (f) To carry on any business, transaction or activity referred to in the foregoing paragraphs to the same extent as might an individual, whether as principal, agent, contractor or otherwise, and either alone or in conjunction with any corporation, association, trust, firm, individual or government agency. (g) To have as additional purposes all powers granted and conferred by the laws of the Commonwealth of Massachusetts upon business corporations organized under Chapter 156B (or any such substituted chapter) of the General Laws of Massachusetts; provided, however, that no such purpose shall include any activity inconsistent with such Chapter 156B (or any such substituted chapter), or any other applicable provisions of the General Laws of Massachusetts. ATTACHMENT 6 6. Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders: 6A. LIMITATION OF DIRECTOR LIABILITY Except to the extent that Chapter 156B of the Massachusetts General Laws prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. 6B. INDEMNIFICATION 1. Actions, Suits and Proceedings. The corporation shall indemnify each 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 he is or was, or has agreed to become, a director, officer, partner, employee or trustee of, or in a similar capacity with, the corporation, or is or was serving, or has agreed to serve, at the request of the corporation, as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including in any capacity with respect to any employee benefit plan of the corporation) (each such person being referred to hereafter as an "Indemnitee"), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments and fines reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, unless the Indemnitee shall be finally adjudicated in such action, suit or proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation or, to the extent such matter relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan. Notwithstanding anything to the contrary in this Article, except as set forth in Section 6 below, the corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by the Indemnitee unless the initiation thereof was approved by the Board of Directors of the corporation. Notwithstanding anything to the contrary in this Article, the corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the corporation makes any indemnification payments to an Indemnitee and the Indemnitee is subsequently reimbursed for such indemnification payments from the proceeds of insurance, such Indemnitee shall promptly refund such indemnification payments to the corporation to the extent of such insurance reimbursement. 2. Settlements. The right to indemnification conferred in this Article shall include the right to be paid by the corporation for amounts paid in settlement of any such action, suit or proceeding and any appeal therefrom, and all expenses (including attorneys' fees) - 2 - incurred in connection with such settlement, pursuant to a consent decree or otherwise, unless and to the extent it is determined pursuant to Section 5 below that the Indemnitee did not act in good faith in the reasonable belief that his action was in the best interests of the corporation or, to the extent such matter relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan. 3. Notification and Defense of Claim. As a condition precedent to his right to be indemnified, the Indemnitee must notify the corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the corporation is so notified, the corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. After notice from the corporation to the Indemnitee of its election so to assume such defense, the corporation shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with such action, suit, proceeding or investigation, other than as provided below in this Section 3. The Indemnitee shall have the right to employ his own counsel in connection with such action, suit, proceeding or investigation, but the fees and expenses of such counsel incurred after notice from the corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the corporation, (ii) counsel to the Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on any significant issue between the corporation and the Indemnitee in the conduct of the defense of such action, suit, proceeding or investigation or (iii) the corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel for the Indemnitee shall be at the expense of the corporation, except as otherwise expressly provided by this Article. The corporation shall not be entitled, without the consent of the Indemnitee, to assume the defense of any claim brought by or in the right of the corporation or as to which counsel for the Indemnitee shall have reasonably made the conclusion provided for in clause (ii) above. The corporation shall not be required to indemnify the Indemnitee under this Article for any amounts paid in settlement of any action, suit, proceeding or investigation effected without its written consent. The corporation shall not settle any action, suit, proceeding or investigation in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee's written consent. Neither the corporation nor the Indemnitee will unreasonably withhold or delay its consent to any proposed settlement. 4. Advance of Expenses. Subject to the provisions of Section 5 below, to the extent that the corporation does not assume the defense pursuant to Section 3 of this Article of any action, suit, proceeding or investigation of which the corporation receives notice under this Article, any expenses (including attorneys' fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom shall be paid by the corporation in advance of the final disposition of such matter; provided, however, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the corporation as authorized in this Article. Such undertaking shall be accepted without reference to the financial ability of the Indemnitee to make such repayment. - 3 - 5. Procedure for Indemnification. In order to obtain indemnification or advancement of expenses pursuant to Section 1, 2 or 4 of this Article, the Indemnitee shall submit to the corporation a written request, including in such request such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification or advancement of expenses. Any such indemnification or advancement of expenses shall be made promptly, and in any event within 45 days after receipt by the corporation of the written request of the Indemnitee, unless the corporation determines within such 45-day period that the Indemnitee did not meet the applicable standard of conduct set forth in Section 1 or 2, as the case may be. Such determination shall be made in each instance by (a) a majority vote of a quorum of the directors of the corporation, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit, proceeding or investigation in question, (c) independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the corporation), or (d) a court of competent jurisdiction. 6. Remedies. The right to indemnification or advances as granted by this Article shall be enforceable by the Indemnitee in any court of competent jurisdiction if the corporation denies such request, in whole or in part, or if no disposition thereof is made within the 45-day period referred to above in Section 5. Unless otherwise required by law, the burden of proving that the Indemnitee is not entitled to indemnification or advancement of expenses under this Article shall be on the corporation. Neither the failure of the corporation to have made a determination prior to the commencement of such action that indemnification is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the corporation pursuant to Section 5 that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. The Indemnitee's expenses (including attorneys' fees) incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. 7. Subsequent Amendment. No amendment, termination or repeal of this Article or of the relevant provisions of Chapter 156B of the Massachusetts General Laws or any other applicable laws shall affect or diminish in any way the rights of any Indemnitee to indemnification under the provisions hereof with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of such amendment, termination or repeal. 8. Other Rights. The indemnification and advancement of expenses provided by this Article shall not be deemed exclusive of any other rights to which an Indemnitee seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), agreement or vote of stockholders or directors or otherwise, both as to action in his official capacity and as to action in any other capacity while holding office for the corporation, and shall continue as to an Indemnitee who has ceased to be a director or officer, and shall inure to the benefit of the estate, heirs, executors and administrators of the Indemnitee. Nothing contained in this Article shall be deemed to prohibit, and the corporation is specifically authorized to enter into, agreements with officers and directors providing indemnification rights - 4 - and procedures different from those set forth in this Article. In addition, the corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other persons serving the corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article. 9. Partial Indemnification. If an Indemnitee is entitled under any provision of this Article to indemnification by the corporation for some or a portion of the expenses (including attorneys' fees), judgments, fines or amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with any action, suit, proceeding or investigation and any appeal therefrom but not, however, for the total amount thereof, the corporation shall nevertheless indemnify the Indemnitee for the portion of such expenses (including attorneys' fees), judgments, fines or amounts paid in settlement to which the Indemnitee is entitled. 10. Insurance. The corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, partner, employee, trustee or agent of the corporation or another organization or employee benefit plan against any expense, liability or loss incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under Chapter 156B of the Massachusetts General Laws. 11. Merger or Consolidation. If the corporation is merged into or consolidated with another corporation and the corporation is not the surviving corporation, the surviving corporation shall assume the obligations of the corporation under this Article with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the date of such merger or consolidation. 12. Savings Clause. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each Indemnitee as to any expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with any action, suit, proceeding or investigation, whether civil, criminal or administrative, including an action by or in the right of the corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law. 13. Subsequent Legislation. If the Massachusetts General Laws are amended after adoption of this Article to expand further the indemnification permitted to Indemnitees, then the corporation shall indemnify such persons to the fullest extent permitted by the Massachusetts General Laws, as so amended. 6C. OTHER PROVISIONS (a) The directors may make, amend, or repeal the by-laws in whole or in part, except with respect to any provision of such by-laws which by law or these Articles or the by-laws requires action by the stockholders. (b) Meetings of the stockholders of the corporation may be held anywhere in the United States. - 5 - (c) The corporation shall have the power to be a partner in any business enterprise which this corporation would have the power to conduct by itself. (d) The corporation, by vote of a majority of the stock outstanding and entitled to vote thereon (or if there are two or more classes of stock entitled to vote as separate classes, then by vote of a majority of each such class of stock outstanding), may (i) authorize any amendment to its Articles of Organization pursuant to Section 71 of Chapter 156B of the Massachusetts General Laws, as amended from time to time, (ii) authorize the sale, lease or exchange of all or substantially all of its property and assets, including its goodwill, pursuant to Section 75 of Chapter 156B of the Massachusetts General Laws, as amended from time to time, and (iii) approve an agreement of merger or consolidation pursuant to Section 78 of Chapter 156B of the Massachusetts General Laws, as amended from time to time. (e) The corporation will not issue nonvoting capital stock to the extent prohibited by Section 1123(a)(6) of Title 11 of the United States Code (the "Bankruptcy Code"); provided, however, that the restriction set forth in this subsection (e): (i) will have no further force and effect beyond that required under Section 1123 of the Bankruptcy Code, (ii) will have such force and effect, if any, only for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to the corporation, and (iii) in all events may be deemed void or eliminated in accordance with applicable law as from time to time in effect. - 6 - ARTICLE VII The effective date of the restated Articles of Organization of the corporation shall be the date approved and filed by the Secretary of the Commonwealth. If a later effective date is desired, specify such date which shall not be more than thirty days after the date of filing. ARTICLE VIII The information contained in Article VIII is not a permanent part of the Articles of Organization. a. The street address (post office boxes are not acceptable) of the principal office of the corporation in Massachusetts is: 1800 West Park Drive, Suite 250, Westborough, MA 01581 b. The name, residential address and post office address of each director and officer of the corporation is as follows:
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS President: Lyndon R. Daniels 1800 West Park Drive, Ste. 250 Westborough, MA 01581 Treasurer: Gerald J. Cimmino 1800 West Park Drive, Ste. 250 Westborough, MA 01581 Clerk: Patricia A. Gray 1800 West Park Drive, Ste. 250 Westborough, MA 01581 Directors: C. Edward Baker, Jr. 1800 West Park Drive, Ste. 250 Westborough, MA 01581
c. The fiscal year (i.e., tax year) of the corporation shall end on the last day of the month of: December d. The name and business address of the resident agent, if any, of the corporation is: We further certify that the foregoing Restated Articles of Organization affect no amendments on the Articles of Organization of the corporation as heretofore amended, except amendments to the following articles. Briefly describe amendments below: Articles III, V, VI and VII are amended hereby. SIGNED UNDER THE PENALTIES OF PERJURY, this ___ day of May, 2002, ________________, Vice President, ________________, Clerk - 7 - EX-99.(T3A)(33) 22 b42413a1ex99-t3a33.txt FORM OF RESTATED CERT OF FORMATION ARCH COMM ENT Exhibit T3A-33 AMENDED AND RESTATED CERTIFICATE OF FORMATION OF [ARCH LLC SUBSIDIARY] [Arch LLC Subsidiary] (the "Company"), a limited liability company organized and existing under and by virtue of the Delaware Limited Liability Company Act, the original Certificate of Formation of which was filed with the Secretary of State of the State of Delaware on [date] [under the name ______], does hereby certify as follows: 1. This Amended and Restated Certificate of Formation amends and restates the Company's Certificate of Formation in its entirety and is intended to supersede the Company's Certificate of Formation in all respects. 2. Provision for the making of this Amended and Restated Certificate of Formation is contained in an order dated ________ __, 2002 of the United States Bankruptcy Court for the District of Massachusetts, Western Division (the "Bankruptcy Court"), in In re Arch Wireless, Inc., et al., Case No. 01-47330-HJB, confirming the Joint Plan of Reorganization (the "Plan") of Arch Wireless, Inc. and its domestic subsidiaries, including the Company. 3. This Amended and Restated Certificate of Formation has been duly executed by the undersigned, and is being filed with the Secretary of State of the State of Delaware in accordance with Section 18-208 of the Delaware Limited Liability Company Act. 4. Pursuant to Section 18-208 of the Delaware Limited Liability Company Act, the text of the Company's Certificate of Formation is hereby amended and restated to read in its entirety as follows: FIRST: The name of the limited liability company is [Arch LLC Subsidiary]. SECOND: The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. THIRD. The name and address of the registered agent for service of process on the Company in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, the Company has executed this Amended and Restated Certificate of Formation to be signed by its duly authorized officer this [____] day of [_____], 2002. [ARCH LCC SUBSIDIARY] By: ---------------------------------- Name: Title: EX-99.(T3B)(6) 23 b42413a1ex99-t3b6.txt AMENDED & RESTATED BY-LAWS ARCH WIRELESS COMM INC Exhibit T3B-6 AMENDED AND RESTATED BY-LAWS OF ARCH WIRELESS COMMUNICATIONS, INC.
TABLE OF CONTENTS Page ARTICLE I STOCKHOLDERS............................................................................................ 1 1.1 Place of Meetings............................................................................... 1 1.2 Annual Meeting.................................................................................. 1 1.3 Special Meetings................................................................................ 1 1.4 Notice of Meetings.............................................................................. 1 1.5 Voting List..................................................................................... 2 1.6 Quorum.......................................................................................... 2 1.7 Adjournments.................................................................................... 2 1.8 Voting and Proxies.............................................................................. 2 1.9 Action at Meeting............................................................................... 2 1.10 Conduct of Meetings............................................................................. 3 1.11 Action without Meeting.......................................................................... 3 ARTICLE II DIRECTORS.............................................................................................. 4 2.1 General Powers.................................................................................. 4 2.2 Number; Election and Qualification.............................................................. 5 2.3 Enlargement of the Board........................................................................ 5 2.4 Tenure.......................................................................................... 5 2.5 Vacancies....................................................................................... 5 2.6 Resignation..................................................................................... 5 2.7 Regular Meetings................................................................................ 5 2.8 Special Meetings................................................................................ 5 2.9 Notice of Special Meetings...................................................................... 5 2.10 Meetings by Conference Communications Equipment................................................. 6 2.11 Quorum.......................................................................................... 6 2.12 Action at Meeting............................................................................... 6 2.13 Action by Consent............................................................................... 6 2.14 Removal......................................................................................... 6 2.15 Committees...................................................................................... 6 2.16 Compensation of Directors....................................................................... 7 ARTICLE III OFFICERS.............................................................................................. 7 3.1 Titles.......................................................................................... 7 3.2 Election........................................................................................ 7 3.3 Qualification................................................................................... 7 3.4 Tenure.......................................................................................... 7 3.5 Resignation and Removal......................................................................... 7 3.6 Vacancies....................................................................................... 8 3.7 Chairman of the Board; Chief Executive Officer.................................................. 8 3.8 President....................................................................................... 8 3.9 Vice Presidents................................................................................. 8 3.10 Secretary and Assistant Secretaries............................................................. 8 3.11 Treasurer and Assistant Treasurers.............................................................. 9
i 3.12 Salaries........................................................................................ 9 ARTICLE IV CAPITAL STOCK.......................................................................................... 9 4.1 Issuance of Stock............................................................................... 9 4.2 Certificates of Stock........................................................................... 9 4.3 Transfers....................................................................................... 10 4.4 Lost, Stolen or Destroyed Certificates.......................................................... 10 4.5 Record Date..................................................................................... 10 ARTICLE V GENERAL PROVISIONS...................................................................................... 11 5.1 Fiscal Year..................................................................................... 11 5.2 Corporate Seal.................................................................................. 11 5.3 Waiver of Notice................................................................................ 11 5.4 Voting of Securities............................................................................ 11 5.5 Evidence of Authority........................................................................... 11 5.6 Certificate of Incorporation.................................................................... 11 5.7 Transactions with Interested Parties............................................................ 12 5.8 Severability.................................................................................... 12 5.9 Pronouns........................................................................................ 12 ARTICLE VI AMENDMENTS............................................................................................. 12 6.1 By the Board of Directors....................................................................... 12 6.2 By the Stockholders............................................................................. 12
ii AMENDED AND RESTATED BY-LAWS OF ARCH WIRELESS COMMUNICATIONS, INC. ARTICLE I STOCKHOLDERS 1.1 Place of Meetings. All meetings of stockholders shall be held at such place as may be designated from time to time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President or, if not so designated, at the principal office of the corporation. 1.2 Annual Meeting. Unless directors are elected by consent in lieu of an annual meeting, the annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date and at a time designated by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President (which date shall not be a legal holiday in the place where the meeting is to be held). If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual meeting, and in such case all references in these By-laws to the annual meeting of the stockholders shall be deemed to refer to such special meeting. 1.3 Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. 1.4 Notice of Meetings. Except as otherwise provided by law, written notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. Without limiting the manner by which notice otherwise may be given to stockholders, any notice shall be effective if given by a form of electronic transmission consented to (in a manner consistent with the General Corporation Law of the State of Delaware) by the stockholder to whom the notice is given. The notices of all meetings shall state the place date and time of the meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If notice is given by mail, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the corporation. If notice is given by electronic transmission, such notice shall be deemed given at the time specified in Section 232 of the General Corporation Law of the State of Delaware. 1.5 Voting List. The Secretary shall prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the corporation. The list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. 1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion or represented by proxy, shall constitute a quorum for the transaction of business. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum. 1.7 Adjournments. Any meeting of stockholders may be adjourned from time to time to any other time and to any other place at which a meeting of stockholders may be held under these By-laws by the stockholders present or represented at the meeting and entitled to vote, although less than a quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. 1.8 Voting and Proxies. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided by law or the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action without a meeting, may vote or express such consent or dissent in person (including by means of remote communications, if any, by which stockholders may be deemed to be present in person and vote at such meeting) or may authorize another person or persons to vote or act for such stockholder by a proxy executed or transmitted in a manner permitted by the General Corporation Law of the State of Delaware by the stockholder or such stockholder's authorized agent and delivered (including by electronic transmission) to the Secretary of the corporation. No such proxy shall be voted or acted upon after three years from the date of its execution, unless the proxy expressly provides for a longer period. 1.9 Action at Meeting. When a quorum is present at any meeting, any matter other than the election of directors to be voted upon by the stockholders at such meeting shall be decided by the vote of the holders of shares of stock having a majority of the votes cast by the 2 holders of all of the shares of stock present or represented and voting on such matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of a majority of the stock of that class present or represented and voting on such matter), except when a different vote is required by law, the Certificate of Incorporation or these By-Laws. When a quorum is present at any meeting, any election by stockholders of directors shall be determined by a plurality of the votes cast on the election. 1.10 Conduct of Meetings. (a) Chairman of Meeting. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the Chairman's absence by the Vice Chairman of the Board, if any, or in the Vice Chairman's absence by the Chief Executive Officer, or in the Chief Executive Officer's absence by the President, or in the President's absence by a Vice President, or in the absence of all of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen by vote of the stockholders at the meeting. The Secretary shall act as secretary of the meeting, but in the Secretary's absence the chairman of the meeting may appoint any person to act as secretary of the meeting. (b) Rules, Regulations and Procedures. The Board of Directors of the corporation may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. 1.11 Action without Meeting. (a) Taking of Action by Consent. Any action required or permitted to be taken at any annual or special meeting of stockholders of the corporation may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted. Except as otherwise provided by the 3 Certificate of Incorporation, stockholders may act by written consent to elect directors; provided, however, that, if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action. (b) Electronic Transmission of Consents. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section, provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the corporation can determine (A) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation's registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by telegram, cablegram or other electronic transmission may be otherwise delivered to the principal place of business of the corporation or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the Board of Directors. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. (c) Notice of Taking of Corporate Action. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation. ARTICLE II DIRECTORS 2.1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise provided by law, the Certificate of Incorporation or these 4 By-laws. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled. 2.2 Number; Election and Qualification. The number of directors which shall constitute the whole Board of Directors shall be determined from time to time by resolution of the stockholders or the Board of Directors, but in no event shall be less than one. The number of directors may be decreased at any time and from time to time either by the stockholders or by a majority of the directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more directors. The directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be stockholders of the corporation. 2.3 Enlargement of the Board. The number of directors may be increased at any time and from time to time by the stockholders or by a majority of the directors then in office. 2.4 Tenure. Each director shall hold office until the next annual meeting and until a successor is elected and qualified, or until such director's earlier death, resignation or removal. 2.5 Vacancies. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of such director's predecessor in office, and a director chosen to fill a position resulting from an increase in the number of directors shall hold office until the next annual meeting of stockholders and until a successor is elected and qualified, or until such director's earlier death, resignation or removal. 2.6 Resignation. Any director may resign by delivering a resignation in writing or by electronic transmission to the corporation at its principal office or to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event. 2.7 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders. 2.8 Special Meetings. Special meetings of the Board of Directors may be held at any time and place designated in a call by the Chairman of the Board, the Chief Executive Officer, the President, two or more directors, or by one director in the event that there is only a single director in office. 2.9 Notice of Special Meetings. Notice of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by giving notice to such director in person or by telephone at least 24 hours in advance of the meeting, (ii) by sending a telegram, 5 telecopy or electronic mail, or delivering written notice by hand, to such director's last known business, home or electronic mail address at least 48 hours in advance of the meeting, or (iii) by sending written notice, via first-class mail or reputable overnight courier, to such director's last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting. 2.10 Meetings by Conference Communications Equipment. Directors may participate in meetings of the Board of Directors or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. 2.11 Quorum. A majority of the total number of the whole Board of Directors shall constitute a quorum at all meetings of the Board of Directors. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such director so disqualified; provided, however, that in no case shall less than one-third of the number of directors fixed pursuant to Section 2.2 of these By-laws constitute a quorum. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present. 2.12 Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation or these By-laws. 2.13 Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission, and the written consents and electronic transmissions are filed with the minutes of proceedings of the Board or committee. 2.14 Removal. Except as otherwise provided by the General Corporation Law of the State of Delaware, any one or more or all of the directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only by vote of the holders of a majority of the outstanding shares of such class or series. 2.15 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of 6 law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of Directors. 2.16 Compensation of Directors. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from serving the corporation or any of its parent or subsidiary corporations in any other capacity and receiving compensation for such service. ARTICLE III OFFICERS 3.1 Titles. The officers of the corporation shall consist of a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors may determine, including a Chairman of the Board, a Vice Chairman of the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. 3.2 Election. The President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting. 3.3 Qualification. No officer need be a stockholder. Any two or more offices may be held by the same person. 3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, each officer shall hold office until such officer's successor is elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until such officer's earlier death, resignation or removal. 3.5 Resignation and Removal. Any officer may resign by delivering a written resignation to the corporation at its principal office or to the Chief Executive Officer or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of directors then in office. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer's resignation or removal, or any right to damages on account of such removal, whether 7 such officer's compensation be by the month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the corporation. 3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of such officer's predecessor and until a successor is elected and qualified, or until such officer's earlier death, resignation or removal. 3.7 Chairman of the Board; Chief Executive Officer. The Board of Directors may appoint from its members a Chairman of the Board. If the Board of Directors appoints a Chairman of the Board, such Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors and, if the Chairman of the Board is also designated as the corporation's Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in this Section 3.7. Unless otherwise provided by the Board of Directors, the Chairman of the Board shall preside at all meetings of the Board of Directors and stockholders. Unless the Board of Directors has designated the President or another person as the corporation's Chief Executive Officer, the Chairman of the Board shall be the Chief Executive Officer of the corporation. The Chief Executive Officer shall have general charge and supervision of the business of the Corporation subject to the direction of the Board of Directors. 3.8 President. The President shall perform such other duties and shall have such other powers as the Board of Directors and the Chief Executive Officer (if the Chairman of the Board or another person is serving in such position) may from time to time prescribe. 3.9 Vice Presidents. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer, the President (if the President is not the Chief Executive Officer), and then the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors), shall perform the duties of the Chief Executive Officer and when so performing shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors. 3.10 Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents. Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer or the Secretary may from time to time prescribe. In 8 the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary. In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the chairman of the meeting shall designate a temporary secretary to keep a record of the meeting. 3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these By-laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation. The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer. 3.12 Salaries. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors. ARTICLE IV CAPITAL STOCK 4.1 Issuance of Stock. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any shares of the authorized capital stock of the corporation held in the corporation's treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such lawful consideration and on such terms as the Board of Directors may determine. 4.2 Certificates of Stock. Every holder of stock of the corporation shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, certifying the number and class of shares owned by such holder in the corporation. Each such certificate shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the certificate may be a facsimile. 9 Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these By-laws, applicable securities laws or any agreement among any number of stockholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, 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 shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests a copy of the full text 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. 4.3 Transfers. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of stock may be transferred on the books of the corporation by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these By-laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-laws. 4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar. 4.5 Record Date. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or to express consent (or dissent) to corporate action without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 10 days after the date of adoption of a record date for a consent without a meeting, nor more than 60 days prior to any other action to which such record date relates. 10 If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. If no record date is fixed, the record date for determining stockholders entitled to express consent to corporate action without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first consent is properly delivered to the corporation. If no record date is fixed, the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. ARTICLE V GENERAL PROVISIONS 5.1 Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the corporation shall begin on the first day of January of each year and end on the last day of December in each year. 5.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by the Board of Directors. 5.3 Waiver of Notice. Whenever notice is required to be given by law, by the Certificate of Incorporation or by these By-laws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at or after the time stated in such notice, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. 5.4 Voting of Securities. Except as the Board of Directors may otherwise designate, the President or the Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation. 5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action. 5.6 Certificate of Incorporation. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time. 11 5.7 Transactions with Interested Parties. No contract or transaction between the corporation and one or more of the directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of the directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or a committee of the Board of Directors at which the contract or transaction is authorized or solely because any such director's or officer's votes are counted for such purpose, if: (a) The material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (b) The material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee of the Board of Directors, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. 5.8 Severability. Any determination that any provision of these By-laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these By-laws. 5.9 Pronouns. All pronouns used in these By-laws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. ARTICLE VI AMENDMENTS 6.1 By the Board of Directors. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present. 6.2 By the Stockholders. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any regular meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, 12 amendment, repeal or adoption of new by-laws shall have been stated in the notice of such special meeting. 13 EX-99.(T3B)(7) 24 b42413a1ex99-t3b7.txt BY-LAWWS OF PAGING NETWORKS CANADIAN HOLDINGS, INC EXHIBIT T3B-7 BY-LAWS OF PAGING NETWORK CANADIAN HOLDINGS, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefore, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III. Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is -2- required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V. Quorum of Stockholders Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after -3- three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. -4- ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. -5- Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the affirmative vote in good faith of a majority of the disinterested directors, even though the disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these bylaws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by -6- the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized -7- number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. ARTICLE XIX. Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and the year of its -8- organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. EX-99.(T3B)(8) 25 b42413a1ex99-t3b8.txt BY-LAWS OF PAGENET SMR SUB, INC Exhibit T3B-8 BY-LAWS OF PAGENET SMR SUB, INC. BY-LAWS TABLE OF CONTENTS
Page ---- ARTICLE I STOCKHOLDERS............................................................................................1 1.1 Place of Meetings...............................................................................1 1.2 Annual Meeting..................................................................................1 1.3 Special Meetings................................................................................1 1.4 Notice of Meetings..............................................................................1 1.5 Voting List.....................................................................................2 1.6 Quorum..........................................................................................2 1.7 Adjournments....................................................................................2 1.8 Voting and Proxies..............................................................................2 1.9 Action at Meeting...............................................................................3 1.10 Conduct of Meetings.............................................................................3 1.11 Action without Meeting..........................................................................3 ARTICLE II DIRECTORS..............................................................................................5 2.1 General Powers..................................................................................5 2.2 Number; Election and Qualification..............................................................5 2.3 Enlargement of the Board........................................................................5 2.4 Tenure..........................................................................................5 2.5 Vacancies.......................................................................................5 2.6 Resignation.....................................................................................5 2.7 Regular Meetings................................................................................5 2.8 Special Meetings................................................................................6 2.9 Notice of Special Meetings......................................................................6 2.10 Meetings by Conference Communications Equipment.................................................6 2.11 Quorum..........................................................................................6 2.12 Action at Meeting...............................................................................6 2.13 Action by Consent...............................................................................6 2.14 Removal.........................................................................................6 2.15 Committees......................................................................................7 2.16 Compensation of Directors.......................................................................7 ARTICLE III OFFICERS..............................................................................................7 3.1 Titles..........................................................................................7 3.2 Election........................................................................................7 3.3 Qualification...................................................................................7 3.4 Tenure..........................................................................................7 3.5 Resignation and Removal.........................................................................8 3.6 Vacancies.......................................................................................8
-i- 3.7 Chairman of the Board...........................................................................8 3.8 President; Chief Executive Officer..............................................................8 3.9 Vice Presidents.................................................................................8 3.10 Secretary and Assistant Secretaries.............................................................9 3.11 Treasurer and Assistant Treasurers..............................................................9 3.12 Salaries........................................................................................9 ARTICLE IV CAPITAL STOCK.........................................................................................10 4.1 Issuance of Stock..............................................................................10 4.2 Certificates of Stock..........................................................................10 4.3 Transfers......................................................................................10 4.4 Lost, Stolen or Destroyed Certificates.........................................................11 4.5 Record Date....................................................................................11 ARTICLE V GENERAL PROVISIONS.....................................................................................11 5.1 Fiscal Year....................................................................................11 5.2 Corporate Seal.................................................................................12 5.3 Waiver of Notice...............................................................................12 5.4 Voting of Securities...........................................................................12 5.5 Evidence of Authority..........................................................................12 5.6 Certificate of Incorporation...................................................................12 5.7 Transactions with Interested Parties...........................................................12 5.8 Severability...................................................................................13 5.9 Pronouns.......................................................................................13 ARTICLE VI AMENDMENTS............................................................................................13 6.1 By the Board of Directors......................................................................13 6.2 By the Stockholders............................................................................13
-ii- BY-LAWS OF PAGENET SMR SUB, INC. ARTICLE I STOCKHOLDERS 1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such place as may be designated from time to time by the Board of Directors, the Chairman of the Board or the President or, if not so designated, at the principal office of the corporation. 1.2 ANNUAL MEETING. Unless directors are elected by consent in lieu of an annual meeting, the annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date and at a time designated by the Board of Directors, the Chairman of the Board or the President (which date shall not be a legal holiday in the place where the meeting is to be held). If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual meeting, and in such case all references in these By-laws to the annual meeting of the stockholders shall be deemed to refer to such special meeting. 1.3 SPECIAL MEETINGS. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board or the President, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. 1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. Without limiting the manner by which notice otherwise may be given to stockholders, any notice shall be effective if given by a form of electronic transmission consented to (in a manner consistent with the Delaware General Corporation Law) by the stockholder to whom the notice is given. The notices of all meetings shall state the place, date and time of the meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If notice is given by mail, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the corporation. If notice is given by electronic transmission, such notice shall be deemed given at the time specified in Section 232 of the Delaware General Corporation Law. 1.5 VOTING LIST. The Secretary shall prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the corporation. The list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. 1.6 QUORUM. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion or represented by proxy, shall constitute a quorum for the transaction of business. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum. 1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned from time to time to any other time and to any other place at which a meeting of stockholders may be held under these By-laws by the stockholders present or represented at the meeting and entitled to vote, although less than a quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place, of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. 1.8 VOTING AND PROXIES. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided by law or the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action without a meeting, may vote or express such consent or dissent in person or may authorize another person or persons to vote or act for such stockholder by a proxy executed or transmitted in a manner permitted by the General Corporation Law of Delaware by the stockholder or such stockholder's authorized agent and delivered (including by electronic transmission) to the Secretary of the corporation. No such proxy shall be voted or acted upon -2- after three years from the date of its execution, unless the proxy expressly provides for a longer period. 1.9 ACTION AT MEETING. When a quorum is present at any meeting, any matter other than the election of directors to be voted upon by the stockholders at such meeting shall be decided by the vote of the holders of shares of stock having a majority of the votes cast by the holders of all of the shares of stock present or represented and voting on such matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of a majority of the stock of that class present or represented and voting on such matter), except when a different vote is required by law, the Certificate of Incorporation or these By-Laws. When a quorum is present at any meeting, any election by stockholders of directors shall be determined by a plurality of the votes cast on the election. 1.10 CONDUCT OF MEETINGS. (a) CHAIRMAN OF MEETING. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the Chairman's absence by the Vice Chairman of the Board, if any, or in the Vice Chairman's absence by the President, or in the President's absence by a Vice President, or in the absence of all of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen by vote of the stockholders at the meeting. The Secretary shall act as secretary of the meeting, but in the Secretary's absence the chairman of the meeting may appoint any person to act as secretary of the meeting. (b) RULES, REGULATIONS AND PROCEDURES. The Board of Directors of the corporation may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. 1.11 ACTION WITHOUT MEETING. -3- (a) TAKING OF ACTION BY CONSENT. Any action required or permitted to be taken at any annual or special meeting of stockholders of the corporation may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted. Except as otherwise provided by the Certificate of Incorporation, stockholders may act by written consent to elect directors; provided, however, that, if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action. (b) ELECTRONIC TRANSMISSION OF CONSENTS. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section, provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the corporation can determine (A) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation's registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by telegram, cablegram or other electronic transmission may be otherwise delivered to the principal place of business of the corporation or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the Board of Directors. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. (c) NOTICE OF TAKING OF CORPORATE ACTION. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation. -4- ARTICLE II DIRECTORS 2.1 GENERAL POWERS. The business and affairs of the corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise provided by law, the Certificate of Incorporation or these By-laws. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled. 2.2 NUMBER; ELECTION AND QUALIFICATION. The number of directors which shall constitute the whole Board of Directors shall be determined from time to time by resolution of the stockholders or the Board of Directors, but in no event shall be less than one. The number of directors may be decreased at any time and from time to time either by the stockholders or by a majority of the directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more directors. The directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be stockholders of the corporation. 2.3 ENLARGEMENT OF THE BOARD. The number of directors may be increased at any time and from time to time by the stockholders or by a majority of the directors then in office. 2.4 TENURE. Each director shall hold office until the next annual meeting and until a successor is elected and qualified, or until such director's earlier death, resignation or removal. 2.5 VACANCIES. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of such director's predecessor in office, and a director chosen to fill a position resulting from an increase in the number of directors shall hold office until the next annual meeting of stockholders and until a successor is elected and qualified, or until such director's earlier death, resignation or removal. 2.6 RESIGNATION. Any director may resign by delivering a resignation in writing or by electronic transmission to the corporation at its principal office or to the Chairman of the Board, the President or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event. 2.7 REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such time and place as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders. -5- 2.8 SPECIAL MEETINGS. Special meetings of the Board of Directors may be held at any time and place designated in a call by the Chairman of the Board, the President, two or more directors, or by one director in the event that there is only a single director in office. 2.9 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by giving notice to such director in person or by telephone at least 24 hours in advance of the meeting, (ii) by sending a telegram, telecopy or electronic mail, or delivering written notice by hand, to such director's last known business, home or electronic mail address at least 48 hours in advance of the meeting, or (iii) by sending written notice, via first-class mail or reputable overnight courier, to such director's last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting. 2.10 MEETINGS BY CONFERENCE COMMUNICATIONS EQUIPMENT. Directors may participate in meetings of the Board of Directors or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. 2.11 QUORUM. A majority of the total number of the whole Board of Directors shall constitute a quorum at all meetings of the Board of Directors. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such director so disqualified; provided, however, that in no case shall less than one-third (1/3) of the number so fixed constitute a quorum. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present. 2.12 ACTION AT MEETING. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation or these By-Laws. 2.13 ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission, and the written consents and electronic transmissions are filed with the minutes of proceedings of the Board or committee. 2.14 REMOVAL. Except as otherwise provided by the General Corporation Law of Delaware, any one or more or all of the directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only by vote of the holders of a majority of the outstanding shares of such class or series. -6- 2.15 COMMITTEES. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of Directors. 2.16 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from serving the corporation or any of its parent or subsidiary corporations in any other capacity and receiving compensation for such service. ARTICLE III OFFICERS 3.1 TITLES. The officers of the corporation shall consist of a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors may determine, including a Chairman of the Board, a Vice Chairman of the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. 3.2 ELECTION. The President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting. 3.3 QUALIFICATION. No officer need be a stockholder. Any two or more offices may be held by the same person. 3.4 TENURE. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, each officer shall hold office until such officer's successor is elected and -7- qualified, unless a different term is specified in the resolution electing or appointing such officer, or until such officer's earlier death, resignation or removal. 3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering a written resignation to the corporation at its principal office or to the Chief Executive Officer or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of directors then in office. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer's resignation or removal, or any right to damages on account of such removal, whether such officer's compensation be by the month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the corporation. 3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of such officer's predecessor and until a successor is elected and qualified, or until such officer's earlier death, resignation or removal. 3.7 CHAIRMAN OF THE BOARD. The Board of Directors may appoint from its members a Chairman of the Board. If the Board of Directors appoints a Chairman of the Board, such Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors and, if the Chairman of the Board is also designated as the corporation's Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in Section 3.8 of these By-laws. Unless otherwise provided by the Board of Directors, the Chairman of the Board shall preside at all meetings of the Board of Directors and stockholders. 3.8 PRESIDENT; CHIEF EXECUTIVE OFFICER. Unless the Board of Directors has designated the Chairman of the Board or another person as the corporation's Chief Executive Officer, the President shall be the Chief Executive Officer of the corporation. The Chief Executive Officer shall have general charge and supervision of the business of the Corporation subject to the direction of the Board of Directors. The President shall perform such other duties and shall have such other powers as the Board of Directors and the Chief Executive Officer (if the Chairman of the Board or another person is serving in such position) may from time to time prescribe. 3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer, the President (if the President is not the Chief Executive Officer), and then the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors), shall perform the duties of the Chief Executive Officer and when so performing shall -8- have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors. 3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents. Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary. In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the chairman of the meeting shall designate a temporary secretary to keep a record of the meeting. 3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these By-laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation. The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer. 3.12 SALARIES. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors. -9- ARTICLE IV CAPITAL STOCK 4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any shares of the authorized capital stock of the corporation held in the corporation's treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such lawful consideration and on such terms as the Board of Directors may determine. 4.2 CERTIFICATES OF STOCK. Every holder of stock of the corporation shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, certifying the number and class of shares owned by such holder in the corporation. Each such certificate shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the certificate may be a facsimile. Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these By-laws, applicable securities laws or any agreement among any number of stockholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, 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 shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests a copy of the full text 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. 4.3 TRANSFERS. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of stock may be transferred on the books of the corporation by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these By-laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for -10- all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-laws. 4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar. 4.5 RECORD DATE. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or to express consent (or dissent) to corporate action without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 10 days after the date of adoption of a record date for a consent without a meeting, nor more than 60 days prior to any other action to which such record date relates. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. If no record date is fixed, the record date for determining stockholders entitled to express consent to corporate action without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first consent is properly delivered to the corporation. If no record date is fixed, the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. ARTICLE V GENERAL PROVISIONS 5.1 FISCAL YEAR. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the corporation shall begin on the first day of January of each year and end on the last day of December in each year. -11- 5.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be approved by the Board of Directors. 5.3 WAIVER OF NOTICE. Whenever notice is required to be given by law, by the Certificate of Incorporation or by these By-laws, a written waiver, signed by the person entitled to notice or a waiver by electronic transmission by the person entitled to notice, whether before, at or after the time stated in such waiver, or the attendance of such person at such meeting, shall be deemed equivalent to such notice. 5.4 VOTING OF SECURITIES. Except as the Board of Directors may otherwise designate, the President or the Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation. 5.5 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action. 5.6 CERTIFICATE OF INCORPORATION. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time. 5.7 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction between the corporation and one or more of the directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of the directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or a committee of the Board of Directors at which the contract or transaction is authorized or solely because any such director's or officer's votes are counted for such purpose, if: (a) The material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (b) The material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or -12- (c) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee of the Board of Directors, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. 5.8 SEVERABILITY. Any determination that any provision of these By-laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these By-laws. 5.9 PRONOUNS. All pronouns used in these By-laws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. ARTICLE VI AMENDMENTS 6.1 BY THE BOARD OF DIRECTORS. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present. 6.2 BY THE STOCKHOLDERS. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any regular meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new by-laws shall have been stated in the notice of such special meeting. -13- EX-99.(T3B)(9) 26 b42413a1ex99-t3b9.txt BY-LAWS OF ARCHTEL, INC. EXHIBIT T3B-9 ARCHTEL, INC. (A DELAWARE CORPORATION) ------------------------- BY-LAWS ------------------------- ARTICLE I OFFICES SECTION 1. Registered Office. The registered office of the Corporation shall be located in the City of Dover, County of Kent, State of Delaware, and the name of the resident agent in charge thereof shall be Prentice-Hall Corporation Systems, Inc. SECTION 2. Other Offices. The Corporation may also have offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time appoint or the business of the Corporation may require. ARTICLE II SEAL The seal of the Corporation shall, subject to alteration by the Board of Directors, consist of a flat-faced circular die with the word "Delaware", together with the name of the Corporation and the year of incorporation, cut or engraved thereon. ARTICLE III MEETINGS OF STOCKHOLDERS SECTION 1. Place of Meeting. Meetings of the stockholders shall be held either within or without the State of Delaware at such place as the Board of Directors may fix. SECTION 2. Annual Meetings. The annual meeting of stockholders shall be held on the first day of May of each year, or if such day is a legal holiday, then on the next business day following, at such time as the Board of Directors may fix. SECTION 3. Special Meetings. Special meetings of the stockholders for any purpose or purposes may be called by the President, or by the directors (either by written instrument signed by a majority or by resolution adopted by a vote of the majority), and special meetings shall be called by the President or the Secretary whenever stockholders owning a majority of the capital stock issued, outstanding and entitled to vote so request in writing. Such request of stockholders shall state the purpose or purposes of the proposed meeting. SECTION 4. Notice. Written or printed notice of every meeting of stockholders, annual or special, stating the hour, date and place thereof, and the purpose or purposes in general terms 2 for which the meeting is called shall, not less than ten (10) and not more than sixty (60) days before such meeting, be served upon or mailed to each stockholder entitled to vote thereat, at his address as it appears upon the stock records of the Corporation or, if such stockholder shall have filed with the Secretary of the Corporation a written request that notices intended for him be mailed to some other address, then to the address designated in such request. Notice of the hour, date, place and purpose of any meeting of stockholders may be dispensed with if every stockholder entitled to vote thereat shall attend either in person or by proxy and shall not object to the holding of such meeting for lack of proper notice, or if every absent stockholder entitled to such notice shall in writing, filed with the records of the meeting, either before or after the holding thereof, waive such notice. SECTION 5. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the presence in person or by proxy at any meeting of stockholders of the holders of a majority of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote thereat, shall be requisite and shall constitute a quorum. If two or more classes of stock are entitled to vote as separate classes upon any question, then, in the case of each such class, a quorum for the consideration of such question shall, except as otherwise provided by law or by the Certificate of Incorporation, consist of a majority in interest of all stock of that class issued, outstanding and entitled to vote. If a majority or, where a larger quorum is required, such quorum, shall not be represented at any meeting of the stockholders regularly called, the holders of a majority of the shares present or represented and entitled to vote thereat shall have power to adjourn the meeting to another time, or to another time and place, without notice other than announcement of adjournment at the meeting, and there may be successive adjournments for like cause and in like manner until the requisite amount of shares entitled to vote at such meeting shall be represented; provided, however, that if the adjournment is for more than thirty (30) days, notice of the hour, date and place of the adjourned meeting shall be given to each stockholder entitled to vote thereat. Subject to the requirements of law and the Certificate of Incorporation, on any issue on which two or more classes of stock are entitled to vote separately, no adjournment shall be taken with respect to any class for which a quorum is present unless the Chairman of the meeting otherwise directs. At any meeting held to consider matters which were subject to adjournment for want of a quorum at which the requisite amount of shares entitled to vote thereat shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed. SECTION 6. Votes; Proxies. At each meeting of stockholders, every stockholder of record at the closing of the transfer books, if closed, or on the date set by the Board of Directors for the determination of stockholders entitled to vote at such meeting, shall have one vote for each share of stock entitled to vote which is registered in his name on the books of the Corporation, and, in the election of directors, may vote cumulatively to the extent and in the manner authorized in the Certificate of Incorporation. At each such meeting every stockholder shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three (3) years prior to the meeting in question, unless said instrument provides for a longer period during which it is to remain in force. 3 All elections of directors shall be held by ballot. If the Chairman of the meeting shall so determine, a vote may be taken upon any other matter by ballot and shall be so taken upon the request of any stockholder entitled to vote on such matter. At elections of directors, the Chairman shall appoint two judges of election, who shall first take and subscribe an oath or affirmation faithfully to execute the duties of judges at such meeting with strict impartiality and according to the best of their ability. The judges so appointed shall take charge of the polls and, after the balloting, shall make a certificate of the result of the vote taken. No director or candidate for the office of director shall be appointed as such judge. At any meeting at which a quorum is present, a plurality of the votes properly cast for election to fill any vacancy on the Board of Directors shall be sufficient to elect a candidate to fill such vacancy, and a majority of the votes properly cast upon any other question shall decide the question, except in any case where a larger vote is required by law, the Certificate of Incorporation, these By-Laws, or otherwise. SECTION 7. Organization. The Chairman of the Board, if there be one, or in his absence the President, or in the absence of the Chairman and the President, a Vice President, shall call meetings of the stockholders to order and shall act as chairman thereof. The Secretary of the Corporation, if present, shall act as secretary of all meetings of stockholders, and, in his absence, the presiding officer may appoint a secretary. ARTICLE IV DIRECTORS SECTION 1. Number. The business and property of the Corporation shall be conducted and managed by a Board of Directors consisting of one or more directors, none of whom needs to be a stockholder. The Board shall initially be composed of one director. The whole number of directors for the ensuing year shall be fixed at each annual meeting of stockholders, but if the number is not so fixed, the number shall remain as it stood immediately prior to such meeting. At any time during any year the whole number of directors may be increased or reduced, in each case by vote of a majority of the stock outstanding and entitled to vote for the election of directors or a majority of the directors in office at the time of such increase or decrease, regardless of whether such majority of directors constitutes a quorum. SECTION 2. Term of Office. Each director shall hold office until the next annual meeting of stockholders and until his successor is duly elected and qualified or until his earlier death or resignation, subject to the right of the stockholders at any time to remove any director or directors as provided in Section 4 of this Article. SECTION 3. Vacancies. If any vacancy shall occur among the directors, or if the number of directors shall at any time be increased, the directors then in office, although less than a quorum, by a majority vote may fill the vacancies or newly created directorships, or any such vacancies or newly-created directorships may be filled by the stockholders at any meeting. 4 SECTION 4. Removal by Stockholders. The holders of record of the capital stock of the Corporation entitled to vote for the election of directors may in their discretion at any meeting duly called for the purpose, by a majority vote, remove any director or directors and elect a new director or directors in place thereof. SECTION 5. Meetings. Meetings of the Board of Directors shall be held at such place, within or without the State of Delaware, as may from time to time be fixed by resolution of the Board or by the President and as may be specified in the notice or waiver of notice of any meeting. Meetings may be held at any time upon the call of the Chairman of the Board or the President or any two (2) of the directors in office by oral, telegraphic or written notice, duly served or sent or mailed to each director not less than twenty-four (24) hours before such meeting, except that, if mailed, not less than seventy-two (72) hours before such meeting. Meetings may be held at any time and place without notice if all the directors are present and do not object to the holding of such meeting for lack of proper notice or if those not present shall, in writing or by telegram, waive notice thereof. A regular meeting of the Board may be held without notice immediately following the annual meeting of stockholders at the place where such meeting is held. Regular meetings of the Board may also be held without notice at such time and place as shall from time to time be determined by resolution of the Board. SECTION 6. Quorum. A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the Board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time without notice other than announcement of the adjournment at the meeting, and at such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally noticed. SECTION 7. Compensation. Directors shall receive compensation for their services, as such, and for service on any Committee of the Board of Directors, as fixed by resolution of the Board of Directors and for expenses of attendance at each regular or special meeting of the Board or any Committee thereof. Nothing in this Section shall be construed to preclude a director from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE V COMMITTEES OF DIRECTORS SECTION 1. Executive Committee. The Board of Directors may appoint an Executive Committee of two (2) or more members, to serve during the pleasure of the Board, to consist of such directors as the Board may from time to time designate. The Board of Directors shall designate the Chairman of the Executive Committee. (a) Procedure. The Executive Committee shall, by a vote of a majority of its members, fix its own times and places of meeting, determine the number of its members constituting a quorum for the transaction of business, and prescribe its own rules of procedure, no change in which shall be made save by a majority vote of its members. (b) Responsibilities. During the intervals between the meetings of the Board of Directors, except as otherwise provided by the Board of Directors in establishing such 5 Committee or otherwise, the Executive Committee shall possess and may exercise all the powers of the Board in the management and direction of the business and affairs of the Corporation; provided, however, that the Executive Committee shall not have the power: (i) to amend or authorize the amendment of the Certificate of Incorporation or these By-Laws; (ii) to issue stock; (iii) to authorize the payment of any dividend; (iv) to adopt an agreement of merger or consolidation of the Corporation or to recommend to the stockholders the sale, lease or exchange of all or substantially all the property and business of the Corporation; or (v) to recommend to the stockholders a dissolution of the Corporation. (c) Reports. The Executive Committee shall keep regular minutes of its proceedings, and all action by the Executive Committee shall be reported promptly to the Board of Directors. Such action shall be subject to review, amendment and repeal by the Board, provided that no rights of third parties shall be adversely affected by such review, amendment or repeal. (d) Appointment of Additional Members. In the absence or disqualification of any member of the Executive Committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. SECTION 2. Audit Committee. The Board of Directors shall appoint an Audit Committee of two (2) or more members who shall not be officers or employees of the Corporation to serve during the pleasure of the Board. The Board of Directors shall designate the Chairman of the Audit Committee. (a) Procedure. The Audit Committee, by a vote of a majority of its members, shall fix its own times and places of meeting, shall determine the number of its members constituting a quorum for the transaction of business, and shall prescribe its own rules of procedure, no change in which shall be made save by a majority vote of its members. (b) Responsibilities. The Audit Committee shall review the annual financial statements of the Corporation prior to their submission to the Board of Directors, shall consult with the Corporation's independent auditors, and may examine and consider such other matters in relation to the internal and external audit of the Corporation's accounts and in relation to the financial affairs of the Corporation and its accounts, including the selection and retention of independent auditors, as the Audit Committee may, in its discretion, determine to be desirable. 6 (c) Reports. The Audit Committee shall keep regular minutes of its proceedings, and all action by the Audit Committee shall, from time to time, be reported to the Board of Directors as it shall direct. (d) Appointment of Additional Members. In the absence or disqualification of any member of the Audit Committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. SECTION 3. Other Committees. The Board of Directors, by vote of a majority of the directors then in office, may at any time appoint one or more other committees from and outside of its own number. Every such committee must include at least one member of the Board of Directors. The Board may from time to time designate or alter, within the limits permitted by law, the Certificate of Incorporation and this Article, if applicable, the duties, powers and number of members of such other committees or change their membership, and may at any time abolish such other committees or any of them. (a) Procedure. Each committee, appointed pursuant to this Section, shall, by a vote of a majority of its members, fix its own times and places of meeting, determine the number of its members constituting a quorum for the transaction of business, and prescribe its own rules of procedure, no change in which shall be made save by a majority vote of its members. (b) Responsibilities. Each committee, appointed pursuant to this Section, shall exercise the powers assigned to it by the Board of Directors in its discretion. (c) Reports. Each committee appointed pursuant to this Section shall keep regular minutes of proceedings, and all action by each such committee shall, from time to time, be reported to the Board of Directors as it shall direct. (d) Appointment of Additional Members. In the absence or disqualification of any member of each committee, -appointed pursuant to this Section, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. SECTION 4. Term of Office. Each member of a committee shall hold office until the first meeting of the Board of Directors following the annual meeting of stockholders (or until such other time as the Board of Directors may determine, either in the vote establishing the committee or at the election of such member or otherwise) and until his successor is elected and qualified, or until he sooner dies, resigns, is removed, is replaced by change of membership or becomes disqualified by ceasing to be a Director (where membership on the Board is required), or until the committee is sooner abolished by the Board of Directors. 7 ARTICLE VI OFFICERS SECTION 1. Officers. The Board of Directors shall elect a President, a Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the Board, one or more Executive Vice Presidents, Vice Presidents, Assistant Secretaries and Assistant Treasurers as deemed necessary or appropriate. Such officers shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders, and each shall hold office for the term provided by the vote of the Board, except that each will be subject to removal from office in the discretion of the Board as provided herein. The powers and duties of more than one office may be exercised and performed by the same person. SECTION 2. Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors, at any regular or special meeting. SECTION 3. Chairman of the Board. The Chairman of the Board of Directors, if elected, shall be a member of the Board of Directors and shall preside at its meetings. He shall advise and counsel with the President, and shall perform such duties as from time to time may be assigned to him by the Board of Directors. SECTION 4. President. The President shall be the chief executive officer of the Corporation. Subject to the directions of the Board of Directors, he shall have and exercise direct charge of and general supervision over the business and affairs of the Corporation and shall perform all duties incident to the office of the chief executive officer of a corporation and such other duties as from time to time may be assigned to him by the Board of Directors. The President may but need not be a member of the Board of Directors. SECTION 5. Executive Vice Presidents and Vice Presidents. Each Executive Vice President and Vice President shall have and exercise such powers and shall perform such duties as from time to time may be assigned to him by the President. SECTION 6. Secretary. The Secretary shall keep the minutes of all meetings of the stockholders and of the Board of Directors in books provided for the purpose; he shall see that all notices are duly given in accordance with the provisions of law and these By-Laws; he shall be custodian of the records and of the corporate seal or seals of the Corporation; he shall see that the corporate seal is affixed to all documents the execution of which, on behalf of the Corporation under its seal, is duly authorized, and, when the seal is so affixed, he may attest the same; he may sign, with the President, an Executive Vice President or a Vice President, certificates of stock of the Corporation; and, in general, he shall perform all duties incident to the office of secretary of a corporation, and such other duties as from time to time may be assigned to him by the Board of Directors. SECTION 7. Assistant Secretaries. The Assistant Secretaries in order of their seniority shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties as the Board of Directors shall prescribe or as from time to time may be assigned by the Secretary. 8 SECTION 8. Treasurer. The Treasurer shall have charge of and be responsible for all funds, securities, receipts and disbursements of the Corporation, and shall deposit, or cause to be deposited, in the name of the Corporation, all monies or other valuable effects in such banks, trust companies or other depositories as shall, from time to time, be selected by the Board of Directors; he may endorse for collection on behalf of the Corporation checks, notes and other obligations; he may sign receipts and vouchers for payments made to the Corporation; he may sign checks of the Corporation, singly or jointly with another person as the Board of Directors may authorize, and pay out and dispose of the proceeds under the direction of the Board; he shall render to the President and to the Board of Directors, whenever requested, an account of the financial condition of the Corporation; he may sign, with the President, or an Executive Vice President or a Vice President, certificates of stock of the Corporation; and in general, shall perform all the duties incident to the office of treasurer of a corporation, and such other duties as from time to time may be assigned to him by the Board of Directors. SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of their seniority shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the Board of Directors shall prescribe or as from time to time may be assigned by the Treasurer. SECTION 10. Subordinate Officers. The Board of Directors may appoint such subordinate officers as it may deem desirable. Each such officer shall hold office for such period, have such authority and perform such duties as the Board of Directors may prescribe. The Board of Directors may, from time to time, authorize any officer to appoint and remove subordinate officers and to prescribe the powers and duties thereof. SECTION 11. Compensation. The Board of Directors shall fix the compensation of all officers of the Corporation. It may authorize any officer, upon whom the power of appointing subordinate officers may have been conferred, to fix the compensation of such subordinate officers. SECTION 12. Removal. Any officer of the Corporation may be removed, with or without cause, by action of the Board of Directors. SECTION 13. Bonds. The Board of Directors may require any officer of the Corporation to give a bond to the Corporation, conditional upon the faithful performance of his duties, with one or more sureties and in such amount as may be satisfactory to the Board of Directors. ARTICLE VII CERTIFICATES OF STOCK SECTION 1. Form and Execution of Certificates. The interest of each stockholder of the Corporation shall be evidenced by a certificate or certificates for shares of stock in such form as the Board of Directors may from time to time prescribe. The certificates of stock of each class shall be consecutively numbered and signed by the President, an Executive Vice President or a Vice President and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer of the Corporation, and may be countersigned and registered in such manner as the 9 Board of Directors may by resolution prescribe, and shall bear the corporate seal or a printed or engraved facsimile thereof. Where any such certificate is signed by a transfer agent or transfer clerk acting on behalf of the Corporation, the signatures of any such President, Executive Vice President, Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be facsimiles, engraved or printed. In case any officer or officers, who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates, shall cease to be such officer or officers, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be issued and delivered by the Corporation as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers. In case the corporate seal which has been affixed to, impressed on, or reproduced in any such certificate or certificates shall cease to be the seal of the Corporation before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be issued and delivered by the Corporation as though the seal affixed thereto, impressed thereon or reproduced therein had not ceased to be the seal of the Corporation. Every certificate for shares of stock which are subject to any restriction on transfer pursuant to law, the Certificate of Incorporation, these By-Laws, or any agreement to which the Corporation is a party, shall have the restriction noted conspicuously on the certificate, and shall also set forth, on the face or back, either the full text of the restriction or a statement of the existence of such restriction and (except if such restriction is imposed by law) a statement that the Corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall set forth on its face or back either the full text of the preferences, voting powers, qualifications, and special and relative rights of the shares of each class and series authorized to be issued, or a statement of the existence of such preferences, powers, qualifications and rights, and a statement that the Corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. SECTION 2. Transfer of Shares. The shares of the stock of the Corporation shall be transferred on the books of the Corporation by the holder thereof in person or by his attorney lawfully constituted, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof or guaranty of the authenticity of the signature as the Corporation or its agents may reasonably require. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, save as expressly provided by law or by the Certificate of Incorporation. It shall be the duty of each stockholder to notify the Corporation of his post office address. SECTION 3. Closing of Transfer Books. The stock transfer books of the Corporation may, if deemed appropriate by the Board of Directors, be closed for such length of time not 10 exceeding fifty (50) days as the Board may determine, preceding the date of any meeting of stockholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any issuance, change, conversion or exchange of capital stock shall go into effect, during which time no transfer of stock on the books of the Corporation may be made. SECTION 4. Dates of Record. If deemed appropriate, the Board of Directors may fix in advance a date for such length of time not exceeding sixty (60) days (and, in the case of any meeting of stockholders, not less than ten (10) days) as the Board may determine, preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights or the date when any issuance, change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting or entitled to receive payment of any such dividend or to any such allotment of rights, or to exercise the rights in respect of any such issuance, change, conversion or exchange of capital stock, as the case may be, and in such case only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any record date fixed as aforesaid. If no such record date is so fixed, the record date shall be determined by applicable law. SECTION 5. Lost or Destroyed Certificates. In case of the loss or destruction of any certificate of stock, a new certificate may be issued under the following conditions: (a) The owner of said certificate shall file with the Secretary or any Assistant Secretary of the Corporation an affidavit giving the facts in relation to the ownership, and in relation to the loss or destruction of said certificate, stating its number and the number of shares represented thereby; such affidavit shall be in such form and contain such statements as shall satisfy the President, any Executive Vice President, Vice President, the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer, that said certificate has been accidentally destroyed or lost, and that a new certificate ought to be issued in lieu thereof. Upon being so satisfied, any such officer shall require such owner to furnish the Corporation a bond in such penal sum and in such form as he may deem advisable, and with a surety or sureties approved by him, to indemnify and save harmless the Corporation from any claim, loss, damage or liability which may be occasioned by the issuance of a new certificate in lieu thereof. Upon such bond being so filed, a new certificate for the same number of shares shall be issued to the owner of the certificate so lost or destroyed; and the transfer agent and registrar, if any, of stock shall countersign and register such new certificate upon receipt of a written order signed by any such officer, and thereupon the Corporation will save harmless said transfer agent and registrar in the premises. In case of the surrender of the original certificate, in lieu of which a new certificate has been issued, or the surrender of such new certificate, for cancellation, the bond of indemnity given as a condition of the issue of such new certificate may be surrendered; or (b) The Board of Directors of the Corporation may by resolution authorize and direct any transfer agent or registrar of stock of the Corporation to issue and register respectively from time to time without further action or approval by or on behalf of the Corporation new certificates of stock to replace certificates reported lost, stolen or destroyed upon receipt of an affidavit of loss and bond of indemnity in form and amount and with surety 11 satisfactory to such transfer agent or registrar in each instance or upon such terms and conditions as the Board of Directors may determine. ARTICLE VIII EXECUTION OF DOCUMENTS SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on the Corporation's bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, shall be signed by such officer or officers, or agent or agents, as shall be thereunto authorized from time to time by the Board of Directors, which many in its discretion authorize any such signatures to be facsimile. SECTION 2. Execution of Contracts, Assignments, etc. Unless the Board of Directors shall have otherwise provided generally or in a specific instance, all contracts, agreements, endorsements, assignments, transfers, stock powers, or other instruments shall be signed by the President, any Executive vice President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer. The Board of Directors may, however, in its discretion, require any or all such instruments to be signed by any two or more of such officers, or may permit any or all of such instruments to be signed by such other officer or officers, agent or agents, as it shall be thereunto authorize from time to time. SECTION 3. Execution of Proxies. The President, any Executive Vice President or any Vice President, and the Secretary, the Treasurer, any Assistant Secretary or any Assistant Treasurer, or any other officer designated by the Board of Directors, may sign on behalf of the Corporation proxies to vote upon shares of stock of other companies standing in the name of the Corporation. ARTICLE IX INSPECTION OF BOOKS The Board of Directors shall determine from time to time whether, and if allowed, to what extent and at what time and places and under what conditions and regulations, the accounts and books of the Corporation (except such as may by law be specifically open to inspection) or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account or book or document of the Corporation, except as conferred by the laws of the State of Delaware, unless and until authorized so to do by resolution of the Board of Directors or of the stockholders of the Corporation. ARTICLE X FISCAL YEAR The fiscal year of the Corporation shall be determined from time to time by vote of the Board of Directors. 12 ARTICLE XI AMENDMENTS These By-Laws may be altered, amended, changed or repealed and new By-Laws adopted by the stockholders or by the Board of Directors, in either case at any meeting called for that purpose at which a quorum shall be present. Any by-law, whether made, altered, amended, changed or repealed by the stockholders or the Board of Directors may be repealed, amended, changed, further amended, changed, repealed or reinstated, as the case may be either by the stockholders or by the Board of Directors, as herein provided; except that this Article may be altered, amended, changed or repealed only by vote of the stockholders. ARTICLE XII INDEMNIFICATION SECTION 1. Indemnification. The Corporation shall 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 (other than an action by or in the right of the Corporation) by reason of the fact that he 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 another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contenders or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interest of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he 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 another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. 13 To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in this Section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. SECTION 2. Authorization. Any indemnification under Section 1 of this Article (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 of this Article. Such determination shall be made: (a) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceedings, or (b) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (c) by the stockholders. SECTION 3. Expense Advance. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the manner provided in Section 2 of this Article upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount, unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article. SECTION 4. Nonexclusivity. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. SECTION 5. Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person 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 another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article. SECTION 6. "The Corporation". For the purposes of this Article, references to "the Corporation" include all constituent corporations absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents as well as the resulting or surviving corporation so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to such a constituent corporation if its separate existence had continued. EX-99.(T3B)(10) 27 b42413a1ex99-t3b10.txt BY-LAWS OF ARCH CONNECTICUT VALLEY, INC. EXHIBIT T3B-10 BY-LAWS OF ARCH CONNECTICUT VALLEY, INC. ARTICLE I ARTICLES OF ORGANIZATION The name and purposes of the Corporation shall be as set forth in the Articles of Organization. These By-Laws, the powers of the Corporation and of its Directors and stockholders, and all matters concerning the conduct and regulation of the business of the Corporation shall be subject to such provisions in regard thereto, if any, as are set forth in the Articles of Organization; and the Articles of Organization, as from time to time amended, are hereby made a part of these By-Laws. All references in these By-Laws to the Articles of Organization shall be construed to mean the Articles of Organization of the Corporation as from time to time amended. ARTICLE II ANNUAL MEETING OF STOCKHOLDERS The annual meeting of stockholders shall be held on the third Wednesday in April of each year at such hour as may be fixed by vote of the Board of Directors or, if the Board shall not fix such hour, as may be determined by the President and set forth in the notice thereof, unless that day be a legal holiday at the site of the meeting, in which case the meeting shall be held at the same hour on the next succeeding business day at the site of the meeting. Purposes for which an annual meeting is to be held, in addition to those prescribed by law, by the Articles of Organization and by these By-Laws, may be specified by the President, or by a vote of a majority of the Directors then in office, or by one or more stockholders who are entitled to vote and who hold in the aggregate at least ten per cent (10%) of the capital stock entitled to vote at the meeting. If such annual meeting is omitted on the day herein provided therefor, a special meeting of stockholders may be held in place thereof and any business transacted or elections held at such special meeting shall have the same effect as if transacted or held at the annual meeting, and, in such case, all references in these By-Laws except in this Article II and in Article IV, to the annual meeting of stockholders shall be deemed to refer to such special meeting. Any such special meeting shall be called, and the purposes thereof shall be specified in the notice thereof, as provided in Article III. ARTICLE III SPECIAL MEETINGS OF STOCKHOLDERS A special meeting of stockholders may be called at any time by the President or by a majority of the Directors then in office. A special meeting of stockholders shall be called by the -2- Clerk, or in the case of the death, absence, incapacity or refusal of the Clerk, by any other officer, upon written application of one or more stockholders who hold in the aggregate at least ten percent (10%) of the capital stock entitled to vote at the meeting. Such call shall state the time, place and purpose of the meeting. ARTICLE IV PLACE OF STOCKHOLDERS' MEETINGS The annual meeting of stockholders and any special meeting of stockholders, by whomever called, shall be held at the principal office of the Corporation in Massachusetts, or at such other place in Massachusetts or within the continental limits of the United States of America as may be determined by the Board of Directors (or, in the event such meeting shall have been called upon the application of stockholders, by such stockholders) and stated in the notice thereof. Any adjourned session of any annual or special meeting of stockholders shall be held within the continental limits of the United States at such place as is designated in the vote of adjournment. ARTICLE V NOTICE OF STOCKHOLDERS' MEETINGS A written notice of each annual or special meeting of stockholders, stating the place, date and hour thereof, and the purpose or purposes for which the meeting is to be held, shall: be given at least seven (7) days before the meeting to each stockholder entitled to vote thereat, and to each stockholder who, under the Articles of organization or these By-Laws, is entitled to such notice, by leaving such notice with him or at his residence, or usual place of business, or by mailing it, postage prepaid, addressed to such stockholder at his address as it appears in the records of the Corporation. Such notice shall be given by the Clerk, by any other officer, or by a person designated either by the Clerk or by the person or persons calling the meeting, or by the Board of Directors. No notice of the time, place or purposes of any annual or special meeting of stockholders shall be required to be given to a stockholder if a written waiver of such notice is executed before or after the meeting by such stockholder, or by his attorney thereunto authorized, and filed with the records of the meeting. ARTICLE VI QUORUM OF STOCKHOLDERS At any meeting of stockholders, a quorum for the election of any Director or officer, or for the consideration of any question, shall consist of a majority in interest of all stock issued, outstanding and entitled to vote at such election, or upon such question, respectively; except that if two or more classes of stock are entitled to vote as separate classes upon any question, then, in the case of each such class, a quorum for the consideration of such question shall consist of a majority in interest of all stock of that class issued, outstanding and entitled to vote; and except in any case where a larger quorum is required by law, by the Articles of organization or by these By-Laws. Stock owned by the Corporation, if any, shall not be deemed outstanding for this -3- purpose. In any case, any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting, a plurality of the votes properly cast for any office shall elect to such office, except where a larger vote is required by law, by the Articles of Organization or by these By-Laws, and a majority of the votes properly cast upon any other question (or if two or more classes of stock are entitled to vote as separate classes upon such question, then, in the case of each such class, a majority of the votes of such class properly cast upon the question), except in any case where a larger vote is required by law, by the Articles of organization or by these By-Laws, shall decide the matter. ARTICLE VII PROXIES AND VOTING Except as may be provided in the Articles of Organization, with respect to two or more classes or series of stock, stockholders entitled to vote shall have one vote for each share of stock entitled to vote owned by them and a proportionate vote for each fractional share. No ballot shall be required for such election unless requested by a stockholder present or represented at the meeting and entitled to vote in the election. The Corporation shall not, directly or indirectly, vote upon any share of its own stock. Stockholders entitled to vote may vote either in person or by proxy in writing dated not more than six (6) months before the meeting named therein, which proxies shall be filed with the Clerk of the meeting, or any adjournment thereof, before being voted. Such proxies shall entitle the holders thereof to vote at any adjournment of such meeting, but shall not be valid after the final adjournment of such meeting. Any action to be taken by stockholders may be taken without a meeting if all stockholders entitled to vote on the matter consent to the action by a writing or writings filed with the records of the meetings of stockholders. Such consent shall be treated for all purposes as a vote at a meeting. The Chairman of the Board, if there be one, or in his absence the President, or in the absence of both the Chairman of the Board and the President a Vice President, shall call meetings of the stockholders to order and shall act as chairman thereof. The Clerk of the corporation, if present, shall record the proceedings of all meetings of stockholders and, in his absence, the presiding officer may appoint a clerk pro tempore of the meeting. ARTICLE VIII BOARD OF DIRECTORS A Board of not fewer than one, nor more than five, Directors shall be elected annually (by ballot if so requested by any stockholder entitled to vote) at the annual meeting of stockholders by such stockholders as have the right to vote at such election; provided that, at any time when the Corporation shall have two or more stockholders, the Board of Directors shall -4- consist of not fewer than two persons, and at any time when the Corporation has three or more stockholders, the Board of Directors shall consist of not fewer than three persons. The number of Directors for each corporate year shall initially be fixed by vote at the meeting at which they are elected. Any action which may by law, the Articles of organization or these By-Laws be taken by a majority of the Board of Directors then in office may be taken by the sole Director when and if the Corporation has only one Director. At any time during any year the number of the Board of Directors may be increased by vote of a majority of the Directors then in office. At any time during any year, the whole number of Directors may be increased or reduced by the stockholders at a meeting called for the purpose and, in the case of a reduction, the particular directorships which shall terminate shall be determined by the stockholders, in each case by vote of a majority of the stock outstanding and entitled to vote for the election of Directors, or, in the case of a reduction which involves the termination of the directorship of an incumbent Director, by such larger vote, if any, as would be required to remove such incumbent from office. Each newly-created directorship resulting from any increase in the number of Directors may be filled in the manner provided in Article XIX. No Director need be a stockholder except as may be otherwise provided by law, by the Articles of Organization or these ByLaws. Each Director shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, or until he sooner dies, resigns or is removed. ARTICLE IX POWERS OF DIRECTORS The business, property and affairs of the Corporation shall be managed by, and be under the control and direction of, the Board of Directors, which shall have and may exercise all the powers of the Corporation except such as are conferred upon the stockholders or other officers by law, by the Articles of Organization or by these By-Laws. Except as may be otherwise specifically provided by law or by vote of the stockholders, the Board of Directors is expressly authorized to issue, from time to time, all or any portion or portions of the capital stock of the Corporation of any class which may have been authorized but not issued or otherwise reserved for issue, to such person or persons and for such consideration (but not less than the par value thereof in case of stock having *par value), whether cash, tangible or intangible property, good will, services or expenses, as they may deem best, without first offering (for subscription or sale) such authorized but unissued stock to any present or future stockholders of the Corporation, and generally in their absolute discretion to determine the terms and manner of any disposition of such authorized but unissued stock. The Board of Directors may delegate from time to time to any committee, officer or agent such powers and authority as the law, the Articles of Organization and these By-Laws may permit. The Board of Directors in its discretion may appoint and remove and determine the -5- compensation and duties in addition to those fixed by law, the Articles of Organization and these By-Laws, of all the officers, representatives, agents, employees, and servants of the Corporation. The Board of Directors shall have power to fix a reasonable compensation or fee for the attendance of their members at meetings of the Board. The Board of Directors shall have the power, from time to time, to fix and determine and to vary the amount of working capital of the Corporation and to direct and determine the use and disposition of any surplus or net profits of the Corporation over and above the amount contributed as, or constituting, paid-in capital. The Board of Directors, in its discretion, shall, from time to time, declare what, if any, dividends shall be paid on the stock of the Corporation out of the remaining surplus or net profits, and any dividend so declared shall be payable at such time or times as the Board shall determine. ARTICLE X COMMITTEES OF DIRECTORS The Board of Directors, by vote of a majority of the Directors then in office, may at any time elect from its own number an executive committee and/or one or more other committees, to consist of not fewer than three members, and may from time to time designate or alter, within the limits permitted by this Article X, the duties and powers of such committees or change their membership, and may at any time abolish such committees or any of them. Any committee shall be vested with such powers of the Board of Directors as the Board may determine in the vote establishing such committee or in a subsequent vote of a majority of directors then in office, provided, however, that no such committee shall have any power prohibited by law, or the Articles of organization, or the power (a) to change the principal office of the Corporation; (b) to amend or authorize the amendment of the Articles of Organization or these By-Laws; (c) to issue stock; (d) to establish and designate series of stock, or fix and determine the relative rights and preferences of any series of stock; (e) to elect officers required by law, the Articles of Organization or these By-Laws to be elected by stockholders or Directors, or to fill vacancies in any such office; (f) to change the number of the Board of Directors or to fill vacancies in the Board of Directors; (g) to remove officers or Directors from office; (h) to authorize the payment of any dividend or distribution to stockholders; (i) to authorize the reacquisition for value of stock of the Corporation; -6- (j) to authorize a merger or consolidation of the Corporation or a sale or other disposition of all or substantially all the property and business of the Corporation; or (k) to authorize the liquidation or dissolution of the Corporation; and provided further, that the fact that a particular power appears in the foregoing enumeration of powers denied to committees of the Board of Directors shall not be construed to over-ride by implication any other provision of the Articles of Organization or these By-Laws limiting or denying to the Board of Directors the right to exercise such power. Each member of a committee shall hold office until the first meeting of the Board of Directors following the next annual meeting of stockholders (or until such other time as the Board of Directors may determine, either in the vote establishing the committee or at the election of such member) and until his successor is elected and qualified, or until he sooner dies, resigns, is removed, is replaced by change of membership or becomes disqualified by ceasing to be a Director, or until the committee is sooner abolished by the Board of Directors. A majority of the members of any committee then in office, but not fewer than two, shall constitute a quorum for the transaction of business, but any meeting may be adjourned from time to time by a majority of the votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice. Each committee may make rules not inconsistent herewith for the holding and conduct of its meetings, but unless otherwise provided in such rules its meetings shall be held and conducted in the same manner, as nearly as may be, as is provided in these By-Laws for meetings of the Board of Directors. The Board of Directors shall have the power to rescind any vote or resolution of any committee; provided, however, that no rights of third parties shall be impaired by such rescission. ARTICLE XI MEETINGS OF THE BOARD OF DIRECTORS; ACTION WITHOUT A MEETING Regular meetings of the Board of Directors may be held without call or notice at such places and at such times as the Board may from time to time determine; provided, however, that reasonable notice of such determination and of any changes therein is given to each member of the Board then in office. A regular meeting of the Board of Directors for the purpose of electing officers and agents may be held without call or notice immediately after and at the same place as the annual meeting of stockholders, and, if held upon due call or notice, for such other and further purposes as may be specified in such call or notice. Special meetings of the Board of Directors may be held at any time and at any place when called by the President, the Treasurer, the Chairman of the Board, if there be one, or two or more Directors, reasonable notice thereof being given to each Director by the Secretary, or, if there be no Secretary, by the Clerk, or, in the case of death, absence, incapacity or refusal of the Secretary (or the Clerk, as the case may be), by the officer or Directors calling the meeting. In any case, it shall be deemed sufficient notice to a Director to send notice by mail at least forty-eight (48) hours, or by telegram at least twenty-four (24) hours, before the meeting, addressed to -7- him at his usual or last known business or residence address; or to give notice to him in person, either by telephone or by handing him a written notice, at least twenty-four (24) hours before the meeting. Notwithstanding the foregoing, notice of a meeting need not be given to any Director if a written waiver of notice, executed by him before or after the meeting, is filed with the records of the meeting, or to any Director who attends the meeting without protesting prior thereto, or at its commencement, the lack of notice to him. Any action required or permitted to be taken at any meeting of the Directors may be taken without a meeting if a written consent thereto is signed by all the Directors and such written consent is filed with the records of the meetings of the Directors. Such consent shall be treated as a vote at a meeting for all purposes. Such consents may be executed in one or more counterparts and not every Director need sign the same counterpart. ARTICLE XII QUORUM OF DIRECTORS At any meeting of the Board of Directors, a quorum for any election, or for the consideration of any question, shall consist of a majority of the Directors then in office, but any meeting may be adjourned from time to time by a majority of the votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting, the votes of a majority of the Directors present shall be requisite and sufficient for election to any office, and a majority of the Directors present shall decide any question brought before such meeting except in any case where a larger vote "is required by law, by the Articles of Organization or by these By-Laws. ARTICLE XIII OFFICERS AND AGENTS The officers of the Corporation shall be a President, a Treasurer, a Clerk, and such other officers, which may include a Chairman of the Board, a Secretary, a Controller, one or more Vice Presidents, Assistant Treasurers, Assistant Clerks, or Assistant Controllers, as the Board of Directors may, in its discretion, elect or appoint. The Corporation may also have such agents, if any, as the Board of Directors may, in its discretion, appoint. The President need not be a Director. The Clerk shall be a resident of Massachusetts unless the Corporation has a resident agent appointed for the purpose of receiving service of process. So far as is permitted by law, any two or more offices may be held by the same person. Subject to law, to the Articles of organization and the other provisions of these By-Laws, each officer shall have, in addition to the duties and powers herein set forth, such duties and powers as are commonly incident to his office and as the Board of Directors may from time to time designate. The President, Treasurer, and Clerk (and the Secretary and Chairman of the Board, if, as the case may be, there be one) shall be elected annually by the Board of Directors at its first -8- meeting following the annual meeting of stockholders, by vote of a majority of the full Board of Directors. Such other offices of the Corporation as may be created in accordance with these By-Laws may be filled at such meeting by vote of a majority of the full Board of Directors or any other time by vote of a majority of the Directors then in office. Each officer shall (subject to Article XVIII of these ByLaws) hold office until the first meeting of the Board of Directors following the next annual meeting of stockholders and until his successor is elected or appointed and qualified, or until he sooner dies, resigns, is removed, or becomes disqualified. Each agent shall retain his authority at the pleasure of the Board of Directors. Any officer, employee, or agent of the Corporation may be required, as and if determined by the Board of Directors, to give bond for the faithful performance of his duties. ARTICLE XIV PRESIDENT AND VICE PRESIDENTS; CHAIRMAN OF THE BOARD The President shall be the chief executive officer of the Corporation and shall have general charge and supervision of the business, property and affairs of the Corporation and such other powers and duties as the Board of Directors may prescribe, subject to the control of the Board of Directors, unless otherwise provided by law, the Articles of organization, these By-Laws or by specific vote of the Board of Directors. Unless a Chairman of the Board shall have been elected, the President shall preside at all meetings of stockholders and of the Board of Directors at which he is present except as otherwise voted by the Board of Directors. Any Vice President shall have such duties and powers as shall be designated from time to time by the Board of Directors or by the President, and, in any case, shall be responsible to and shall report to the President. In the absence or disability of the President, the Vice President or, if there be more than one, the Vice Presidents in the order of their seniority or as otherwise designated by the Board of Directors, shall have the powers and duties of the President. The Chairman of the Board, if there be one, shall be a member of the Board of Directors and shall preside at its meetings and at the meetings of the stockholders. He shall keep himself informed of the administration of the affairs of the Corporation, shall advise and counsel with the President, and, in the President's absence, with other officers of the Corporation, and shall perform such other duties as may from time to time be assigned to him by the Board of Directors. ARTICLE XV TREASURER AND ASSISTANT TREASURER The Treasurer shall be the chief financial officer of the Corporation and shall be in charge of its funds and the disbursements thereof, subject to the President and the Board of Directors, and shall have such duties and powers as are commonly incident to the office of a corporate treasurer and such other duties and powers as may be prescribed from time to time by the Board of Directors or by the President. If no Controller is elected, the Treasurer shall also have the -9- duties and powers of the Controller as provided in these By-Laws. The Treasurer shall be responsible to and shall report to the Board of Directors, but in the ordinary conduct of the Corporation's business, shall be under supervision of the President. Any Assistant Treasurer shall have such duties and powers as shall be prescribed from time to time by the Board of Directors or by the Treasurer, and shall be responsible to and shall report to the Treasurer. In the absence or disability of the Treasurer, the Assistant Treasurer or, if there be more than one, the Assistant Treasurers in their order of seniority or as otherwise designated by the Board of Directors shall have the powers and duties of the Treasurer. ARTICLE XVI CONTROLLER If a Controller is elected, he shall be the chief accounting officer of the Corporation and shall be in charge of its books of account and accounting records and of its accounting procedures, and shall have such duties and powers as are commonly incident to the office of a corporate controller and such other duties and powers as may be prescribed from time to time by the Board of Directors or by the President. The Controller shall be responsible to and shall report to the Board of Directors, but in the ordinary conduct of the Corporation's business, shall be under the supervision of the President. Any Assistant Controller shall have duties and powers as shall be prescribed from time to time by the Board of Directors or by the Controller, and shall be responsible to and shall report to the Controller. In the absence or disability of the Controller, the Assistant Controller or, if there be more than one, Assistant Controllers in their order of seniority or as otherwise designated by the Board of Directors, shall have the powers and duties of the Controller. ARTICLE XVII CLERK; SECRETARY; ASSISTANT CLERK AND ASSISTANT SECRETARY The Clerk shall record all proceedings of the stockholders in books to be kept therefor, and shall have custody of the Corporation's records, documents and valuable papers. In the absence of the Clerk from any such meeting, the Secretary, if any, may act as temporary clerk, and shall record the proceedings thereof in the aforesaid books, or a temporary clerk may be chosen by vote of the meeting. The Clerk shall also keep, or cause to be kept, the stock transfer records of the Corporation which shall contain a complete list of the names and addresses of all stockholders and the amount of stock held by each. Unless the Board of Directors shall otherwise designate, the Clerk or, in his absence, the Assistant Clerk, if any, shall have custody of the corporate seal and be responsible for affixing it to such documents as may be required to be sealed. -10- The Clerk shall have such other duties and powers as are commonly incident to the office of a corporate clerk, and such other duties and powers as may be prescribed from time to time by the Board of Directors or by the President. If no Secretary is elected, the Clerk shall also record all proceedings of the Board of Directors and of any meetings of any committees of the Board, and, in his absence from any such meeting, a temporary clerk shall be chosen who shall record the proceedings thereof. The Secretary shall attend all meetings of the Board of Directors and shall record the proceedings thereat in books provided for that purpose which shall be open during business hours to the inspection of any Director. He shall notify the Directors of the meetings in accordance with these By-Laws and shall have and may exercise such other powers and duties as the Board of Directors may prescribe. In the absence of the Secretary at a meeting of the Board of Directors, a temporary secretary shall be chosen. Any Assistant Clerk and any Assistant Secretary shall have such duties and powers as shall from time to time be designated by the Board of Directors or the Clerk or the Secretary, respectively, and shall be responsible to and shall report to the Clerk and the Secretary, respectively. ARTICLE XVIII RESIGNATIONS AND REMOVALS Any Director or officer may resign at any time by delivering his resignation in writing to the President, the Clerk or the Secretary, or to a meeting of the Board of Directors. The stockholders may, by vote of a majority in interest of the stock issued and outstanding and entitled to vote at an election of Directors, remove any Director or Directors from office with or without cause; provided, however, that the Directors of a class elected by a particular class of stockholders may be removed only by the vote of the holders of a majority of the shares of such class. The Board of Directors may, by vote of the majority of the Directors in office, remove any Director from office with cause, or remove any officer from office, with or without cause. The Board of Directors may, at any time, by vote of a majority of the Directors present and voting, terminate or modify the authority of any agent. No Director or officer resigning and (except where a right to receive compensation for a definite future period shall be expressly provided in a written agreement with the Corporation, duly approved by the Board of Directors) no Director or officer removed shall have any right to any compensation as such Director or officer for any period following his resignation or removal, or any right to damages on account of such removal, whether his compensation be by the month, by the year or otherwise. Any Director or officer may be removed for cause only after reasonable notice and opportunity to be heard before the body proposing to remove him. ARTICLE XIX VACANCIES -11- Any vacancy in the Board of Directors, however occurring, including a vacancy resulting from the enlargement of the Board, and any vacancy in any other office, may be filled by the stockholders or, in the absence of stockholder action, by a majority of the Directors then in office. If the office of any member of any committee or of any other office becomes vacant, the Board of Directors may elect or appoint a successor or successors by vote of a majority of the Directors then in office. Each successor as a Director or officer shall hold office for the unexpired term and until his successor shall be elected or appointed and qualified, or until he sooner dies, resigns, is removed or becomes disqualified. The Board of Directors shall have and may exercise all its powers, notwithstanding the existence of one or more vacancies in its number as fixed by either the stockholders or the Directors. ARTICLE XX CAPITAL STOCK The authorized amount of the capital stock and the par value, if any, of the shares shall be as fixed in the Articles of Organization. At all times when there are two or more classes of stock, the several classes of stock shall conform to the description and terms, and have the respective preferences, voting powers, restrictions and qualifications set forth in the Articles of Organization. ARTICLE XXI CERTIFICATE OF STOCK Each stockholder shall be entitled to a certificate of the capital stock of the Corporation owned by him, in such form as shall, in conformity to law, be prescribed from time to time by the Board of Directors. Such certificate shall be signed by either the President or a Vice President, and by either the Treasurer or an Assistant Treasurer, and may, but need not be, sealed with the corporate seal; but when any such certificate is signed by a transfer agent or by a registrar other than a Director, officer, or employee of the Corporation, the signature of the President or a vice President and of the Treasurer or an Assistant Treasurer of the Corporation, or either or both such signatures and such seal upon such certificate, may be facsimile. If any officer who has signed, or whose facsimile signature has been placed on, any such certificate shall have ceased to be such officer before such certificate is issued, the certificate may be issued by the Corporation with the same effect as if he were such officer at the time of issue. Every certificate for shares of stock which are subject to any restriction on transfer pursuant to law, the Articles of Organization, these By-Laws, or any agreement to which the Corporation is a party, shall have the restriction noted conspicuously on the certificate, and shall also set forth, on the face or back, either the full text of the restriction or a statement of the existence of such restriction and (except if such restriction is imposed by law) a statement that -12- the Corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall set forth on its face or back either the full text of the preferences, voting powers, qualifications, and special and relative rights of the shares of each class and series authorized to be issued, or a statement of the existence of such Preferences, powers, qualifications and rights, and a statement that the Corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. ARTICLE XXII TRANSFER OF SHARES OF STOCK Subject to the restrictions, if any, stated or noted on the stock certificates, shares of stock may be transferred on the books of the Corporation only by surrender to the Corporation, or its transfer agent, of the certificate therefor, properly endorsed or accompanied by a written assignment or power of attorney properly executed, with all requisite stock transfer stamps affixed, and with such proof of the authenticity and effectiveness of the signature as the Corporation or its transfer agent shall reasonably require. Except as may be otherwise required by law, the Articles of organization or these By-Laws, the Corporation shall have the right to treat the person registered on the stock transfer books as the owner of any shares of the Corporation's stock as the owner-in-fact thereof for all purposes, including the payment of dividends, liability for assessments, the right to vote with respect thereto and otherwise, and accordingly shall not be bound to recognize any attempted transfer, pledge or other disposition thereof, or any equitable or other claim with respect thereto, whether or not it shall have actual or other notice thereof, until such shares shall have been transferred on the Corporation's books in accordance with these By-Laws. It shall be the duty of each stockholder to notify the Corporation of his post office address. ARTICLE XXIII TRANSFER AGENTS AND REGISTRARS; FURTHER REGULATIONS The Board of Directors may appoint one or more banks, trust companies or corporations doing a corporate trust business, in good standing under the laws of the United States or any state therein, to act as the Corporation's transfer agent and/or registrar for shares of capital stock, and the Board may make such other and further regulations, not inconsistent with applicable law, as it may deem expedient concerning the issue, transfer and registration of capital stock and stock certificates of the Corporation. ARTICLE XXIV LOSS OF CERTIFICATES In the case of the alleged loss, destruction, or wrongful taking of a certificate of stock, a duplicate certificate may be issued in place thereof upon receipt by the Corporation of such evidence of loss and such indemnity bond, with or without surety, as shall be satisfactory to the -13- President and the Treasurer, or otherwise upon such terms, consistent with law, as the Board of Directors may prescribe. ARTICLE XXV RECORD DATE The Directors may fix in advance a time, which shall not be more than sixty days before the date of any meeting of stockholders or the date for the payment of any dividend or the making of any distribution to stockholders, or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the stockholders having the right to notice of and to vote at, such meeting and any adjournment thereof, or the right to receive such dividend or distribution, or the right to give such consent or dissent, and in such case, only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the Corporation after the record date; or, without fixing such record date, the Directors may, for any such purposes, close the transfer books for all or any part of such period. ARTICLE XXVI SEAL The seal of the Corporation shall, subject to alteration by the Board of Directors, consist of a flat-faced circular die with the word "Massachusetts", together with the name of the Corporation and the year of incorporation, cut or engraved thereon. An impression of the seal impressed upon the original copy of these By-Laws shall be deemed conclusively to be the seal adopted by the Board of Directors. ARTICLE XXVII EXECUTION OF PAPERS Except as the Board of Directors may generally or in particular cases otherwise authorize or direct, all deeds, leases, transfers, contracts, proposals, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the Corporation shall be signed or endorsed on behalf of the Corporation by its President or by one of its Vice Presidents or by its Treasurer. ARTICLE XXVIII FISCAL YEAR Except as from time to time provided by the Board of Directors, the fiscal year of the Corporation shall end on the December 31 of each year. ARTICLE XXIX VOTING STOCK IN OTHER CORPORATIONS -14- Unless otherwise ordered by the Board of Directors, the President or, in the case of his absence or failure to act, the Treasurer, shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meetings of stockholders of any corporation in which this Corporation may hold stock, and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such stock and which, as the owner thereof, the Corporation might have possessed and exercised if present. The Board of Directors, by resolution from time to time, or, in the absence thereof, the President, may confer like powers upon any other person or persons as attorneys and proxies of the Corporation. ARTICLE XXX CORPORATE RECORDS The original or attested copies of the Articles of Organization, By-Laws, and records of all meetings of the incorporators and stockholders, and the stock and transfer records which shall contain the names of all stockholders and the record address and the amount of stock held by each, shall be kept in Massachusetts either at the principal office of the Corporation or at an office of its transfer agent or of the Clerk. Said copies and records need not all be kept in the same office. They shall be available at all reasonable times for inspection by any stockholder for any. proper purpose, but not to secure a list of the stockholders for the purpose of selling said list, or copies thereof, or of using the same for a purpose other than in the present interest of the applicant, as a stockholder, relative to the affairs of the Corporation. ARTICLE XXXI AMENDMENTS These By-Laws may be altered, amended or repealed, in whole in part at any time by vote of the stockholders. The Board of Directors, by a majority vote of Directors at the time in office, may alter, amend or repeal these By-Laws in whole or in part, except with respect to any provision hereof which by law, the Articles of Organization or these By-Laws requires action by the stockholders; provided that not later than the time of giving notice of the meeting of stockholders next following the alteration, amendment or repeal of these By-Laws, in whole or in part, notice thereof, stating the substance of such action shall be given to all stockholders entitled to vote on amending these By-Laws. By-Laws adopted by the Directors may be amended by the stockholders. EX-99.(T3B)(11) 28 b42413a1ex99-t3b11.txt BY-LAWS OF BENBOW INVESTMENTS., INC. Exhibit T3B-11 BY-LAWS OF BENBOW INVESTMENTS, INC. BY-LAWS OF BENBOW INVESTMENTS, INC. ARTICLE 1 - STOCKHOLDERS 1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such place within or without the State of Delaware as may be designated from time to time by the Board of Directors or the President or, if not so designated, at the registered office of the corporation. 1.2 ANNUAL MEETING. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date to be fixed by the Board of Directors or the President (which date shall not be a legal holiday in the place where the meeting is to be held) at the time and place to be fixed by the Board of Directors or the President and stated in the notice of the meeting. If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient. If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual meeting, and in such case all references in these By-laws to the annual meeting of the stockholders shall be deemed to refer to such special meeting. 1.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at any time by the President or by the Board of Directors. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. 1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The notices of all meetings shall state the place, date and hour of the meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation. 1.5 VOTING LIST. The officer who has charge of the stock ledger of the corporation shall prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. 1 Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, at a place within the city where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be inspected by any stockholder who is present. 1.6 QUORUM. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business. 1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned to any other time and to any other place at which a meeting of stockholders may be held under these By-laws by the stockholders present or represented at the meeting and entitled to vote, although less than a quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as Secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. 1.8 VOTING AND PROXIES. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided in the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action in writing without a meeting, may vote or express such consent or dissent in person or may authorize another person or persons to vote or act for him by written proxy executed by the stockholder or his authorized agent and delivered to the Secretary of the corporation. No such proxy shall be voted or acted upon after three years from the date of its execution, unless the proxy expressly provides for a longer period. 1.9 ACTION AT MEETING. When a quorum is present at any meeting, the holders of shares of stock representing a majority of the votes cast on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of shares of stock of that class representing a majority of the votes cast on a matter) shall decide any matter to be voted upon by the stockholders at such meeting, except when a different vote is required by express provision of law, the Certificate of Incorporation or these By-Laws. When a quorum is present at any meeting, any election by stockholders shall be determined by a plurality of the votes cast on the election. 1.10 ACTION WITHOUT MEETING. Any action required or permitted to be taken at any annual or special meeting of stockholders of the corporation may be taken without a meeting, 2 without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE 2 - DIRECTORS 2.1 GENERAL POWERS. The business and affairs of the corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise provided by law or the Certificate of Incorporation. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled. 2.2 NUMBER; ELECTION AND QUALIFICATION. The number of directors which shall constitute the whole Board of Directors shall be determined by resolution of the stockholders or the Board of Directors, but in no event shall be less than one. The number of directors may be decreased at any time and from time to time either by the stockholders or by a majority of the directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more directors. The directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be stockholders of the corporation. 2.3 ENLARGEMENT OF THE BOARD. The number of directors may be increased at any time and from time to time by the stockholders or by a majority of the directors then in office. 2.4 TENURE. Each director shall hold office until the next annual meeting and until his successor is elected and qualified, or until his earlier death, resignation or removal. 2.5 VACANCIES. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office, and a director chosen to fill a position resulting from an increase in the number of directors shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, or until his earlier death, resignation or removal. 3 2.6 RESIGNATION. Any director may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. 2.7 REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders. 2.8 SPECIAL MEETINGS. Special meetings of the Board of Directors may be held at any time and place, within or without the State of Delaware, designated in a call by the Chairman of the Board, President, two or more directors, or by one director in the event that there is only a single director in office. 2.9 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by giving notice to such director in person or by telephone at least 48 hours in advance of the meeting, (ii) by sending a telegram or telex, or delivering written notice by hand, to his last known business or home address at least 48 hours in advance of the meeting, or (iii) by mailing written notice to his last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting. 2.10 MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors or any members of any committee designated by the directors may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. 2.11 QUORUM. A majority of the total number of the whole Board of Directors shall constitute a quorum at all meetings of the Board of Directors. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such director so disqualified; provided, however, that in no case shall less than one-third (1/3) of the number so fixed constitute a quorum. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present. 4 2.12 ACTION AT MEETING. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation or these By-Laws. 2.13 ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing, and the written consents are filed with the minutes of proceedings of the Board or committee. 2.14 REMOVAL. Except as otherwise provided by the General Corporation Law of Delaware, any one or more or all of the directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only by vote of the holders of a majority of the outstanding shares of such class or series. 2.15 COMMITTEES. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of the General Corporation Law of the State of Delaware, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of Directors. 2.16 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from serving the corporation or any of its parent or subsidiary corporations in any other capacity and receiving compensation for such service. 5 ARTICLE 3 - OFFICERS 3.1 ENUMERATION. The officers of the corporation shall consist of a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including a Chairman of the Board, a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. 3.2 ELECTION. The President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting. 3.3 QUALIFICATION. No officer need be a stockholder. Any two or more offices may be held by the same person. 3.4 TENURE. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, each officer shall hold office until his successor is elected and qualified, unless a different term is specified in the vote choosing or appointing him, or until his earlier death, resignation or removal. 3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of directors then in office. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following his resignation or removal, or any right to damages on account of such removal, whether his compensation be by the month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the corporation. 3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of his predecessor and until his successor is elected and qualified, or until his earlier death, resignation or removal. 3.7 CHAIRMAN OF THE BOARD AND VICE-CHAIRMAN OF THE BOARD. The Board of Directors may appoint a Chairman of the Board and may designate the Chairman of the Board as Chief 6 Executive Officer. If the Board of Directors appoints a Chairman of the Board, he shall perform such duties and possess such powers as are assigned to him by the Board of Directors. If the Board of Directors appoints a Vice-Chairman of the Board, he shall, in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board and shall perform such other duties and possess such other powers as may from time to time be vested in him by the Board of Directors. 3.8 PRESIDENT. The President shall, subject to the direction of the Board of Directors, have general charge and supervision of the business of the corporation. Unless otherwise provided by the Board of Directors, he shall preside at all meetings of the stockholders and, if he is a director, at all meetings of the Board of Directors. Unless the Board of Directors has designated the Chairman of the Board or another officer as Chief Executive Officer, the President shall be the Chief Executive Officer of the corporation. The President shall perform such other duties and shall have such other powers as the Board of Directors may from time to time prescribe. 3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the President may from time to time prescribe. In the event of the absence, inability or refusal to act of the President, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors. 3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the President may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents. Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary. 7 In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting. 3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned to him by the Board of Directors or the President. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these By-laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation. The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the President or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer. 3.12 SALARIES. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors. ARTICLE 4 - CAPITAL STOCK 4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any unissued balance of the authorized capital stock of the corporation held in its treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors may determine. 4.2 CERTIFICATES OF STOCK. Every holder of stock of the corporation shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, certifying the number and class of shares owned by him in the corporation. Each such certificate shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the certificate may be a facsimile. 8 Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, the By-laws, applicable securities laws or any agreement among any number of shareholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, 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 shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests a copy of the full text 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. 4.3 TRANSFERS. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of stock may be transferred on the books of the corporation by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these By-laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-laws. 4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar. 4.5 RECORD DATE. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or to express consent (or dissent) to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights in 9 respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 10 days after the date of adoption of a record date for a written consent without a meeting, nor more than 60 days prior to any other action to which such record date relates. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is properly delivered to the corporation. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. ARTICLE 5 - GENERAL PROVISIONS 5.1 FISCAL YEAR. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the corporation shall begin on the first day of January in each year and end on the last day of December in each year. 5.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be approved by the Board of Directors. 5.3 WAIVER OF NOTICE. Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these By-laws, a waiver of such notice either in writing signed by the person entitled to such notice or such person's duly authorized attorney, or by telegraph, cable or any other available method, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such notice. 5.4 VOTING OF SECURITIES. Except as the directors may otherwise designate, the President or Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of substitution) at, any 10 meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation. 5.5 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action. 5.6 CERTIFICATE OF INCORPORATION. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time. 5.7 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction between the corporation and one or more of the directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of the directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or a committee of the Board of Directors which authorizes the contract or transaction or solely because his or their votes are counted for such purpose, if: (1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee of the Board of Directors, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. 5.8 SEVERABILITY. Any determination that any provision of these By-laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these By-laws. 11 5.9 PRONOUNS. All pronouns used in these By-laws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. ARTICLE 6 - AMENDMENTS 6.1 BY THE BOARD OF DIRECTORS. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present. 6.2 BY THE STOCKHOLDERS. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any regular meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new by-laws shall have been stated in the notice of such special meeting. 12 EX-99.(T3B)(12) 29 b42413a1ex99-t3b12.txt BY-LAWS OF MOBILEMEDIA COMMUNICATIONS, INC Exhibit T3B-12 BYLAWS OF MOBILEMEDIA COMMUNICATIONS, INC. BYLAWS OF MOBILEMEDIA COMMUNICATIONS, INC. ARTICLE 1 - STOCKHOLDERS 1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such place within or without the State of Delaware as may be designated from time to time by the Board of Directors or the President or, if not so designated, at the registered office of the corporation. 1.2 ANNUAL MEETING. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date to be fixed by the Board of Directors or the President (which date shall not be a legal holiday in the place where the meeting is to be held) at the time and place to be fixed by the Board of Directors or the President and stated in the notice of the meeting. If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient. If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual meeting, and in such case all references in these Bylaws to the annual meeting of the stockholders shall be deemed to refer to such special meeting. 1.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at any time by the President or by the Board of Directors. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. 1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The notices of all meetings shall state the place, date and hour of the meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation. 1.5 VOTING LIST. The officer who has charge of the stock ledger of the corporation shall prepare, at least 10 days before every meeting of stockholders, a complete list of the -1- stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, at a place within the city where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be inspected by any stockholder who is present. 1.6 QUORUM. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business. 1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned to any other time and to any other place at which a meeting of stockholders may be held under these Bylaws by the stockholders present or represented at the meeting and entitled to vote, although less than a quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as Secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. 1.8 VOTING AND PROXIES. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided in the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action in writing without a meeting, may vote or express such consent or dissent in person or may authorize another person or persons to vote or act for him by written proxy executed by the stockholder or his authorized agent and delivered to the Secretary of the corporation. No such proxy shall be voted or acted upon after three years from the date of its execution, unless the proxy expressly provides for a longer period. 1.9 ACTION AT MEETING. When a quorum is present at any meeting, the holders of shares of stock representing a majority of the votes cast on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of shares of stock of that class representing a majority of the votes cast on a matter) shall decide any matter to be voted upon by the stockholders at such meeting, except when a different vote is required by express provision of law, the Certificate of Incorporation or these Bylaws. When a quorum is present at any meeting, any election by stockholders shall be determined by a plurality of the votes cast on the election. -2- 1.10 ACTION WITHOUT MEETING. Any action required or permitted to be taken at any annual or special meeting of stockholders of the corporation may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE 2 - DIRECTORS 2.1 GENERAL POWERS. The business and affairs of the corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise provided by law or the Certificate of Incorporation. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled. 2.2 NUMBER; ELECTION AND QUALIFICATION. The number of directors which shall constitute the whole Board of Directors shall be determined by resolution of the stockholders or the Board of Directors, but in no event shall be less than one. The number of directors may be decreased at any time and from time to time either by the stockholders or by a majority of the directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more directors. The directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be stockholders of the corporation. 2.3 ENLARGEMENT OF THE BOARD. The number of directors may be increased at any time and from time to time by the stockholders or by a majority of the directors then in office. 2.4 TENURE. Each director shall hold office until the next annual meeting and until his successor is elected and qualified, or until his earlier death, resignation or removal. 2.5 VACANCIES. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office, and a director chosen to fill a position resulting from an increase in the number of directors shall hold office until the next annual meeting of -3- stockholders and until his successor is elected and qualified, or until his earlier death, resignation or removal. 2.6 RESIGNATION. Any director may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. 2.7 REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders. 2.8 SPECIAL MEETINGS. Special meetings of the Board of Directors may be held at any time and place, within or without the State of Delaware, designated in a call by the Chairman of the Board, President, two or more directors, or by one director in the event that there is only a single director in office. 2.9 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by giving notice to such director in person or by telephone at least 48 hours in advance of the meeting, (ii) by sending a telegram, telecopy or telex, or delivering written notice by hand, to his last known business or home address at least 48 hours in advance of the meeting, or (iii) by mailing written notice to his last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting. 2.10 MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors or any members of any committee designated by the directors may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. 2.11 QUORUM. A majority of the total number of the whole Board of Directors shall constitute a quorum at all meetings of the Board of Directors. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such director so disqualified; provided, however, that in no case shall less than one-third (1/3) of the number so fixed constitute a quorum. In the absence of a quorum at any -4- such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present. 2.12 ACTION AT MEETING. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation or these Bylaws. 2.13 ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing, and the written consents are filed with the minutes of proceedings of the Board or committee. 2.14 REMOVAL. Except as otherwise provided by the General Corporation Law of Delaware, any one or more or all of the directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only by vote of the holders of a majority of the outstanding shares of such class or series. 2.15 COMMITTEES. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of the General Corporation Law of the State of Delaware, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of Directors. 2.16 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from -5- serving the corporation or any of its parent or subsidiary corporations in any other capacity and receiving compensation for such service. -6- ARTICLE 3 - OFFICERS 3.1 ENUMERATION. The officers of the corporation shall consist of a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including a Chairman of the Board, a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. 3.2 ELECTION. The President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting. 3.3 QUALIFICATION. No officer need be a stockholder. Any two or more offices may be held by the same person. 3.4 TENURE. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until his successor is elected and qualified, unless a different term is specified in the vote choosing or appointing him, or until his earlier death, resignation or removal. 3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of directors then in office. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following his resignation or removal, or any right to damages on account of such removal, whether his compensation be by the month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the corporation. 3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of his predecessor and until his successor is elected and qualified, or until his earlier death, resignation or removal. -7- 3.7 CHAIRMAN OF THE BOARD AND VICE-CHAIRMAN OF THE BOARD. The Board of Directors may appoint a Chairman of the Board and may designate the Chairman of the Board as Chief Executive Officer. If the Board of Directors appoints a Chairman of the Board, he shall perform such duties and possess such powers as are assigned to him by the Board of Directors. If the Board of Directors appoints a Vice-Chairman of the Board, he shall, in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board and shall perform such other duties and possess such other powers as may from time to time be vested in him by the Board of Directors. 3.8 PRESIDENT. The President shall, subject to the direction of the Board of Directors, have general charge and supervision of the business of the corporation. Unless otherwise provided by the Board of Directors, he shall preside at all meetings of the stockholders and, if he is a director, at all meetings of the Board of Directors. Unless the Board of Directors has designated the Chairman of the Board or another officer as Chief Executive Officer, the President shall be the Chief Executive Officer of the corporation. The President shall perform such other duties and shall have such other powers as the Board of Directors may from time to time prescribe. 3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the President may from time to time prescribe. In the event of the absence, inability or refusal to act of the President, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors. 3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the President may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents. Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be -8- more than one, the Assistant Secretaries in the order determined by the Board of Directors), shall perform the duties and exercise the powers of the Secretary. In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting. 3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned to him by the Board of Directors or the President. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these Bylaws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation. The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the President or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors), shall perform the duties and exercise the powers of the Treasurer. 3.12 SALARIES. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors. ARTICLE 4 - CAPITAL STOCK 4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any unissued balance of the authorized capital stock of the corporation held in its treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors may determine. 4.2 CERTIFICATES OF STOCK. Every holder of stock of the corporation shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, certifying the number and class of shares owned by him in the corporation. Each such certificate -9- shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the certificate may be a facsimile. Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, the Bylaws, applicable securities laws or any agreement among any number of shareholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, 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 shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests a copy of the full text 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. 4.3 TRANSFERS. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of stock may be transferred on the books of the corporation by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these Bylaws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these Bylaws. 4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar. -10- 4.5 RECORD DATE. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or to express consent (or dissent) to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 10 days after the date of adoption of a record date for a written consent without a meeting, nor more than 60 days prior to any other action to which such record date relates. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is properly delivered to the corporation. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. ARTICLE 5 - GENERAL PROVISIONS 5.1 FISCAL YEAR. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the corporation shall begin on the first day of January in each year and end on the last day of December in each year. 5.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be approved by the Board of Directors. 5.3 WAIVER OF NOTICE. Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these Bylaws, a waiver of such notice either in writing signed by the person entitled to such notice or such person's duly authorized attorney, or by telegraph, cable or any other available method, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such notice. -11- 5.4 VOTING OF SECURITIES. Except as the directors may otherwise designate, the President or Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation. 5.5 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action. 5.6 CERTIFICATE OF INCORPORATION. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time. 5.7 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction between the corporation and one or more of the directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of the directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or a committee of the Board of Directors which authorizes the contract or transaction or solely because his or their votes are counted for such purpose, if: (1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee of the Board of Directors, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. -12- 5.8 SEVERABILITY. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws. 5.9 PRONOUNS. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. ARTICLE 6 - AMENDMENTS 6.1 BY THE BOARD OF DIRECTORS. These Bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present. 6.2 BY THE STOCKHOLDERS. These Bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any regular meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new bylaws shall have been stated in the notice of such special meeting. -13- EX-99.(T3B)(13) 30 b42413a1ex99-t3b13.txt BY-LAWS OF MOBILE COMMUNICATIONS CORP OF AMERICA EXHIBIT T3B-13 BY-LAWS OF MOBILE COMMUNICATIONS CORPORATION OF AMERICA ARTICLE I Stockholders Meetings Section 1.1. Annual Meetings. (a) An annual meeting of stockholders shall be held for the election of directors at such date, time and place as may be fixed by resolution of the Board of Directors from time to time. Subject to paragraph (b) of this Section 1.1, any other proper business may be transacted at an annual meeting. (b) Only such business shall be conducted at an annual meeting of stockholders as shall have been properly brought before the meeting. For business to be properly brought before the meeting, it must be: (i) authorized by the Board of Directors and specified in the notice, or a supplemental notice, of the meeting, (ii) otherwise brought before the meeting by or at the direction of the Board of Directors or the chairman of the meeting, or (iii) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given written notice thereof to the Secretary, delivered or mailed to and received at the principal executive offices of the Corporation (x) not less than 60 days nor more than 90 days prior to the meeting, or (y) if less than 70 days' notice of the meeting or prior public disclosure of the date of the meeting is given or made to stockholders, not later than the close of business on the tenth day following the day on which the notice of the meeting was mailed or, if earlier, the day on which such public disclosure was made. A stockholder's notice to the Secretary shall set forth as to each item of business the stockholder proposes to bring before the meeting (1) a brief description of such item and the reasons for conducting such business at the meeting, (2) the name and address, as they appear on the Corporation's records, of the stockholder proposing such business, (3) the class and number of shares of stock of the Corporation which are beneficially owned by the stockholder (for purposes of the regulations under Sections 13 and 14 of the Securities Exchange Act of 1934, as amended), and (4) any material interest of the stockholder in such business. No business shall be conducted at any annual meeting except in accordance with the procedures set forth in this paragraph (b). The chairman of the meeting at which any business is proposed by a stockholder shall, if the facts warrant, determine and declare to the meeting that such business was not properly brought before the meeting in accordance with the provisions of this paragraph (b), and, in such event, the business not properly before the meeting shall not be transacted. Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time only by the Chairman of the Board, if any, the President, the Board of Directors or by a committee of the Board of Directors authorized to call such meetings, and by no other person. The business transacted at a special meeting of stockholders shall be limited to the purpose or purposes for which such meeting is called, except as otherwise determined by the Board of Directors or the chairman of the meeting. Section 1.3. Notice of Meetings. A written notice of each annual or special meeting of stockholders shall be given stating the place, date and time of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these By-laws, such notice of meeting shall be given not less than ten nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the Corporation. Section 1.4. Adjournments. Any annual or special meeting of stockholders may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the date, time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting in accordance with Section 1.3. Section 1.5. Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the presence in person or by proxy of the holders of stock having a majority of the votes which could be cast by the holders of all outstanding stock entitled to vote at the meeting shall constitute a quorum at each meeting of stockholders. In the absence of a quorum, the stockholders so present may, by the affirmative vote of the holders of stock having a majority of the votes which could be cast by all stockholders so present, adjourn the meeting from time to time in the manner provided in Section 1.4 of these By-laws until a quorum is present. If a quorum is present when a meeting is convened, the subsequent withdrawal of stockholders, even though less than a quorum remains, shall not affect the ability of the remaining stockholders lawfully to transact business. Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or if there is none or in his or her absence, by the President, or in his or her absence, by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting. Section 1.7. Voting. (a) Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power on the matter in question. (b) Voting at meetings of stockholders need not be by written ballot and need not be conducted by inspectors of election unless so required by Section 1.9 of these By-laws or so determined by the holders of stock having a majority of the votes which could be cast by the holders of all outstanding stock entitled to vote which are present in person or by proxy at such meeting. Unless otherwise provided in the Certificate of Incorporation, directors shall be elected by a plurality of the votes cast in the election of directors. Each other question shall, unless otherwise provided by law, the Certificate of Incorporation or these By-laws, be decided by the vote of the holders of stock having a majority of the votes which could be cast by the holders of all stock entitled to vote on such question which are present in person or by proxy at the meeting. (c) Stock of the Corporation standing in the name of another corporation and entitled to vote may be voted by such officer, agent or proxy as the by-laws or other internal regulations of such other corporation may prescribe or, in the absence of such provision, as the board of directors or comparable body of such other corporation may determine. (d) Stock of the Corporation standing in the name of a deceased person, a minor, an incompetent or a debtor in a case under Title 11, United States Code, and entitled to vote may be voted by an administrator, executor, guardian, conservator, debtor-in-possession or trustee, as the case may be, either in person or by proxy, without transfer of such shares into the name of the official or other person so voting. (e) A stockholder whose voting stock of the Corporation is pledged shall be entitled to vote such stock unless on the transfer records of the Corporation the pledgor has expressly empowered the pledgee to vote such shares, in which case only the pledgee, or such pledgee's proxy, may represent such shares and vote thereon. (f) If voting stock is held of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (i) if only one votes, such act binds all; (ii) if more than one vote, the act of the majority so voting binds all; and (iii) if more than one votes, but the vote is evenly split on any particular matter each faction may vote such stock proportionally, or any person voting the shares, or a beneficiary, if any, may apply to the Court of Chancery of the State of Delaware or such other court as may have jurisdiction to appoint an additional person to act with the persons so voting the stock, which shall then be voted as determined by a majority of such persons and the person appointed by the Court. If the instrument so filed shows that any such tenancy is held in unequal interests, a majority or even split for the purpose of this subsection shall be a majority or even split in interest. (g) Stock of the Corporation belonging to the Corporation, or to another corporation a majority of the shares entitled to vote in the election of directors of which are held by the Corporation, shall not be voted at any meeting of stockholders and shall not be counted in the total number of outstanding shares for the purpose of determining whether a quorum is present. Nothing in the Section 1.7 shall limit the right of the Corporation to vote shares of stock of the Corporation held by it in a fiduciary capacity. Section 1.8. Proxies. (a) Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy filed with the Secretary before or at the time of the meeting. No such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing with the Secretary an instrument in writing revoking the proxy or another duly executed proxy bearing a later date. (b) A stockholder may authorize another person or persons to act for such stockholder as proxy (i) by executing a writing authorizing such person or persons to act as such, which execution may be accomplished by such stockholder or such stockholder's authorized officer, director, partner, employee or agent (or, if the stock is held in a trust or estate, by a trustee, executor or administrator thereof) signing such writing or causing his or her signature to be affixed to such writing by any reasonable means, including, but not limited to, facsimile signature, or (ii) by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission (a "Transmission") to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such Transmission; provided that any such Transmission must either set forth or be submitted with information from which it can be determined that such Transmission was authorized by such stockholder. (c) Any inspector or inspectors appointed pursuant to Section 1.9 of these By-Laws shall examine Transmissions to determine if they are valid. If no inspector or inspectors are so appointed, the Secretary or such other person or persons as shall be appointed from time to time by the Board of Directors shall examine Transmissions to determine if they are valid. If it is determined a Transmission is valid, the person or persons making that determination shall specify the information upon which such person or persons relied. Any copy, facsimile telecommunication or other reliable reproduction of such a writing or Transmission may be substituted or used in lieu of the original writing or Transmission for any and all purposes for which the original writing or Transmission could be used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or Transmission. Section 1.9. Voting Procedures and Inspectors of Elections. (a) If the Corporation has a class of voting stock that is (i) listed on a national securities exchange, (ii) authorized for quotation on an interdealer quotation system of a registered national securities association or (iii) held of record by more than 2,000 stockholders, the Board of Directors shall, in advance of any meeting of stockholders, appoint one or more inspectors (individually an "Inspector," and collectively the "Inspectors") to act at such meeting and make a written report thereof. The Board of Directors may designate one or more persons as alternate Inspectors to replace any Inspector who shall fail to act. If no Inspector or alternate is able to act at such meeting, the chairman of the meeting shall appoint one or more other persons to act as Inspectors. Each Inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of Inspector with strict impartiality and according to the best of his or her ability. (b) The Inspectors shall (i) ascertain the number of shares of stock of the Corporation outstanding and the voting power of each, (ii) determine the number of shares of stock of the Corporation present in person or by proxy at such meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the Inspectors and (v) certify their determination of the number of such shares present in person or by proxy at such meeting and their count of all votes and ballots. The Inspectors may appoint or retain other persons or entities to assist them in the performance of their duties. (c) The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at such meeting. No ballots, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the Inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by any stockholder shall determine otherwise. (d) In determining the validity and counting of proxies and ballots, the Inspectors shall be limited to an examination of the proxies, any envelopes submitted with such proxies, any information referred to in paragraphs (b) and (c) of Section 1.8 of these By-laws, ballots and the regular books and records of the Corporation, except that the Inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by a stockholder of record to cast or more votes than such stockholder holds of record. If the Inspectors consider other reliable information for the limited purpose permitted herein, the Inspectors, at the time they make their certification pursuant to paragraph (b) of this Section 1.9, shall specify the precise information considered by them, including the person or persons from whom such information was obtained, when and the means by which such information was obtained and the basis for the Inspectors' belief that such information is accurate and reliable. Section 1.10. Fixing Date of Determination of Stockholders of Record. (a) In order that the corporation may determine the stockholders entitled (i) to notice of or to vote at any meeting of stockholders or any adjournment thereof, (ii) to express consent to corporate action in writing without a meeting, (iii) to receive payment of any dividend or other distribution or allotment of any rights, (iv) to exercise any rights in respect of any change, conversion or exchange of stock or (v) to take, receive or participate in any other action, the Board of Directors may fix a record date, which shall not be earlier than the date upon which the resolution fixing the record date is adopted by the Board of Directors and which (1) in the case of a determination of stockholders entitled to notice of or to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, be not more than 60 nor less than ten days before the date of such meeting; (2) in the case of a determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall be not more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall be not more than 60 days before such action. (b) If no record date is fixed, (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. (c) A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, but the Board of Directors may fix a new record date for the adjourned meeting. Section 1.11. List of Stockholders Entitled to Vote. The Secretary shall prepare, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders. Section 1.12. Action By Consent of Stockholders. (a) Unless the power of stockholders to act by consent without a meeting is restricted or eliminated by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted. (b) Every written consent shall bear the date of signature of each stockholder (or his, her or its proxy) signing such consent. Prompt notice of the taking of corporate action without a meeting of stockholders by less than unanimous written consent shall be given to those stockholders who have not consented in writing. All such written consents shall be delivered to the Corporation at its registered office in the State of Delaware, at its principal place of business or to the Secretary. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. No written consent shall be effective to authorize or take the corporate action referred to therein unless, within 60 days of the earliest dated written consent delivered to the Corporation in the manner required by this Section 1.12, written consents signed by a sufficient number of persons to authorize or take such action are delivered to the Corporation at its registered office in the State of Delaware, at its principal place of business or to the Secretary. All such written consents shall be filed with the minutes of proceedings of the stockholders, and actions authorized or taken under such written consents shall have the same force and effect as those authorized or taken pursuant to a vote of the stockholders at an annual or special meeting. ARTICLE II Board of Directors Section 2.1. Number. The Board of Directors shall consist of one or more directors, the number thereof to be determined from time to time by resolution of the Board of Directors. Section 2.2. Election; Resignation; Vacancies. (a) Unless the certificate of incorporation or an amendment to these by-laws adopted by the stockholders provides for a Board of Directors divided into two or three classes, at each annual meeting of stockholders the stockholders shall elect directors each of whom shall hold office until the next annual meeting of stockholders and the election and qualification of his or her successor, or until his or her earlier death, resignation or removal. If the Board of Directors is divided into classes, at each annual meeting at which the term of office of a class of directors expires, the stockholders shall elect directors of such class each to hold office until the annual meeting at which the terms of office of such class of directors expire and the election and qualification of his or her successor, or until his or her earlier death, resignation or removal. (b) Only persons who are nominated in accordance with the procedures set forth in this paragraph (b) shall be eligible for election as directors of the Corporation. Nominations of persons for election to the Board of Directors may be made at a meeting of stockholders by the Board of Directors or by any stockholder of the Corporation entitled to vote in the election of directors at the meeting who complies with the notice procedures set forth in this paragraph (b). Any nomination by a stockholder must be made by written notice to the Secretary delivered or mailed to and received at the principal executive offices of the Corporation (i) not less than 60 days nor more than 90 days prior to the meeting, or (ii) if less than 70 days' notice of the meeting or prior public disclosure of the date of the meeting is given or made to stockholders, not later than the close of business on the tenth day following the day on which the notice of the meeting was mailed or, if earlier, the day on which such public disclosure was made. A stockholder's notice to the Secretary shall set forth (x) as to each person whom the stockholder proposes to nominate for election or re-election as a director: (1) the name, age, business address and residence address of such person, (2) the principal occupation or employment of such person, (3) the class and number of shares of stock of the Corporation which are beneficially owned by such person (for the purposes of the regulations under Sections 13 and 14 of the Securities Exchange Act of 1934, as amended), and (4) any other information relating to such person that would be required to be disclosed in solicitations of proxies for the election of such person as a director of the Corporation pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, and such person's written consent to being named in any proxy statement as a nominee and to serving as a director if elected; and (y) as to the stockholder giving notice (5) the name and address, as they appear on the Corporation's records, of such stockholder and (6) the class and number of shares of stock of the Corporation which are beneficially owned by such stockholder (determined as provided in clause (x)(3) above). At the request of the Board of Directors any person nominated by the Board of Directors for election as a director shall furnish to the Secretary that information required to be set forth in a stockholder's notice of nomination which pertains to the nominee. The chairman of the meeting at which a stockholder nomination is presented shall, if the facts warrant, determine and declare to the meeting that such nomination was not made in accordance with the procedures prescribed by this paragraph (b), and, in such event, the defective nomination shall be disregarded. (c) Any director may resign at any time by giving written notice to the Chairman of the Board, if any, the President or the Secretary. Unless otherwise stated in a notice of resignation, it shall take effect when received by the officer to whom it is directed, without any need for its acceptance. (d) Any newly created directorship or any vacancy occurring in the Board of Directors for any reason may be filled by a majority of the remaining directors, although less than a quorum, or by a plurality of the votes cast in the election of directors at a meeting of stockholders. Each director elected to replace a former director shall hold office until the expiration of the term of office of the director whom he or she has replaced and the election and qualification of his or her successor, or until his or her earlier death, resignation or removal. A director elected to fill a newly created directorship shall serve until the next annual meeting of stockholders (or, if the Board of Directors is divided into classes, the annual meeting at which the terms of office of the class of directors to which he or she is assigned expire) and the election and qualification of his or her successor, or until his or her earlier death, resignation or removal. Section 2.3. Regular Meetings. A regular annual meeting of the Board of Directors shall be held, without call or notice, immediately after and at the same place as the annual meeting of stockholders, for the purpose of organizing the Board of Directors, electing officers and transacting any other business that may properly come before such meeting. If the stockholders shall elect the directors by written consent of stockholders as permitted by Section 1.12 of these By-laws, a special meeting of the Board of Directors shall be called as soon as practicable after such election for the purposes described in the preceding sentence. Additional regular meetings of the Board of Directors may be held without call or notice at such times as shall be fixed by resolution of the Board of Directors. Section 2.4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, if any, the President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting. The purpose or purposes of a special meeting need not be stated in the call or notice. Section 2.5. Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or if there is none or in his or her absence, by the President, or in his or her absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting. A majority of the directors present at a meeting, whether or not they constitute a quorum, may adjourn such meeting to any other date, time or place without notice other than announcement at the meeting. Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors a majority of the whole Board of Directors shall constitute a quorum for the transaction of business. Unless the Certificate of Incorporation or these By-laws otherwise provide, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Section 2.7. Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members present at any meeting and not disqualified from voting, whether or not a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and provided in the resolution of the Board of Directors designating such committee, or an amendment to such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Section 2.8. Telephonic Meetings. Directors, or any committee of directors designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 2.8 shall constitute presence in person at such meeting. Section 2.9. Informal Action by Directors. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing (which may be in counterparts), and the written consent or consents are filed with the minutes of proceedings of the Board of Directors or such committee. Section 2.10. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to this Article II of these By-laws. Section 2.11. Reliance upon Records. Every director, and every member of any committee of the Board of Directors, shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors, or by any other person as to matters the director or member reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, including, but not limited to, such records, information, opinions, reports or statements as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid, or with which the Corporation's capital stock might properly be purchased or redeemed. Section 2.12. Interested Directors. A director who is directly or indirectly a party to a contract or transaction with the Corporation, or is a director or officer of or has a financial interest in any other corporation, partnership, association or other organization which is a party to a contract or transaction with the Corporation, may be counted in determining whether a quorum is present at any meeting of the Board of Directors or a committee thereof at which such contract or transaction is considered or authorized, and such director may participate in such meeting and vote on such authorization to the extent permitted by applicable law, including Section 144 of the General Corporation Law of the State of Delaware. Section 2.13. Compensation. Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors. The directors shall be paid their reasonable expenses, if any, of attendance at each meeting of the Board of Directors or a committee thereof and may be paid a fixed sum for attendance at each such meeting and an annual retainer or salary for services as a director or committee member. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.14. Presumption of Assent. Unless otherwise provided by the laws of the State of Delaware, a director who is present at a meeting of the Board of Directors or a committee thereof at which action is taken on any matter shall be presumed to have assented to the action taken unless his or her dissent shall be entered in the minutes of such meeting or unless he or she shall file his or her written dissent to such action with the person acting as secretary of such meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary immediately after the adjournment of such meeting. Such right to dissent shall not apply to a director who voted in favor of such action. ARTICLE III Officers Section 3.1. Executive Officers; Election; Qualification; Term of Office. The Board of Directors shall elect a President and may, if it so determines, elect a Chairman of the Board from among its members. The Board of Directors shall also elect a Secretary and may elect one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Any number of offices may be held by the same person. Each officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. Section 3.2. Resignation; Removal; Vacancies. Any officer may resign at any time by giving written notice to the Chairman of the Board, if any, the President or the Secretary. Unless otherwise stated in a notice of resignation, it shall take effect when received by the officer to whom it is directed, without any need for its acceptance. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation. A vacancy occurring in any office of the Corporation may be filled for the unexpired portion of the term thereof by the Board of Directors at any regular or special meeting. Section 3.3. Powers and Duties of Executive Officers. The officers of the Corporation shall have such powers and duties in the management of the Corporation as may be prescribed by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties. Section 3.4. Chief Executive Officer. Unless the Board of Directors elects a Chairman of the Board who is designated as such, the President shall be the Chief Executive Officer of the Corporation and shall in general supervise and control all of the business affairs of the Corporation, subject to the direction of the Board of Directors. The President may execute, in the name and on behalf of the Corporation, any deeds, mortgages, bonds, contracts or other instruments which the Board of Directors or a committee thereof has authorized to be executed, except in cases where the execution shall have been expressly delegated by the Board of Directors or a committee thereof to some other officer or agent of the corporation. Section 3.5. Secretary. In addition to such other duties, if any, as may be assigned to the Secretary by the Board of Directors, the Chairman of the Board, if any, or the President, the Secretary shall (i) keep the minutes of proceedings of the stockholders, the Board of Directors and any committee of the Board of Directors in one or more books provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of these By-laws or as required by law; (iii) be the custodian of the records and seal of the Corporation; (iv) affix or cause to be affixed the seal of the Corporation or a facsimile thereof, and attest the seal by his or her signature, to all certificates for shares of stock of the Corporation and to all other documents the execution of which under seal is authorized by the Board of Directors; and (v) unless such duties have been delegated by the Board of Directors to a transfer agent of the Corporation, keep or cause to be kept a register of the name and address of each stockholder, as the same shall be furnished to the Secretary by such stockholder, and have general charge of the stock transfer records of the Corporation. ARTICLE IV Stock Certificates and Transfers Section 4.1. Certificate. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman of the Board, if any, or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Corporation, certifying the number of shares owned by such stockholder in the Corporation. Any of or all the signatures on the certificate may be facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such officer, transfer agent, or registrar continued to be such at the date of issue. Section 4.2. Lost, Stolen or Destroyed Certificates; Issuance of New Certificates. The Corporation may issue a new certificate for stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such stockholder's legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. Section 4.3. Transfers of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for stock of the Corporation duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer or, if the relevant stock certificate is claimed to have been lost, stolen or destroyed, upon compliance with the provisions of Section 4.2 of these By-laws, and upon payment of applicable taxes with respect to such transfer, and in compliance with any restrictions on transfer applicable to such stock certificate or the shares represented thereby of which the Corporation shall have notice and subject to such rules and regulations as the Board of Directors may from time to time deem advisable concerning the transfer and registration of stock certificates, the Corporation shall issue a new certificate or certificates for such stock to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Transfers of stock shall be made only on the books of the Corporation by the registered holder thereof or by such holder's attorney or successor duly authorized as evidenced by documents filed with the Secretary or transfer agent of the Corporation. Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of transfer if, when the certificate or certificates representing such stock are presented to the Corporation for transfer, both the transferor and transferee request the Corporation to do so. Section 4.4. Stockholders of Record. The Corporation shall be entitled to treat the holder of record of any stock of the Corporation as the holder thereof and shall not be bound to recognize any equitable or other claim to or interest in such stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by the laws of the State of Delaware. ARTICLE V Notices Section 5.1. Manner of Notice. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, whenever notice is required to be given to any stockholder, director or member of any committee of the Board of Directors, such notice may be given by personal delivery or by depositing it, in a sealed envelope, in the United States mails, first class, postage prepaid, addressed, or by delivering it to a telegraph company, charges prepaid, for transmission, or by transmitting it via telecopier, to such stockholder, director or member, either at the address of such stockholder, director or member as it appears on the records of the Corporation or, in the case of such a director or member, at his or her business address; and such notice shall be deemed to be given at the time when it is thus personally delivered, deposited, delivered or transmitted, as the case may be. Such requirement for notice shall also be deemed satisfied, except in the case of stockholder meetings, if actual notice is received orally or by other writing by the person entitled thereto as far in advance of the event with respect to which notice is being given as the minimum notice period required by law or these By-laws. Section 5.2. Dispensation with Notice. (a) Whenever notice is required to be given by law, the Certificate of Incorporation or these By-laws to any stockholder to whom (i) notice of two consecutive annual meetings of stockholders, and all notices of meetings of stockholders or of the taking of action by stockholders by written consent without a meeting to such stockholder during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by first class mail) of dividends or interest on securities of the Corporation during a 12-month period, have been mailed addressed to such stockholder at the address of such stockholder as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting which shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth the then current address of such stockholder, the requirement that notice be given to such stockholder shall be reinstated. (b) Whenever notice is required to be given by law, the Certificate of Incorporation or these By-laws to any person with whom communication is unlawful, the giving of such notice to such person shall not be required, and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. Section 5.3. Waivers of Notice. Any written waiver of notice, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of any regular special meeting of the stockholders, directors, or members of a committee or directors need be specified in any written waiver of notice. ARTICLE VI Indemnification Section 6.1. Right to Indemnification. (a) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by law as in effect on the date of adoption of these By-laws or as it may thereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he or she, or a person for whom he or she is the legal representative, 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 another corporation, partnership, joint venture or other enterprise, against any and all liability and loss (including judgments, fines, penalties and amounts paid in settlement) actually and reasonably suffered or incurred and expenses actually and reasonably incurred by such person; provided that any standard of conduct applicable to whether a director or officer may be indemnified shall be equally applicable to an employee or agent under this Article VI. The Corporation shall not be required to indemnify a person in connection with a proceeding initiated by such person, including a counterclaim or crossclaim, unless the proceeding was authorized by the Board of Directors. (b) For purposes of this Article VI: (i) any reference to "other enterprise" shall include all plans, programs, policies, agreements, contracts and payroll practices and related trusts for the benefit of or relating to employees of the Corporation and its related entities ("employee benefit plans"); (ii) any reference to "fines", "penalties", "liability" and "expenses" shall include any excise taxes, penalties, claims, liabilities and reasonable expenses (including reasonable legal fees and related expenses) assessed against or incurred by a person with respect to any employee benefit plan; (iii) any reference to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation or trustee or administrator of any employee benefit plan which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, beneficiaries, fiduciaries, administrators and service providers; (iv) any reference to serving at the request of the Corporation as a director, officer, employee or agent of a partnership or trust shall include service as a partner or trustee; and (v) a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "he or she reasonably believed to be in and not opposed to the best interests of the Corporation" for purposes of Section 145(a) and (b) of the General Corporation Law of the State of Delaware as in effect on the date of the adoption of these By-laws and this Article VI. Section 6.2. Prepayment of Expenses. The Corporation may pay or reimburse the reasonable expenses (including reasonable attorney's fees) incurred in defending any proceeding in advance of its final disposition if the Corporation has received in advance an undertaking by the person receiving such payment or reimbursement to repay all amounts advanced if it should be ultimately determined that he or she is not entitled to be indemnified under this Article VI or otherwise. The Corporation may require security for any such undertaking. Section 6.3. Claims. If a claim for indemnification or payment of expenses under this Article VI is not paid or otherwise provided for in full within 60 days after a written claim therefor has been received by the Corporation, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law. Section 6.4. Non-Exclusivity of Rights. The rights conferred on any person by this Article VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these By-laws, agreement, vote of stockholders or disinterested directors or otherwise. Section 6.5. Other Indemnification. The Corporation's obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee, partner or agent of another corporation, partnership, joint venture or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture or other enterprise. Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. ARTICLE VII General Section 7.1. Fiscal year. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors. Section 7.2. Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors. Section 7.3. Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device, provided that the records so kept can be converted into clearly legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same. Section 7.4. Amendment of By-Laws. These By-laws may be altered or repealed, and new By-laws made, by the Board of Directors, but the stockholders may make additional By-laws and may alter and repeal any By-laws whether adopted by them or otherwise. EX-99.(T3B)(14) 31 b42413a1ex99-t3b14.txt BY-LAWS OF PAGING NETWORK, INC. EXHIBIT T3B-14 Amended & Restated 12/16/98 BY-LAWS OF PAGING NETWORK, INC. A Delaware Corporation ARTICLE I OFFICES Section 1. Registered Office. The registered office of the Corporation in the State of Delaware shall be at 1209 Orange Street, Wilmington, Delaware. The name of the Corporation's registered agent at such address shall be The Corporation Trust Company. Section 2. Other Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Annual Meetings. An annual meeting of the stockholders shall be held for the purpose of electing Directors and conducting such other business as may come before the meeting. The date, time and place of the annual meeting shall be determined by resolution of the Board of Directors. The Board of Directors may postpone a previously scheduled annual meeting of stockholders by providing public notice of such postponement prior to such previously scheduled meeting. Section 2. Special Meetings. Special meetings of stockholders may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Special meetings of the stockholders may be called only by the Chairman of the Board or the President, and shall be called within 10 days after receipt of the written request of the Board of Directors, pursuant to a resolution approved by a majority of the Whole Board (as defined below). Any such resolution shall be sent to the Chairman of the Board or the President and the Secretary of the Corporation and shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting is limited to the purpose stated in the notice. For the purposes of these By-Laws, the term "Whole Board" is defined as the total number of Directors which the Corporation would have if there were no vacancies. Section 3. Notice. Written or printed notice of every annual or special meeting of the stockholders, stating the place, date, time, and, in the case of special meetings, the purpose of purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten, nor more than sixty days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the Chairman of the Board or the President or the Board of Directors, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at his or her address as it appears on the records of the Corporation, with postage prepaid. When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, written notice of the place, date and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 4. Stockholders List. The officer having charge of the stock ledger of the Corporation shall make, at least ten days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, specifying the address of and the number of shares registered in the name of each stockholder. Section 5. Quorum. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders except as otherwise provided by statute or by the Certificate of Incorporation. If a quorum is not present, the holders of the shares present in person or represented by proxy at the meeting, and entitled to vote thereat, shall have the power, by the affirmative vote of the holders of a majority of such shares, to adjourn the meeting to another time and/or place, without notice other than announcement at the meeting at which the adjournment was taken, until a quorum shall be present or represented. Section 6. Notice of Stockholder Business. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors including matters included pursuant to Rule 14a-8 of the Securities and Exchange Commission; (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors; or (c) otherwise properly brought before the meeting by a stockholder. In addition to any other applicable requirements, for business to be otherwise properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Senior Vice President, General Counsel and Assistant Secretary of the Corporation. To be timely, a stockholder's notice must be addressed to the Senior Vice President, General Counsel and Assistant Secretary of the Corporation and received at the principal executive offices of the Corporation, not more than 120 days and not less than 80 days prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event that the date of the meeting is more than 30 days before or after such anniversary date, notice by the stockholder to be timely must be so received not later than the close of business of the fifteenth day following the date on which notice of the date of the annual meeting was mailed or public disclosure was made, whichever first occurs. A stockholder's notice to the Senior Vice President, General Counsel and Assistant Secretary shall set forth as to each matter the stockholder proposes to bring before the annual 2 meeting (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (b) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business and of any beneficial owner on behalf of which the stockholder is acting; (c) the class and number of shares of the Corporation which are beneficially owned by the stockholder and by any such beneficial owner; and (d) any material interest of the stockholder and of any such beneficial owner in such business. Notwithstanding anything in the By-Laws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 6 of Article II. The presiding officer of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with this Section 6 of Article II, and if the presiding officer should so determine, the presiding officer shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 7. Inspectors. The Board of Directors shall appoint inspectors of election to act as judges of the voting and to determine those entitled to vote at any meeting of stockholders, or any adjournment thereof, in advance of such meeting, but if the Board of Directors fails to make such appointments or if an appointee fails to serve, the presiding officer of the meeting of stockholders may appoint substitute inspectors. Section 8. Voting. Except as otherwise provided by law or by the Certificate of Incorporation, each stockholder shall be entitled at every meeting of the stockholders to one vote for each share of stock having voting power standing in the name of such stockholder on the books of the Corporation on the record date for the meeting and such votes may be cast either in person or by written proxy. Every proxy must be duly executed and filed with the Secretary of the Corporation. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. The vote upon any question brought before a meeting of the stockholders may be by voice vote, unless otherwise required by these By-Laws or unless the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting shall so determine. Every vote taken by written ballot shall be counted by the inspectors of election. When a quorum is present at any meeting, the vote of the holders of a majority of the stock which has voting power present in person or represented by proxy and which has actually voted shall decide any question properly brought before such meeting, except the election or removal of Directors or as otherwise provided in these By-Laws, the Certificate of Incorporation or a Preferred Stock Designation or by applicable law. With respect to any election or questions required to be decided by any class of stock voting as a class, the vote of the holders of a majority of such class of stock present in person or by proxy and which actually voted shall decide any such election or question. Section 9. Order of Business. Unless otherwise determined by the Board of Directors prior to the meeting, the presiding officer of the meeting of stockholders shall determine the order of business and shall have the authority in his discretion to regulate the conduct of any such meeting, including, without limitation, by imposing restrictions on the persons (other than 3 stockholders of the Corporation or their duly appointed proxies) who may attend any such meeting of stockholders, by ascertaining whether any stockholder or his proxy may be excluded from any meeting of stockholders based upon any determination by the presiding officer, in his sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings thereat, and by determining the circumstances in which any person may make a statement or ask questions at any meeting of stockholders. Section 10. Adjournment of Meetings. The Chairman of the Board or the President of the Corporation shall have the power to adjourn any meeting of stockholders, whether or not a quorum is present, to another time and/or place, without notice other than announcement at the meeting at which adjournment was taken. ARTICLE III NOMINATION OF DIRECTOR CANDIDATES Section 1. Notification of Nominees. Subject to the rights of holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, nominations for the election of Directors may be made by the Board of Directors or a committee appointed by the Board of Directors or by any stockholder entitled to vote in the election of Directors generally. However, any stockholder entitled to vote in the election of Directors generally may nominate one or more persons for election as Directors at a meeting, so long as the stockholder gives timely notice thereof in writing to the Senior Vice President, General Counsel and Assistant Secretary of the Corporation. To be timely, a stockholder's intent to make such nomination or nominations must be addressed to the Senior Vice President, General Counsel and Assistant Secretary of the Corporation and received at the principal executive offices of the Corporation not more than 120 days and not less than 80 days prior to the first anniversary of the preceding year's annual meeting or the date of the special meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before or after such anniversary date or the date of the special meeting was not publicly announced by the Corporation by mail, press release or otherwise more than 90 days prior to the meeting, notice by the stockholder to be timely must be so received not later than the close of business on the fifteenth day following the day on which notice of the date of the annual meeting or special meeting was mailed or public disclosure was made, whichever first occurs. Each such notice shall set forth: (a) the name and address of the stockholder who intends to make the nomination and of the person or persons to be nominated; (b) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (d) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (e) the signed consent of each nominee to serve as Director of the Corporation if so elected. 4 Section 2. Substitution of Nominees. If a person is validly designated as a nominee in accordance with Section 1 of this Article III, and shall thereafter become unable or unwilling to stand for election to the Board of Directors, the Board of Directors or the stockholder who proposed such nominee, as the case may be, may designate a substitute nominee upon delivery, not fewer than five days prior to the date of the meeting for the election of such nominee, of a written notice to the Secretary setting forth such information regarding such substitute nominee as would have been required to be delivered to the Secretary pursuant to Section 1 of this Article III, had such substitute nominee been initially proposed as a nominee. Such notice shall include a signed consent to serve as a Director of the Corporation, if elected, of each such substitute nominee. Section 3. Compliance with Procedures. If the presiding officer of the meeting for the election of Directors determines that a nomination for any candidate for election as a Director at such meeting was not made in accordance with the applicable provisions of these By-Laws, such person will not be eligible for election as a Director and such nomination shall be void; provided, however, that nothing in these By-Laws shall be deemed to limit any voting rights upon the occurrence of dividend arrearages provided to holders of Preferred Stock pursuant to the Preferred Stock Designation for any series of Preferred Stock. ARTICLE IV BOARD OF DIRECTORS Section 1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation directed or required to be exercised or done by the stockholders. Section 2. Number, Qualification, Election and Terms. Except as otherwise fixed by, or pursuant to, the provisions of Article FOURTH of the Certificate of Incorporation relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional Directors under specified circumstances, the number of Directors shall be fixed from time to time by resolution of the Board of Directors, but shall not be less than three nor more than fifteen persons. The Directors, other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as determined by the Board of Directors. One class shall hold office initially for a term expiring at the annual meeting of stockholders to be held in 1992, another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1993, another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1994, with the members of each class to hold office until their successors are elected and qualified. At each succeeding annual meeting of the stockholders of the Corporation, the successors of the class of directors whose term expires at that meeting shall be elected by plurality vote by written ballot to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. 5 Section 3. Removal. Subject to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional Directors under specified circumstances, any Director may be removed from office by the stockholders in the manner provided in this Section 3 of Article IV. At any annual meeting of the stockholders of the Corporation or at any special meeting of the stockholders of the Corporation, the notice of which shall state that the removal of a Director or Directors is among the purposes of the meeting, the affirmative vote of the holders of at least 80 percent of the combined voting power of the outstanding shares of Voting Stock (as defined below), voting together as a single class, may remove such Director or Directors. For the purposes of these ByLaws, "Voting Stock" shall mean the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors. Section 4. Vacancies and New Directorships. Except as otherwise fixed by or provided for or pursuant to the provisions of Article FOURTH of the Certificate of Incorporation relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional Directors under specified circumstances, vacancies and newly created directorships resulting from any increase in the authorized number of Directors shall be filled solely by the affirmative vote of a majority of the Directors then in office though less than a quorum, or by a sole remaining Director, except as may be required by law. Any Director so chosen 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 such Director's successor shall have been elected and qualified. No decrease in the authorized number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director. Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held without notice immediately after the annual meeting of the stockholders and at such other time and place as shall from time to time be determined by the Board of Directors. Section 6. Special Meetings and Notice. Special meetings of the Board of Directors may be called by the Chairman of the Board or the President on one day's written notice to each Director by whom such notice is not waived, given either personally or by mail, telephone, telegram, telex, facsimile or similar medium of communication, and shall be called by the President or the Secretary in like manner and on like notice on the written request of any three Directors. Section 7. Resignation. Any Director may resign at any time by giving written notice of his resignation to the Chairman of the Board or the Secretary, to be effective upon its acceptance by the Board of Directors or at the time specified in such notice. Section 8. Quorum. Subject to Section 4 of this Article IV, at all meetings of Directors, a majority of the total number of Directors then in office shall constitute a quorum for the transaction of business. Except for the designation of committees (as provided in Section 9 of this Article IV), the vote of a majority of Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from 6 time to time to another place, time or date, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Committees. The Board of Directors may, by resolution passed by a majority of the Whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation, which to the extent provided in such resolution shall have and may exercise the powers of the Board of Directors in the management and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it, except as otherwise limited by statute. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Directors when required. Each committee of the Board of Directors may fix its own rules or procedure and shall hold its meetings as provided by such rules, except as may be otherwise be provided by the resolution of the Board of Directors designating such committee, and, unless otherwise prescribed by the Board of Directors, the presence of at least a majority of the members of such committee shall be necessary to constitute a quorum. Section 10. Compensation. The Directors may be paid for expenses of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore. Members of committees designated by the Board of Directors may be allowed like compensation for attending committee meetings. Section 11. Rules. The Board of Directors may adopt such special rules and regulations for the conduct of their meetings and the management of the affairs of the Corporation, as they may deem proper, not inconsistent with law, the Certificate of Incorporation or these By-Laws. ARTICLE V OFFICERS Section 1. Number. The officers of the Corporation shall be chosen by the Board of Directors and shall consist of a president, a chairman of the board, a vice chairman of the board, one or more vice-presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the Board of Directors. Any number of offices may be held by the same person. In its discretion, the Board of Directors may choose not to fill any office for any period, as it may deem advisable, except the offices of the president and secretary. Section 2. Election and Term of Office. The officers of the Corporation shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of stockholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office 7 until the next annual meeting of the Board of Directors or until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided. Section 3. Removal. Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Section 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term by a majority vote of the directors then in office. Section 5. Compensation. Compensation of all officers shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of the fact that he or she is also a director of the Corporation. Section 6. The President and Vice-Presidents. The president shall be the chief executive officer of the Corporation unless the Board of Directors shall so designate another officer; shall preside at all meetings of the stockholders; shall have general and active management of the business of the Corporation; and shall see that all orders and resolutions of the Board of Directors are carried into effect. The president shall execute bonds, mortgages, and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the Board of Directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such powers as the Board of Directors may, from time to time, determine or these By-Laws may prescribe. Section 7. The Chairman of the Board and Vice Chairman. The chairman of the board and the vice-chairman of the board shall perform such duties and have such powers as the Board of Directors may, from time to time, determine. Section 8. The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors; perform such other duties as may be prescribed by the Board of Directors or president, under whose supervision he or she shall be; shall have custody of the corporate seal of the Corporation and the secretary, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors, shall, in the absence 8 or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 9. The Treasurer and Assistant Treasurer. The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation; shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements; and shall render to the president and Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of the Corporation. If required by the Board of Directors, the treasurer shall give the Corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of treasurer and for the restoration to the Corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the Corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the Board of Directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 10. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these By-Laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors. ARTICLE VI INDEMNIFICATION OF OFFICERS AND OTHERS Section 1. The Corporation shall 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 (other than an action by or in the right of the Corporation) by reason of the fact that he or she is or was an officer of the Corporation, or is or was serving at the request of the Corporation as director or officer of another Corporation, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interest of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interest of the Corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. 9 Section 2. The Corporation shall 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 by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was an officer of the Corporation, or is or was serving at the request of the Corporation as director or officer of another Corporation, against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection with defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interest of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 3. To the extent that an officer of the Corporation or person serving at the request of the Corporation as a director or officer of another Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article VI or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith. Section 4. Any indemnification under Sections 1 and 2 of this Article VI (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the officer or person serving at the request of the Corporation as a director or officer of another Corporation is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 1 and 2 of this Article VI. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. Section 5. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the officer or person serving at the request of the Corporation as a director or officer of another Corporation to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this Article VI. Section 6. The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, 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. Section 7. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was an officer of the Corporation or is or was serving at the 10 request of the Corporation as a director or officer of another Corporation against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article VI. Section 8. For purposes of this Article VI, references to "the Corporation" shall include, in addition to the resulting Corporation, any constituent Corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors and officers so that any person who is or was a director or officer of such constituent Corporation, or is or was serving at the request of such constituent Corporation as a director or officer of another Corporation shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving Corporation as he or she would have with respect to such constituent Corporation if its separate existence had continued. Section 9. The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be an officer, employee or person serving at the request of the Corporation as a director or officer of another Corporation and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 10. This Article VI may be amended or repealed only by the affirmative vote of the holders of a majority of the Voting Stock; provided that no such amendment or repeal shall adversely affect any right to indemnification for any act or omission of any person referred to in Section 1 and 2 of this Article VI which occurred or allegedly occurred prior to the effective date of such amendment or repeal. Section 11. If in any action, suit or other proceeding or investigation, a Director of the Corporation is held not liable for monetary damages because that Director is relieved of personal liability under Article NINTH of the Certificate of Incorporation or otherwise, the Director shall be deemed to have met the standards of conduct set forth above and to be entitled to indemnification as provided above. ARTICLE VII CERTIFICATES OF STOCK Section 1. Form. Every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by, the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the Corporation, certifying the number of shares owned by him or her in the Corporation. Where a certificate is signed (1) by a transfer agent or an assistant transfer agent other than the Corporation or its employee, or (2) by a registrar, other than the Corporation or its employee, the signature of any such president, vice-president, treasurer, assistant treasurer, secretary, or assistant secretary may be facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the Corporation whether because of death, resignation or otherwise before such 11 certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation. Section 2. Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 3. Fixing a Record Date. The Board of Directors may fix in advance a date, not more than sixty nor less than ten days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining any consent, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights with respect to any such change, conversion, or exchange of capital stock, or to give such consent, and in such case such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting and any adjournment thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, or to give such consent, as the case may be notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed, the time for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. The time for determining stockholders for any other purpose shall be at the close of business on the date on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 4. Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. 12 ARTICLE VIII GENERAL PROVISIONS Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think in the best interest of the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created. Section 2. Checks. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. Section 4. Seal. The corporate seal shall have inscribed thereon the name of the Corporation and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 5. Securities Owned By Corporation. Voting securities in any other Corporation held by the Corporation shall be voted by the president or any vice president, unless the Board of Directors specifically confers authority to vote with respect thereto, which may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution. ARTICLE IX AMENDMENTS Subject to the provisions of the Certificate of Incorporation, these By-Laws may be amended or repealed at any regular meeting of the stockholders or at any special meeting thereof duly called for that purpose by a majority vote of the shares represented and entitled to vote at such meeting provided that in the notice of such special meeting notice of such purpose shall be given. Subject to the laws of the State of Delaware, the Certificate of Incorporation and these By-Laws, the Board of Directors may by majority vote of those present at any meeting at which a quorum is present amend or repeal these By-Laws, or adopt such other By-Laws as in their judgment may be advisable for the regulation of the conduct of the affairs of the Corporation. 13 EX-99.(T3B)(15) 32 b42413a1ex99-t3b15.txt BY-LAWS OF PAGENET, INC EXHIBIT T3B-15 BY-LAWS OF PAGENET, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III. Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. -2- ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V . Quorum of Stockholders; Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and -3- may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding -4- the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any -5- committee who may replace any absent or disqualified member at any meeting of the committee and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of the Board Of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the -6- affirmative vote in good faith of a majority of the disinterested directors, even though the disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these by-laws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. -7- ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. -8- ARTICLE XIX. Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and the -9- year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. EX-99.(T3B)(16) 33 b42413a1ex99-t3b16.txt BY-LAWS OF MOBILEMEDIA COMMUNICATIONS, INC EXHIBIT T3B-16 BY-LAWS OF PAGING NETWORK OF AMERICA, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III. Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V. Quorum of Stockholders; Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence -2- as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to -3- notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee -4- and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said. notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the affirmative vote in good faith of a majority of the disinterested directors, even though the -5- disinterested directors shall be fewer than a quorum, shall be sufficient authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these by-laws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. -6- ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer of the corporation and shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. -7- ARTICLE XIX. Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and the -8- year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. -9- EX-99.(T3B)(17) 34 b42413a1ex99-t3b17.txt BY-LAWS OF PAGING NETWORK OF COLORADO, INC. EXHIBIT T3B-17 BY-LAWS OF PAGING NETWORK OF COLORADO, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. -2- ARTICLE III. Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V. Quorum of Stockholders; Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and -3- entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the -4- record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to -5- complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the -6- board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the affirmative vote in good faith of a majority of the disinterested directors, even though the disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall -7- hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these by-laws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals -8- The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. ARTICLE XIX. Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the -9- qualifications, limitations or restrictions of such preferences and/or rights. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and the year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. -10- ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. EX-99.(T3B)(18) 35 b42413a1ex99-t3b18.txt BY-LAWS OF PAGING NETWORK OF NORTHERN CALIFORNIA EXHIBIT T3B-18 BY-LAWS OF PAGING NETWORK OF NORTHERN CALIFORNIA, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III. Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. -2- ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V. Quorum of Stockholders; Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence -3- as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to -4- notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee -5- and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the -6- affirmative vote in good faith of a majority of the disinterested directors, even though the disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these by-laws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. -7- ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. -8- ARTICLE XIX. Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and -9- the year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. EX-99.(T3B)(19) 36 b42413a1ex99-t3b19.txt BY-LAWS OF PAGING NETWORK OF MICHIGAN, INC. EXHIBIT T3B-19 BY-LAWS OF PAGING NETWORK OF MICHIGAN, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III. Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. -2- ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V. Quorum of Stockholders: Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence -3- as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to -4- notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his. earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee -5- and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the affirmative vote in good faith of a majority of the disinterested directors, even though the -6- disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to of notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Accents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same, person. Each officer shall, subject to these by-laws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. -7- ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon; remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting, from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. -8- ARTICLE XIX. Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and -9- the year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or, by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. EX-99.(T3B)(20) 37 b42413a1ex99-t3b20.txt BY-LAWS OF PAGING NETWORK FINANCE CORP. EXHIBIT T3B-20 BY-LAWS OF PAGING NETWORK FINANCE CORP. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III. Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. -2- ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V. Quorum of Stockholders; Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence -3- as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to -4- notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee -5- and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the affirmative vote in good faith of a majority of the disinterested directors, even though the -6- disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whole shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these by-laws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. -7- ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. -8- ARTICLE XIX. Certificate of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and the -9- year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Paper Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. EX-99.(T3B)(21) 38 b42413a1ex99-t3b21.txt BY-LAWS OF PAGING NETWORK INTERNATIONAL, INC. EXHIBIT T3B-21 BY-LAWS OF PAGING NETWORK INTERNATIONAL, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III Special Meetings of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. -2- ARTICLE IV Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V Quorum of Stockholders; Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence -3- as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to -4- notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee -5- and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these bylaws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the affirmative vote in good faith of a majority of the disinterested directors, even though the -6- disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these bylaws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. -7- ARTICLE XV Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation; except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. -8- ARTICLE XIX Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and the -9- year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. AMENDMENT NO. 1 TO BY-LAWS OF PAGING NETWORK INTERNATIONAL, INC. The By-Laws of PAGING NETWORK INTERNATIONAL, INC. are hereby amended as follows: 1. Article XIII "Officers and Agents" is hereby amended by (a) deleting the second sentence in its entirety and by substituting the following sentence therefor: "The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including a chairman, one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors."; and (b) by deleting the next to the last sentence in its entirety and by substituting the following sentence therefor: "In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the chairman, if there is one, or, if there is no chairman, of the president." 2. Article XIV(A) is hereby added to the Corporation's By-laws to read as follows: "Article XIV(A). Chairman" The chairman, if there is one, shall be the chief executive officer of the corporation and shall perform such duties and have such powers as the Board of Directors may, from time to time, determine." 3. Article XIV. is hereby amended by changing its title to: "Article XIV(B). President." Dated effective as of December 15, 1995. EX-99.(T3B)(22) 39 b42413a1ex99-t3b22.txt BY-LAWS OF PAGING NETWORK OF SAN FRANCISCO, INC EXHIBIT T3B-22 BY-LAWS OF PAGING NETWORK OF SAN FRANCISCO, INC. ARTICLE I. Certificate of Incorporation These by-laws, the powers of the corporation and of its directors and stockholders, and all matters concerning the conduct and regulation of the business of the corporation shall be subject to such provisions in regard thereto as are set forth in the certificate of incorporation filed pursuant to the General Corporation Law of Delaware which is hereby made a part of these by-laws. The term "certificate of incorporation" in these by-laws, unless the context requires otherwise, includes not only the original certificate of incorporation filed to create the corporation but also all other certificates, agreements of merger or consolidation, plans of reorganization, or other instruments, howsoever designated, filed pursuant to the General Corporation Law of Delaware which have the effect of amending or supplementing in some respect the corporation's original certificate of incorporation. ARTICLE II. Annual Meeting An annual meeting of stockholders shall be held for the election of directors and for the transaction of any other business for the transaction of which the meeting shall have been properly convened on the fourth Thursday in April in each year, within or without the State of Delaware, and at such time as shall be fixed by the board of directors and specified in the notice of the meeting, if such date is not a legal holiday and if a legal holiday, then at the same hour on the next succeeding day not a legal holiday. Any other proper business may be transacted at the annual meeting. If the annual meeting for election of directors shall not be held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. ARTICLE III. Special Meetings Of Stockholders Special meetings of the stockholders may be held either within or without the State of Delaware, at such time and place and for such purposes as shall be specified in a call for such meeting made by the board of directors or by a writing filed with the secretary signed by the president, by any vice president or by a majority of the directors. -2- ARTICLE IV. Notice of Stockholders' Meetings Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, which notice shall be given not less than ten nor more than sixty days before the date of the meeting, except where longer notice is required by law, to each stockholder entitled to vote at such meeting, by leaving such notice with him or by mailing it, postage prepaid, directed to him at his address as it appears upon the records of the corporation. In case of the death, absence, incapacity or refusal of the secretary, such notice may be given by a person designated either by the secretary or by the person or persons calling the meeting or by the board of directors. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. ARTICLE V. Quorum of Stockholders; Stockholder List At any meeting of the stockholders, a majority of all shares issued and outstanding and entitled to vote upon a question to be considered at the meeting shall constitute a quorum for the consideration of such question when represented at such meeting by the holders thereof in person or by their duly constituted and authorized attorney or attorneys, but a less interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting a majority of the stock so represented thereat and entitled to vote shall, except where a larger vote is required by law, by the certificate of incorporation or by these by-laws, decide any question brought before such meeting. The secretary or other officer having charge of the stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall have been specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. Said list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence -3- as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this Article or the books of the corporation, or the stockholders entitled to vote in person or by proxy at any meeting of stockholders. ARTICLE VI. Proxies and Voting Except as otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of the capital stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders or to express dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy but (except as otherwise expressly permitted by law) no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or so long as it is coupled with an interest sufficient in law to support an irrevocable power. Unless otherwise provided in the certificate of incorporation, any action required by law to, or which may, be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote therein were present and voted. Prompt notice of the taking of such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE VII. Stockholders' Record Date In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to -4- notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the board of directors is required, shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. ARTICLE VIII. Board of Directors Except as otherwise provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by the board of directors. The number of directors shall be such number, not fewer than one nor more than seven, as may be fixed for any corporate year and elected by the stockholders at the annual meeting. During any year the board of directors may be enlarged and additional directors elected to complete the enlarged number, to not more than the maximum number above specified, by the stockholders at any meeting or by a vote of a majority of the directors then in office. The stockholders may, at any meeting held for the purpose during such year, decrease, to not fewer than the minimum number above specified, the number of directors as thus fixed or enlarged and remove directors to the decreased number. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. No director need be a stockholder. ARTICLE IX. Committees The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee -5- and may define the number and qualifications which shall constitute a quorum of such committee. Except as otherwise limited by law, any such committee, to the extent provided in the resolution appointing such committee, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of a member of committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE X. Meetings of the Board of Directors and of Committees Regular meetings of the board of directors may be held without call or formal notice at such places either within or without the State of Delaware and at such times as the board may by vote from time to time determine. Special meetings of the board of directors may be held at any place either within or without the State of Delaware at any time when called by the president, treasurer, secretary or two or more directors, reasonable notice of the time and place thereof being given to each director. A waiver of such notice in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In any case it shall be deemed sufficient notice to a director to send notice by mail at least forty-eight hours, or to deliver personally or to send notice by telegram at least twenty-four hours, before the meeting, addressed to him at his usual or last known business or residence address. Unless otherwise restricted by the certificate of incorporation or by other provisions of these by-laws, (a) any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the board or committee, and (b) members of the board of directors or of any committee designated by the board may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. ARTICLE XI. Quorum of The Board of Directors Except as otherwise expressly provided in the certificate of incorporation or in these by-laws, a majority of the total number of directors at the time in office shall constitute a quorum for the transaction of business, but a less number may adjourn any meeting from time to time. Except as otherwise so expressly provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, provided, that the affirmative vote in good faith of a majority of the disinterested directors, even though the -6- disinterested directors shall be fewer than a quorum, shall be sufficient to authorize a contract or transaction in which one or more directors have interest if the material facts as to such interest and the relation of the interested directors to the contract or transaction have been disclosed or are known to the directors. ARTICLE XII. Waiver of Notice of Meetings Whenever notice is required to be given under any provision of law or the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws. ARTICLE XIII. Officers and Agents The corporation shall have a president, secretary and treasurer, who shall be chosen by the directors, each of whom shall hold his office until his successor has been chosen and qualified or until his earlier resignation or removal. The corporation may have such other officers and agents as are desired, each of whom shall be chosen by the board of directors including one or more vice presidents, assistant treasurers, and assistant secretaries and shall hold his office for such term and have such authority and duties as shall be determined by the board of directors. The board of directors may secure the fidelity of any or all of such officers or agents by bond or otherwise. Any number of offices may be held by the same person. Each officer shall, subject to these by-laws, have in addition to the duties and powers herein set forth, such duties and powers as the board of directors shall from time to time designate. In all cases where the duties of any officer, agent or employee are not specifically prescribed by the by-laws, or by the board of directors, such officer, agent or employee shall obey the orders and instructions of the president. Any officer may resign at any time upon written notice to the corporation. ARTICLE XIV. President The president shall, subject to the direction and under the supervision of the board of directors, be the chief operating officer of the corporation and shall have general and active control of its affairs and business and general supervision over its officers, agents and employees. The president shall have custody of the treasurer's bond, if any. -7- ARTICLE XV. Secretary The secretary shall record all the proceedings of the meetings of the stockholders and directors in a book, which shall be the property of the corporation, to be kept for that purpose; and perform such other duties as shall be assigned to him by the board of directors. In the absence of the secretary from any such meeting, a temporary secretary shall be chosen, who shall record the proceedings of such meeting in the aforesaid book. ARTICLE XVI. Treasurer The treasurer shall be the chief financial officer and the treasurer shall, subject to the direction and under the supervision of the board of directors, have the care and custody of the funds and valuable papers of the corporation, except his own bond, and he shall, except as the board of directors shall generally or in particular cases authorize the endorsement thereof in some other manner, have power to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money to the corporation or its order. He shall keep, or cause to be kept, accurate books of account, which shall be the property of the corporation. ARTICLE XVII. Removals The stockholders may, at any meeting called for the purpose, by vote of a majority of the capital stock issued and outstanding and entitled to vote thereon, remove any director from office. The board of directors may, at any meeting called for the purpose, by vote of a majority of their entire number remove from office any officer or agent of the corporation or any member of any committee appointed by the board of directors or by any committee appointed by the board of directors or by any officer or agent of the corporation. ARTICLE XVIII. Vacancies Any vacancy occurring in any office or any directorship of the corporation by death, resignation, removal or otherwise and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office (though less than a quorum) or by a sole remaining director and each of the incumbents so chosen shall hold office for the unexpired term in respect of which the vacancy occurred and until his successor shall have been duly elected and qualified or for such shorter period as shall be specified in the filling of such vacancy or, if such vacancy shall have occurred in the office of director, until such a successor shall have been chosen by the stockholders. -8- ARTICLE XIX. Certificates of Stock Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors (if one shall be incumbent) or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation of its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the 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 shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish, without charge to each stockholder who so requests, the 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. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. ARTICLE XX. Loss of Certificate The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the directors may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate in its place and upon such other terms or without any such bond which the board of directors shall prescribe. ARTICLE XXI. Seal The corporate seal shall, subject to alteration by the board of directors, consist of a flat-faced circular die with the word "Delaware" together with the name of the corporation and the -9- year of its organization cut or engraved thereon. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE XXII. Execution of Papers Except as otherwise provided in these by-laws or as the board of directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation, shall be signed by the president or by the treasurer. ARTICLE XXIII. Fiscal Year Except as from time to time otherwise provided by the board of directors, the fiscal year of the corporation shall end on the last day of December of each year. ARTICLE XXIV. Amendments Except as otherwise provided by law or by the certificate of incorporation, these by-laws, as from time to time altered, amended or repealed may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders called for the purpose, of which the notice shall specify the subject matter of the proposed alteration or amendment or new by-law. If the certificate of incorporation so provides, these by-laws may also be made, altered, amended or repealed or new by-laws may be adopted by a majority of the whole number of directors. Such action may be taken at any regular or special meeting of the board of directors at which a quorum is present, of which notice shall have been given as for a meeting of stockholders. EX-99.(T3B)(23) 40 b42413a1ex99-t3b23.txt FORM OF AMEND & RESTATED BY-LAWS ARCH CONN VALLEY Exhibit T3B-23 AMENDED AND RESTATED BY-LAWS OF ARCH CONNECTICUT VALLEY, INC. TABLE OF CONTENTS
Page ---- ARTICLE 1 - Stockholders........................................................................................ 1 1.1 Place of Meetings................................................................................. 1 1.2 Annual Meeting.................................................................................... 1 1.3 Special Meetings.................................................................................. 1 1.4 Notice of Meetings................................................................................ 1 1.5 Quorum............................................................................................ 2 1.6 Adjournments...................................................................................... 2 1.7 Voting and Proxies................................................................................ 2 1.8 Action at Meeting................................................................................. 2 1.9 Action without Meeting............................................................................ 3 ARTICLE 2 - Directors........................................................................................... 3 2.1 Powers............................................................................................ 3 2.2 Number, Election and Qualification................................................................ 3 2.3 Enlargement of the Board.......................................................................... 3 2.4 Tenure............................................................................................ 3 2.5 Vacancies......................................................................................... 3 2.6 Resignation....................................................................................... 3 2.7 Removal........................................................................................... 3 2.8 Regular Meetings.................................................................................. 4 2.9 Special Meetings.................................................................................. 4 2.10 Meetings by Telephone Conference Calls............................................................ 4 2.11 Notice of Special Meetings........................................................................ 4 2.12 Quorum............................................................................................ 4 2.13 Action at Meeting................................................................................. 4 2.14 Action by Consent................................................................................. 5 2.15 Committees........................................................................................ 5 2.16 Compensation of Directors......................................................................... 5 ARTICLE 3 - Officers............................................................................................ 5 3.1 Enumeration....................................................................................... 5 3.2 Election.......................................................................................... 5 3.3 Qualification..................................................................................... 5 3.4 Tenure............................................................................................ 5 3.5 Resignation and Removal........................................................................... 5 3.6 Vacancies......................................................................................... 6 3.7 Chairman of the Board and Chief Executive Officer................................................. 6 3.8 President......................................................................................... 6 3.9 Vice Presidents................................................................................... 6 3.10 Treasurer and Assistant Treasurers................................................................ 7 3.11 Clerk and Assistant Clerks........................................................................ 7 3.12 Secretary and Assistant Secretaries............................................................... 7 3.13 Salaries.......................................................................................... 8
i ARTICLE 4 - Capital Stock....................................................................................... 8 4.1 Issue of Capital Stock............................................................................ 8 4.2 Certificate of Stock.............................................................................. 8 4.3 Transfers......................................................................................... 8 4.4 Record Date....................................................................................... 9 4.5 Replacement of Certificates....................................................................... 9 ARTICLE 5 - Miscellaneous Provisions............................................................................ 9 5.1 Fiscal Year....................................................................................... 9 5.2 Seal.............................................................................................. 9 5.3 Voting of Securities.............................................................................. 9 5.4 Corporate Records................................................................................. 9 5.5 Evidence of Authority............................................................................. 10 5.6 Articles of Organization.......................................................................... 10 5.7 Severability...................................................................................... 10 5.8 Pronouns.......................................................................................... 10 ARTICLE 6 - Amendments.......................................................................................... 10
ii AMENDED AND RESTATED BY-LAWS OF ARCH CONNECTICUT VALLEY, INC. ARTICLE 1 - Stockholders 1.1 Place of Meetings. All meetings of stockholders shall be held within the Commonwealth of Massachusetts unless the Articles of Organization permit the holding of stockholders' meetings outside Massachusetts, in which event such meetings may be held either within or without Massachusetts. Meetings of stockholders shall be held at the principal office of the corporation unless a different place is fixed by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President and stated in the notice of the meeting. 1.2 Annual Meeting. The annual meeting of stockholders shall be held within six months after the end of each fiscal year of the corporation on a date to be fixed by the Board of Directors or the Chairman of the Board (which date shall not be a legal holiday in the place where the meeting is to be held) at the time and place to be fixed by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President and stated in the notice of the meeting. The purposes for which the annual meeting is to be held, in addition to those prescribed by law, by the Articles of Organization or by these By-Laws, may be specified by the Board of Directors or the Chairman of the Board. If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual meeting, and in such case all references in these By-Laws to the annual meeting of stockholders shall be deemed to refer to such special meeting. 1.3 Special Meetings. Special meetings of stockholders may be called by the Chairman of the Board or by the Board of Directors. In addition, upon written application of one or more stockholders who are entitled to vote and who hold at least the Required Percentage (as defined below) of the capital stock entitled to vote at the meeting, special meetings shall be called by the Clerk, or in case of the death, absence, incapacity or refusal of the Clerk, by any other officer. For purposes of this Section 1.3, the "Required Percentage" shall be (i) 10% at any time at which the corporation shall not have a class of voting stock registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (ii) 80% or such lesser percentage as shall constitute the maximum percentage permitted by law for this purpose at any time at which the corporation shall have a class of voting stock registered under the Exchange Act. 1.4 Notice of Meetings. A written notice of each meeting of stockholders, stating the place, date and hour thereof, and the purposes for which the meeting is to be held, shall be given by the Clerk, Assistant Clerk or other person calling the meeting at least seven days before the meeting to each stockholder entitled to vote at the meeting and to each stockholder who by law, by the Articles of Organization or by these By-Laws is entitled to such notice, by leaving such notice with him or at his residence or usual place of business, or by mailing it postage prepaid and addressed to him at his address as it appears in the records of the corporation. Whenever any notice is required to be given to a stockholder by law, by the Articles of Organization or by these By-Laws, no such notice need be given if a written waiver of notice, executed before or after the meeting by the stockholder or his authorized attorney, is filed with the records of the meeting. 1.5 Quorum. Unless the Articles of Organization otherwise provide, the holders of a majority of the number of shares of the stock issued, outstanding and entitled to vote on any matter shall constitute a quorum with respect to that matter, except that if two or more classes of stock are outstanding and entitled to vote as separate classes, then in the case of each such class a quorum shall consist of the holders of a majority of the number of shares of the stock of that class issued, outstanding and entitled to vote. Shares owned directly or indirectly by the corporation shall not be counted in determining the total number of shares outstanding for this purpose. 1.6 Adjournments. Except as provided in Section 1.3 hereof, any meeting of stockholders may be adjourned to any other time and to any other place at which a meeting of stockholders may be held under these By-Laws by the stockholders present or represented at the meeting, although less than a quorum, or by any officer entitled to preside or to act as clerk of such meeting, if no stockholder is present. It shall not be necessary to notify any stockholder of any adjournment. Any business which could have been transacted at any meeting of the stockholders as originally called may be transacted at any adjournment of the meeting. 1.7 Voting and Proxies. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided by the Articles of Organization. Stockholders may vote either in person or by written proxy dated not more than six months before the meeting named in the proxy. Proxies shall be filed with the clerk of the meeting, or of any adjourned meeting, before being voted. Except as otherwise limited by their terms, a proxy shall entitle the persons named in the proxy to vote at any adjournment of such meeting, but shall not be valid after final adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by any one of them, unless at or prior to exercise of the proxy the corporation receives a specific written notice to the contrary from any one of them. A proxy purported to be executed by or on behalf of a stockholder shall be deemed valid unless challenged at or prior to its exercise. 1.8 Action at Meeting. When a quorum is present at any meeting, the holders of shares of stock representing a majority of the votes cast on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of shares of stock of that class representing a majority of the votes cast on a matter), shall decide any matter to be voted on by the stockholders, except when a different vote is required by law, the Articles of Organization or these By-Laws. When a quorum is present at any meeting, any election by stockholders shall be determined by a plurality of the votes cast on the election. No ballot shall be required for such election unless requested by a stockholder present or represented at the meeting and entitled to vote in the election. The corporation shall not directly or indirectly vote any share of its own stock. 2 1.9 Action without Meeting. Any action required or permitted to be taken at any meeting of the stockholders may be taken without a meeting if all stockholders entitled to vote on the matter consent to the action in writing and the written consents are filed with the records of the meetings of stockholders. Each such consent shall be treated for all purposes as a vote at a meeting. ARTICLE 2 - Directors 2.1 Powers. The business of the corporation shall be managed by a Board of Directors, who may exercise all the powers of the corporation except as otherwise provided by law, by the Articles of Organization or by these By-Laws. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled. 2.2 Number, Election and Qualification. The number of Directors which shall constitute the whole Board of Directors shall be determined by vote of the stockholders or the Board of Directors, but shall consist of not less than three Directors (except that whenever there shall be only two stockholders the number of Directors shall be not less than two and whenever there shall be only one stockholder or prior to the issuance of any stock, there shall be at least one Director). The number of Directors may be decreased at any time and from time to time either by the stockholders or by a majority of the Directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more Directors. The Directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. No Director need be a stockholder of the corporation. 2.3 Enlargement of the Board. The number of Directors may be increased at any time and from time to time by the stockholders or by a majority of the Directors then in office. 2.4 Tenure. Each Director shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, or until his earlier death, resignation or removal. 2.5 Vacancies. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of a majority of the Directors present at any meeting of Directors at which a quorum is present. Each such successor shall hold office for the unexpired term of his predecessor and until his successor is chosen and qualified or until his earlier death, resignation or removal. 2.6 Resignation. Any Director may resign by delivering his written resignation to the corporation at its principal office or to the Chairman of the Board, President or Clerk. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. 2.7 Removal. A Director may be removed from office with or without cause by vote of the holders of a majority of the shares entitled to vote in the election of Directors. However, the Directors elected by the holders of a particular class or series of stock may be removed from 3 office with or without cause only by vote of the holders of a majority of the outstanding shares of such class or series. In addition, a Director may be removed from office for cause by vote of a majority of the Directors then in office. A Director may be removed for cause only after reasonable notice and opportunity to be heard before the body proposing to remove him. 2.8 Regular Meetings. Regular meetings of the Directors may be held without call or notice at such places, within or without Massachusetts, and at such times as the Directors may from time to time determine, provided that any Director who is absent when such determination is made shall be given notice of the determination. A regular meeting of the Directors may be held without a call or notice immediately after and at the same place as the annual meeting of stockholders. 2.9 Special Meetings. Special meetings of the Directors may be held at any time and place, within or without Massachusetts, designated in a call by the Chairman of the Board, the Chief Executive Officer, President, Treasurer, two or more Directors or by one Director in the event that there is only a single Director in office. 2.10 Meetings by Telephone Conference Calls. Directors or members of any committee designated by the Directors may participate in a meeting of the Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at a meeting. 2.11 Notice of Special Meetings. Notice of any special meeting of the Directors shall be given to each Director by the Secretary or Clerk or by the officer or one of the Directors calling the meeting. Notice shall be duly given to each Director (i) by notice given to such Director in person or by telephone at least 48 hours in advance of the meeting, (ii) by sending a telegram or telex, or by delivering written notice by hand, to his last known business or home address at least 48 hours in advance of the meeting, or (iii) by mailing written notice to his last known business or home address at least 72 hours in advance of the meeting. Notice need not be given to any Director if a written waiver of notice, executed by him before or after the meeting, is filed with the records of the meeting, or to any Director who attends the meeting without protesting prior to the meeting or at its commencement the lack of notice to him. A notice or waiver of notice of a Directors' meeting need not specify the purposes of the meeting. If notice is given in person or by telephone, an affidavit of the Secretary, Clerk, officer or Director who gives such notice that the notice has been duly given shall, in the absence of fraud, be conclusive evidence that such notice was duly given. 2.12 Quorum. At any meeting of the Board of Directors, a majority of the Directors then in office shall constitute a quorum for the transaction of business. Less than a quorum may adjourn any meeting from time to time without further notice. 2.13 Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, by the Articles of Organization or by these By-Laws. 4 2.14 Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all the Directors consent to the action in writing and the written consents are filed with the records of the Directors' meetings. Each such consent shall be treated for all purposes as a vote at a meeting. 2.15 Committees. The Board of Directors may, by vote of a majority of the Directors then in office, elect from their number an executive committee or other committees and may by like vote delegate to committees so elected some or all of their powers to the extent permitted by law. Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided by these By-Laws for the Directors. The Board of Directors shall have the power at any time to fill vacancies in any such committee, to change its membership or to discharge the committee. 2.16 Compensation of Directors. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any Director from serving the corporation in any other capacity and receiving compensation therefor. ARTICLE 3 - Officers 3.1 Enumeration. The officers of the corporation shall consist of a President, a Treasurer, a Clerk and such other officers with such other titles as the Board of Directors may determine, including, but not limited to, a Chairman of the Board, a Vice Chairman of the Board, a Secretary and one or more Vice Presidents, Assistant Treasurers, Assistant Clerks and Assistant Secretaries. 3.2 Election. The President, Treasurer and Clerk shall be elected annually by the Board of Directors at their first meeting following the annual meeting of stockholders. Other officers may be chosen or appointed by the Board of Directors at such meeting or at any other meeting. 3.3 Qualification. Neither the President nor any other officer need be a director or stockholder. Any two or more offices may be held by the same person. The Clerk shall be a resident of Massachusetts unless the corporation has a resident agent appointed for the purpose of service of process. Any officer may be required by the Directors to give bond for the faithful performance of his duties to the corporation in such amount and with such sureties as the Directors may determine. The premiums for such bonds may be paid by the corporation. 3.4 Tenure. Except as otherwise provided by law, by the Articles of Organization or by these By-Laws, the President, Treasurer and Clerk shall hold office until the first meeting of the Directors following the next annual meeting of stockholders and until their respective successors are chosen and qualified; and all other officers shall hold office until the first meeting of the Directors following the annual meeting of stockholders, unless a different term is specified in the vote choosing or appointing them, or until his earlier death, resignation or removal. 3.5 Resignation and Removal. Any officer may resign by delivering his written resignation to the corporation at its principal office or to the Chairman of the Board, President, 5 Clerk or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of Directors then in office. An officer may be removed for cause only after reasonable notice and opportunity to be heard by the Board of Directors prior to action thereon. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following his resignation or removal, or any right to damages on account of such removal, whether his compensation be by the month or the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the corporation. 3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Clerk. Each such successor shall hold office for the unexpired term of his predecessor and until his successor is chosen and qualified, or until his earlier death, resignation or removal. 3.7 Chairman of the Board and Chief Executive Officer. The Board of Directors may appoint a Chairman of the Board. If the Board of Directors appoints a Chairman of the Board, such Chairman shall perform such duties and posses such powers as are assigned by the Board of Directors and, if the Chairman of the Board is also designated as the corporation's Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in this Section 3.7. Unless otherwise provided by the Board of Directors, the Chairman of the Board shall preside at all meetings of the Board of Directors and stockholders. Unless the Board of Directors has designated the President or another person as the corporation's Chief Executive Officer, the Chairman of the Board shall be the Chief Executive Officer of the corporation. The Chief Executive Officer shall have general charge and supervision of the business of the corporation subject to the direction of the Board of Directors. 3.8 President. The President shall perform such duties and shall possess such powers as the Chairman of the Board or the Board of Directors may from time to time prescribe, or as may otherwise be required by law. In the absence of the Chairman of the Board or if there is no Chairman of the Board, the President shall perform the duties and exercise the powers designated to the Chairman of the Board under these By-Laws. 3.9 Vice Presidents. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the Chairman of the Board may from time to time prescribe. In the event of the absence, inability or refusal to act of the President, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors. 6 3.10 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned to him by the Board of Directors or the Chairman of the Board. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including, without limitation, the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these By-Laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation. The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the Chairman of the Board or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer. 3.11 Clerk and Assistant Clerks. The Clerk shall perform such duties and shall possess such powers as the Board of Directors or the Chairman of the Board may from time to time prescribe. In addition, the Clerk shall perform such duties and have such powers as are incident to the office of the clerk, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents. Any Assistant Clerk shall perform such duties and possess such powers as the Board of Directors, the Chairman of the Board or the Clerk may from time to time prescribe. In the event of the absence, inability or refusal to act of the Clerk, the Assistant Clerk (or if there shall be more than one, the Assistant Clerks in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Clerk. In the absence of the Clerk or any Assistant Clerk at any meeting of stockholders or Directors, the person presiding at the meeting shall designate a temporary clerk to keep a record of the meeting. 3.12 Secretary and Assistant Secretaries. If a Secretary is appointed, he shall attend all meetings of the Board of Directors and shall keep a record of the meetings of the Directors. He shall, when required, notify the Directors of their meetings, and shall possess such other powers and shall perform such other duties as the Board of Directors or the Chairman of the Board may from time to time prescribe. Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Chairman of the Board or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary. 7 3.13 Salaries. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors. ARTICLE 4 - Capital Stock 4.1 Issue of Capital Stock. Unless otherwise voted by the stockholders, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of the capital stock of the corporation held in its treasury may be issued or disposed of by vote of the Board of Directors, in such manner, for such consideration and on such terms as the Directors may determine. 4.2 Certificate of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the corporation in such form as may be prescribed from time to time by the Directors. The certificate shall be signed by the President or a Vice President, and by the Treasurer or an Assistant Treasurer, but when a certificate is countersigned by a transfer agent or a registrar, other than a Director, officer or employee of the corporation, such signature may be a facsimile. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer pursuant to the Articles of Organization, the By-Laws, applicable securities laws or any agreement to which the corporation is a party, shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction and a statement that the corporation will furnish a copy of the restriction to the holder of such certificate upon written request and without charge. Every certificate issued when the corporation is authorized to issue more than one class or series of stock shall set forth on its face or back either the full text of the preferences, voting powers, qualifications and special and relative rights of the shares of each class and series authorized to be issued or a statement of the existence of such preferences, powers, qualifications and rights and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. 4.3 Transfers. Subject to the restrictions, if any, stated or noted on the stock certificates, shares of stock may be transferred on the books of the corporation by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Articles of Organization or by these By-Laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-Laws. 8 It shall be the duty of each stockholder to notify the corporation of his post office address and of his taxpayer identification number. 4.4 Record Date. The Board of Directors may fix in advance a time not more than 60 days preceding the date of any meeting of stockholders or the date for the payment of any dividend or the making of any distribution to stockholders or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the stockholders having the right to notice of and to vote at such meeting, and any adjournment, or the right to receive such dividend or distribution or the right to give such consent or dissent. In such case only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the corporation after the record date. Without fixing such record date the Directors may for any of such purposes close the transfer books for all or any part of such period. If no record date is fixed and the transfer books are not closed, the record date for determining the stockholders having the right to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, and the record date for determining the stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors acts with respect to such purpose. 4.5 Replacement of Certificates. In case of the alleged loss or destruction or the mutilation of a certificate of stock, a duplicate certificate may be issued in place of the lost, destroyed or mutilated certificate, upon such terms as the Directors may prescribe, including the presentation of reasonable evidence of such loss, destruction or mutilation and the giving of such indemnity as the Directors may require for the protection of the corporation or any transfer agent or registrar. ARTICLE 5 - Miscellaneous Provisions 5.1 Fiscal Year. Except as otherwise set forth in the Articles of Organization or as otherwise determined from time to time by the Board of Directors, the fiscal year of the corporation shall in each year end on December 31. 5.2 Seal. The seal of the corporation shall, subject to alteration by the Directors, bear its name, the word "Massachusetts" and the year of its incorporation. 5.3 Voting of Securities. Except as the Board of Directors may otherwise designate, the Chairman of the Board, President or Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation. 5.4 Corporate Records. The original, or attested copies, of the Articles of Organization, By-Laws and records of all meetings of the incorporators and stockholders, and the stock records, which shall contain the names of all stockholders and the record address and the amount of stock held by each, shall be kept in Massachusetts at the principal office of the corporation, or at an office of its transfer agent or of the Clerk. These copies and records need not all be kept in the same office. They shall be available at all reasonable times for the 9 inspection of any stockholder for any proper purpose, but not to secure a list of stockholders for the purpose of selling the list or copies of the list or of using the list for a purpose other than in the interest of the applicant, as a stockholder, relative to the affairs of the corporation. 5.5 Evidence of Authority. A certificate by the Clerk or Secretary, or an Assistant Clerk or Assistant Secretary, or a temporary Clerk or temporary Secretary, as to any action taken by the stockholders, Directors, any committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action. 5.6 Articles of Organization. All references in these By-Laws to the Articles of Organization shall be deemed to refer to the Articles of Organization of the corporation, as amended and in effect from time to time. 5.7 Severability. Any determination that any provision of these By-Laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these By-Laws. 5.8 Pronouns. All pronouns used in these By-Laws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. ARTICLE 6 - Amendments These By-Laws may be amended by vote of the holders of a majority of the shares of each class of the capital stock at the time outstanding and entitled to vote at any annual or special meeting of stockholders, if notice of the substance of the proposed amendment is stated in the notice of such meeting. If authorized by the Articles of Organization, the Directors, by a majority of their number then in office, may also make, amend or repeal these By-Laws, in whole or in part, except with respect to (a) the provisions of these By-Laws governing (i) the removal of Directors and (ii) the amendment of these By-Laws and (b) any provision of these By-Laws which by law, the Articles of Organization or these By-Laws requires action by the stockholders. Not later than the time of giving notice of the meeting of stockholders next following the making, amending or repealing by the Directors of any By-Law, notice stating the substance of such change shall be given to all stockholders entitled to vote on amending the By-Laws. Any By-Law adopted by the Directors may be amended or repealed by the stockholders entitled to vote on amending the By-Laws. 10 EX-99.T3C 41 b42413a1ex99-t3c.txt INDENTURE ARCH WIRELESS HOLDINGS, INC., as Issuer 10% SENIOR SUBORDINATED SECURED NOTES DUE 2007 INDENTURE Dated as of [ ], 2002 THE BANK OF NEW YORK, as Trustee TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION ..... 1 SECTION 1.01. Definitions ................................................. 2 SECTION 1.02. Other Definitions ........................................... 15 SECTION 1.03. Incorporation by Reference of the Trust Indenture Act ....... 15 SECTION 1.04. Form of Documents Delivered to Trustee ...................... 15 SECTION 1.05. Acts of Holders; Record Dates ............................... 16 SECTION 1.06. Benefits of Indenture ....................................... 17 SECTION 1.07. Legal Holidays .............................................. 17 ARTICLE II THE NOTES ......................................................... 17 SECTION 2.01. Title and Terms ............................................. 17 SECTION 2.02. Form and Dating ............................................. 18 SECTION 2.03. Execution and Authentication ................................ 18 SECTION 2.04. Registrar, Paying Agent and Depositary ...................... 19 SECTION 2.05. Paying Agent to Hold Money in Trust ......................... 19 SECTION 2.06. Holder Lists ................................................ 19 SECTION 2.07. Transfer and Exchange ....................................... 19 SECTION 2.08. Legends ..................................................... 21 SECTION 2.09. Temporary Notes ............................................. 22 SECTION 2.10. Mutilated, Destroyed, Lost and Stolen Notes ................. 22 SECTION 2.11. Payment of Interest; Interest Rights Preserved .............. 23 SECTION 2.12. Persons Deemed Owners ....................................... 24 SECTION 2.13. Cancellation ................................................ 24 SECTION 2.14. CUSIP Numbers ............................................... 24 ARTICLE III SATISFACTION AND DISCHARGE .................................. 24 SECTION 3.01. Satisfaction and Discharge of Indenture ..................... 24 SECTION 3.02. Application of Trust Money .................................. 25 ARTICLE IV REMEDIES .......................................................... 25 SECTION 4.01. Events of Default ........................................... 25 SECTION 4.02. Acceleration of Maturity; Exercise of Remedies .............. 27 SECTION 4.03. Waiver of Past Defaults ..................................... 27 SECTION 4.04. Collection of Indebtedness and Suits for Enforcement ........ by Trustee .................................................. 28 SECTION 4.05. Trustee May File Proofs of Claim ............................ 28 SECTION 4.06. Application of Money Collected .............................. 28 SECTION 4.07. Limitation on Suits ......................................... 29
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PAGE SECTION 4.08. Unconditional Right of Holders to Receive Principal, Premium and Interest .................................... 29 SECTION 4.09. Restoration of Rights and Remedies .......................... 29 SECTION 4.10. Rights and Remedies Cumulative .............................. 29 SECTION 4.11. Delay or Omission Not Waiver ................................ 30 SECTION 4.12. Control by Majority Noteholders ............................. 30 SECTION 4.13. Undertaking for Costs ....................................... 30 SECTION 4.14. Waiver of Stay or Extension Laws ............................ 30 ARTICLE V THE TRUSTEE ....................................................... 30 SECTION 5.01. Certain Duties and Responsibilities ......................... 30 SECTION 5.02. Notice of Defaults .......................................... 31 SECTION 5.03. Certain Rights of Trustee ................................... 31 SECTION 5.04. Not Responsible for Recitals or Issuance of Notes ........... 32 SECTION 5.05. May Hold Notes .............................................. 32 SECTION 5.06. Money Held in Trust ......................................... 32 SECTION 5.07. Compensation and Reimbursement .............................. 32 SECTION 5.08. Disqualification; Conflicting Interests ..................... 33 SECTION 5.09. Corporate Trustee Required; Eligibility ..................... 34 SECTION 5.10. Resignation and Removal; Appointment of Successor ........... 34 SECTION 5.11. Acceptance of Appointment by Successor ...................... 35 SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business . 35 SECTION 5.13. Preferential Collection of Claims Against Company ........... 35 SECTION 5.14. Appointment of Co-Trustee ................................... 35 ARTICLE VI HOLDERS' LISTS AND REPORTS BY TRUSTEE ....................... 36 SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders ... 36 SECTION 6.02. Preservation of Information; Communications to Holders ...... 36 SECTION 6.03. Reports by Trustee .......................................... 37 ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE .............. 37 SECTION 7.01. Consolidation, Etc., Only on Certain Terms .................. 37 SECTION 7.02. Successor Substituted ....................................... 38 ARTICLE VIII SUPPLEMENTAL INDENTURES ..................................... 38 SECTION 8.01. Supplemental Indentures Without Consent of Holders .......... 38 SECTION 8.02. Supplemental Indentures with Consent of Holders and Majority Noteholders .................................... 38
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PAGE SECTION 8.03. Execution of Supplemental Indentures ........................ 39 SECTION 8.04. Effect of Supplemental Indentures ........................... 40 SECTION 8.05. Conformity with Trust Indenture Act ......................... 40 SECTION 8.06. Reference in Notes to Supplemental Indentures ............... 40 ARTICLE IX REDEMPTION OF NOTES ............................................... 40 SECTION 9.01. Optional Redemption ......................................... 40 SECTION 9.02. Mandatory Redemption; Mandatory Prepayment; Use of .......... 40 Excess Cash Flow ............................................ SECTION 9.03. Applicability of Article .................................... 41 SECTION 9.04. Election to Redeem; Notice to Trustee ....................... 41 SECTION 9.05. Selection by Trustee of Notes to Be Redeemed ................ 41 SECTION 9.06. Notice of Redemption ........................................ 41 SECTION 9.07. Deposit of Redemption Price ................................. 42 SECTION 9.08. Notes Payable on Redemption Date ............................ 42 SECTION 9.09. Notes Redeemed in Part ...................................... 43 ARTICLE X COVENANTS ......................................................... 43 SECTION 10.01. Payment of Principal, Premium and Interest .................. 43 SECTION 10.02. Maintenance of Office or Agency ............................. 43 SECTION 10.03. Money for Note Payments to be Held in Trust ................. 43 SECTION 10.04. Existence; Conduct of Business .............................. 44 SECTION 10.05. Payment and Performance of Obligations ...................... 44 SECTION 10.06. Additional Domestic Subsidiaries; Material Foreign Subsidiaries ....................................... 44 SECTION 10.07. Indebtedness ................................................ 45 SECTION 10.08. Liens ....................................................... 46 SECTION 10.09. Fundamental Changes ......................................... 46 SECTION 10.10. Investments ................................................. 46 SECTION 10.11. Asset Sales ................................................. 47 SECTION 10.12. Restricted Payments ......................................... 47 SECTION 10.13. Prepayments of Indebtedness ................................. 48 SECTION 10.14. Transactions with Affiliates ................................ 48 SECTION 10.15. Repurchase Upon a Change of Control ......................... 49 SECTION 10.16. Dividend and Other Payment Restrictions Affecting Subsidiaries ............................................... 50 SECTION 10.17. Compliance with Laws; Etc. .................................. 50 SECTION 10.18. Maintenance of Insurance .................................... 50 SECTION 10.19. Change in Nature of Business ................................ 50
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PAGE SECTION 10.20. Accounting Changes; Fiscal Year ............................. 51 SECTION 10.21. Minimum EBITDA .............................................. 51 SECTION 10.22. Minimum Direct Units in Service ............................. 51 SECTION 10.23. Minimum Consolidated SRM Revenues ........................... 52 SECTION 10.24. Non-Device Capital Expenditures ............................. 53 SECTION 10.25. Device Capital Expenditures ................................. 55 SECTION 10.26. Provision of Financial Statements ........................... 56 SECTION 10.27. Statement by Officers as to Default; Notice of Default ...... 56 ARTICLE XI COLLATERAL ........................................................ 56 SECTION 11.01. Collateral .................................................. 56 SECTION 11.02. Recording and Opinions ...................................... 57 SECTION 11.03. Possession and Use of Collateral ............................ 57 SECTION 11.04. Release and Disposition of Collateral ....................... 58 SECTION 11.05. Disposition of Collateral Without Release ................... 58 ARTICLE XII GUARANTEES .................................................. 59 SECTION 12.01. Guarantees .................................................. 59 SECTION 12.02. Subordination of Guarantee .................................. 60 SECTION 12.03. Limitation on Guarantor Liability ........................... 60 SECTION 12.04. Execution and Delivery of Guarantee ......................... 61 SECTION 12.05. Guarantors May Consolidate, etc., on Certain Terms .......... 61 SECTION 12.06. Releases Following Sale of Assets ........................... 61 ARTICLE XIII SUBORDINATION ..................................................... 62 SECTION 13.01. Agreement to Subordinate .................................... 62 SECTION 13.02. Liquidation, Dissolution or Bankruptcy ...................... 62 SECTION 13.03. Default on Senior Debt ...................................... 63 SECTION 13.04. Rights and Obligations of the Trustee and the Holders ....... 63 SECTION 13.05. Subrogation ................................................. 64 SECTION 13.06. Obligations of Company Unconditional ........................ 64 SECTION 13.07. Notice by the Company ....................................... 64 SECTION 13.08. Right as Holder of Senior Debt .............................. 64 SECTION 13.09. Reinstatement ............................................... 65 SECTION 13.10. Rights of Trustee and Paying Agent .......................... 65 SECTION 13.11. Trust Moneys Not Subordinated ............................... 65 SECTION 13.12. Trustee To Effectuate Subordination ......................... 65
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PAGE SECTION 13.13. Trustee Not Fiduciary for Holders of Senior Debt ............ 65 SECTION 13.14. Reliance by Holders of Senior Debt on Subordination Provisions ................................... 65 ARTICLE XIV MISCELLANEOUS ..................................................... 66 SECTION 14.01. Trust Indenture Act Controls ................................ 66 SECTION 14.02. Notices ..................................................... 66 SECTION 14.03. Communication by Holders of Notes with Other Holders of Notes .................................................... 67 SECTION 14.04. Certificate and Opinion as to Conditions Precedent .......... 67 SECTION 14.05. Statements Required in Certificate or Opinion ............... 67 SECTION 14.06. Rules by Trustee and Agents ................................. 67 SECTION 14.07. No Personal Liability of Directors, Officers, ............... 68 Employees and Stockholders SECTION 14.08. Governing Law ............................................... 68 SECTION 14.09. No Adverse Interpretation of Other Agreements ............... 68 SECTION 14.10. Successors .................................................. 68 SECTION 14.11. Severability ................................................ 68 SECTION 14.12. Counterpart Originals ....................................... 68 SECTION 14.13. Table of Contents, Headings, etc. ........................... 68
EXHIBITS EXHIBIT A - Form of Note EXHIBIT B - Form of Notation of Guarantee EXHIBIT C - Form of Collateral Agent Agreement EXHIBIT D - Form of Security Agreement v INDENTURE, dated as of __________, 2002, by and among Arch Wireless Holdings, Inc., a Delaware corporation (the "COMPANY"), Arch Wireless Communications, Inc., a Delaware corporation ("ARCH"), Arch Wireless, Inc., a Delaware corporation (the "PARENT"), and the direct and indirect subsidiaries of the Parent listed on Schedule I hereto (such subsidiaries, the "SUBSIDIARY GUARANTORS," and together with Arch and the Parent, herein the "GUARANTORS") and The Bank of New York, a New York banking corporation, as Trustee (the "TRUSTEE"). RECITALS WHEREAS, on November 9, 2001, three creditors filed an involuntary petition against Arch under Chapter 11 of Title 11 of the United States Code (the "BANKRUPTCY CODE"); WHEREAS, on December 6, 2001, Arch consented to entry of an order for relief and the Company and the other Guarantors each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of Massachusetts (the "BANKRUPTCY COURT"); WHEREAS, the Company and the Guarantors filed Debtors' First Amended Joint Plan of Reorganization which was confirmed by the Bankruptcy Court on [ ], 2002 (as amended, the "PLAN"); WHEREAS, pursuant to the Plan, the Company is required to issue the Notes (as defined herein), to certain holders of indebtedness of the Company and certain of the Guarantors outstanding on the record date set by order of the Bankruptcy Court; WHEREAS, the Company has duly authorized the creation of an issue of its 10% Senior Subordinated Secured Notes due 2007 (the "NOTES") of substantially the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture; WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done; WHEREAS, the Guarantors have duly authorized the guarantee of the Notes, and to provide therefor, the Guarantors have duly authorized the execution and delivery of this Indenture; and WHEREAS, all things necessary to make the Guarantees, when executed by the Guarantors and when the Notes have been authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Guarantors, and to make this Indenture a valid agreement of the Guarantors, in accordance with their and its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the acquisition of the Notes by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows: ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01 DEFINITIONS. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified, (ii) any definition of or reference to any law shall be construed as referring to such law as from time to time amended and any successor thereto and the rules and regulations promulgated from time to time thereunder, (iii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iv) the words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Indenture in its entirety and not to any particular provision hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Indenture, and (vi) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. (2) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP; provided that if the Company notifies the Trustee that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date of this Indenture in GAAP or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Unless the context otherwise requires, any reference to a fiscal period shall refer to the relevant fiscal period of the Company. "ADMINISTRATIVE AGENT" means the named administrative agent, in its capacity as administrative agent under any Credit Agreement, or any successor thereto. "AFFILIATE" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. "AGENT" means any Registrar, co-registrar, Paying Agent or additional paying agent. "APPLICABLE PROCEDURES" means, with respect to any transfer, redemption or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer, redemption or exchange. "ARCH" means Arch Wireless Communications, Inc., a Delaware corporation. "AVAILABLE AMOUNT" means for any Person the aggregate unused portion of any commitment, subject to any borrowing base or other limitations, under any Credit Agreement available to be borrowed. "BANKRUPTCY CODE" has the meaning set forth in the recitals to this Indenture. 2 "BANKRUPTCY COURT" has the meaning set forth in the recitals to this Indenture. "BOARD OF DIRECTORS" means: (1) with respect to a corporation, the board of directors of the corporation; (2) with respect to a partnership, the Board of Directors of the general partner of the partnership; and (3) with respect to any other Person, the board or committee of such Person serving a similar function. "BOARD RESOLUTION" of a Person means a copy of a resolution certified by the Secretary or a duly authorized Assistant Secretary of such Person to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "BUSINESS DAY" means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are required or authorized by law or other governmental action to close, and (ii) a day of the year on which the Collateral Agent is not required or authorized to close. "CAPITAL EXPENDITURES" means, with respect to any Person for any period, the aggregate of amounts that would be reflected as additions to property, plant or equipment on a consolidated balance sheet of such Person and its subsidiaries prepared in conformity with GAAP, excluding interest capitalized during construction and deferred financing fees. "CAPITAL LEASE" means, with respect to any Person, any lease of property by such Person as lessee which would be accounted for as a capital lease on a balance sheet of such Person prepared in conformity with GAAP. "CASH AND CASH EQUIVALENTS" means, for any Person for any period, cash and cash equivalents of such Person and its subsidiaries for such period, determined on a consolidated basis in conformity with GAAP. "CHANGE IN CONTROL" means the occurrence at any time after the date hereof of any of the following circumstances: (a) any person or group of persons (within the meaning of the Exchange Act), shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Commission under the Exchange Act) of 50% or more of the issued and outstanding Voting Stock of the Parent; (b) during any period of twelve consecutive calendar months, individuals who at the beginning of such period constituted the Board of Directors of any of the Note Parties or their subsidiaries (together with any new directors whose election by the Board of Directors of the Parent or whose nomination for election by the stockholders of any of the Note Parties or their subsidiaries was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office; (c) the failure of the Parent to own directly, beneficially and of record, 100% of the aggregate ordinary voting power represented by the issued and outstanding Stock and Stock Equivalents of Arch on a fully diluted basis; or (d) the failure of Arch to own directly, beneficially and of record, 100% of the aggregate ordinary voting power represented by the issued and outstanding Stock and Stock Equivalents of the Company on a fully diluted basis. 3 "CODE" means the Internal Revenue Code of 1986 (or any successor legislation thereto), as amended from time to time. "COLLATERAL" means any and all "Collateral" as defined in the Collateral Agent Agreement and the Security Agreement. "COLLATERAL AGENT" means The Bank of New York, in its capacity as collateral agent under the Collateral Agent Agreement, or any successor thereto. "COLLATERAL AGENT AGREEMENT" means the Collateral Agent Agreement, substantially in the form of Exhibit C, among the Note Parties, the Indenture Trustees, the Administrative Agent and the Collateral Agent, for the benefit of the Secured Parties. "COMMISSION" means the Securities and Exchange Commission. "COMPANY" means the Person named as the "Company" in the first paragraph of this Indenture. "COMPANY REQUEST" or "COMPANY ORDER" means a written request or order signed in the name of the Company by its Chairman of the Board, its Chief Executive Officer, its Vice Chairman of the Board, its President, a Vice President, its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "CONSOLIDATED NET INCOME" means, for any Person for any period, the net income (or loss) of such Person and its subsidiaries for such period, determined on a consolidated basis in conformity with GAAP; provided, however, that: (a) the net income of any other Person in which such Person or one of its subsidiaries has a joint interest with a third party (which interest does not cause the net income of such other Person to be consolidated into the net income of such Person in accordance with GAAP) shall be included only to the extent of the amount of dividends or distributions paid to such Person or subsidiary; (b) the net income of any subsidiary of such Person that is subject to any restriction or limitation on the payment of dividends or the making of other distributions shall be excluded to the extent of such restriction or limitation; (c) any net gain (or loss) resulting from an Asset Sale by such Person or any of its subsidiaries other than in the ordinary course of business shall be excluded; and (d) extraordinary gains and losses and any one-time increase or decrease to net income which is required to be recorded because of the adoption of new accounting policies, practices or standards required by GAAP shall be excluded. "CONTRACTUAL OBLIGATION" of any Person means any obligation, agreement, undertaking or similar provision of any security issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding this Indenture) to which such Person is a party or by which it or any of its property is bound or to which any of its properties is subject. "CONTROL" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms "Controlling" and "Controlled" have meanings correlative thereto. "CORPORATE TRUST OFFICE" mean the principal office of the Trustee in the City of New York, at which at any particular time its corporate trust business shall be administered, which at the date hereof is 101 Barclay Street, Floor 21 West, New York, New York, 10286. "CREDIT AGREEMENT" means one or more debt facilities or agreements existing on the date hereof, in each case with banks or other institutional lenders providing for revolving credit loans and the issuance of letters of credit in an amount not to exceed $35,000,000 to be used on a revolving credit basis for working capital purposes, in each case, as amended, restated, modified, renewed, refunded, replaced, 4 restructured, restated or refinanced (including any agreement to extend the maturity thereof and adding additional borrowers or guarantors) in whole or in part from time to time under the same or any other agent, lender or group of lenders. "CURRENT MATURITIES OF LONG TERM DEBT" means, for any Person for any period, current maturities of long term debt of such Person and its subsidiaries for such period, determined on a consolidated basis in conformity with GAAP. "CUSTOMARY PERMITTED LIENS" means, with respect to any Person, any of the following Liens: (a) Liens with respect to the payment of taxes, assessments or governmental charges in all cases which are not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP; (b) Liens of landlords arising by statute and Liens of suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other Liens imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP; (c) deposits made in the ordinary course of business in connection with worker's compensation, unemployment insurance or other types of social security benefits or to secure the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money) and surety, appeal, customs or performance bonds; (d) encumbrances arising by reason of zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar encumbrances on the use of real property that do not materially detract from the value of such real property or interfere with the ordinary conduct of the business conducted and proposed to be conducted at such real property; (e) encumbrances arising under leases or subleases of real property that do not in the aggregate materially detract from the value of such real property or interfere with the ordinary conduct of the business conducted and proposed to be conducted at such real property; (f) financing statements of a lessor's rights in and to personal property leased to such Person in the ordinary course of such Person's business; and (g) Liens to secure Indebtedness permitted by clauses (h) and (i) of Section 10.07 covering only the assets acquired with such Indebtedness. "DEFAULT" means any event or condition which constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default. "DEFINITIVE NOTE" means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.07 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the "Schedule of Exchanges of Interests in the Global Note" attached thereto. "DEPOSITARY" means, with respect to the Notes issuable or issued in whole or in part in global form, any Person authorized by the Company to serve as the Depositary with respect to the Notes, 5 until a successor shall have been appointed and become such pursuant to the applicable provision of this Indenture, and, thereafter, "Depositary" shall mean or include such successor. "DETERMINATION DATE" means the date of determination of Excess Cash Flow, which shall be 10 days prior to each Interest Payment Date. "DIRECT UNITS IN SERVICE" means, at any date, messaging devices for which messaging services are provided by the Parent and the Subsidiaries as of such date directly to customers. "DOLLARS" or "$" refers to lawful money of the United States of America. "DOMESTIC SUBSIDIARY" means, as to the Parent, a Subsidiary organized under the laws of the United States of America, any state thereof or the District of Columbia. "EBITDA" means, with respect to any Person for any period, an amount equal to: (a) Consolidated Net Income of such Person for such period; plus (b) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income but without duplication, (i) any provision for income taxes, (ii) Interest Expense, (iii) loss from extraordinary items, (iv) depreciation, depletion and amortization of intangibles or financing or acquisition costs, (v) all other non-cash charges and non-cash losses for such period, including the amount of any compensation deduction as the result of any grant of Stock or Stock Equivalents to employees, officers, directors or consultants, other than charges representing accruals of future cash expenses, (vi) severance payments to employees, whether or not previously reserved for and (vii) all cash restructuring charges; minus (c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income but without duplication, (i) any credit for income tax, (ii) interest income, (iii) gains from extraordinary items for such period, (iv) any aggregate net gain (but not any aggregate net loss) from the sale, exchange or other disposition of capital assets by such Person, and (v) any other non-cash gains or other items which have been added in determining Consolidated Net Income, including any reversal of a change referred to in clause (b)(v) above by reason of a decrease in the value of any Stock or Stock Equivalent. "EXCESS CASH FLOW" means from the date hereof and until September 30, 2004, for each six month period starting on each of April 1 and October 1 (other than the initial period which shall be from the date hereof through September 30, 2002) (each, a "MEASUREMENT PERIOD"), the amount by which (a) Cash and Cash Equivalents as of the end of the Measurement Period just ended less (i) the amount of cash required to make the interest payment on the Notes on the next succeeding Interest Payment Date, (ii) the amount of cash required to make the next mandatory redemption pursuant to Section 9.02(a), and (iii) the amount of cash required to make any mandatory redemptions pursuant to Section 9.02(b) to the extent such amounts are included in Cash and Cash Equivalents, (b) plus the Available Amount on the Determination Date, and (c) plus 75% of any negative number, or minus 50% of any positive number, resulting from subtracting Working Capital at the end of the Measurement Period just ended from Working Capital at the end of the Measurement Period preceding the Measurement Period just ended (the "AVAILABLE CASH") exceeds $45,000,000. From and after October 1, 2004, "EXCESS CASH FLOW" will mean, for any such Measurement Period, the amount by which Available Cash exceeds $35,000,000. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended. "FISCAL QUARTER" means each of the three-month periods ending on March 31, June 30, September 30 and December 31. "FISCAL YEAR" means the twelve-month period ending on December 31. "FOREIGN SUBSIDIARY" means, as to the Parent, any Subsidiary other than a Domestic Subsidiary. 6 "GAAP" means generally accepted accounting principles in effect in the United States of America as of the date hereof unless another date is specified herein. "GLOBAL NOTE" means a Note substantially in the form of the Note attached hereto as Exhibit A. "GOVERNMENT SECURITIES" means direct obligations of, or obligations fully and unconditionally guaranteed or insured by, the United States of America or any agency or instrumentality thereof for the payment of which obligations or guarantee the full faith and credit of the United States is pledged and which are not callable or redeemable at the issuer's option. "GOVERNMENTAL AUTHORITY" means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. "GROSS PLACEMENTS" means the sale, lease or exchange of paging and messaging devices. "GUARANTEE" means each guarantee by the Parent or any of the Subsidiaries of any Notes or Junior Notes. "GUARANTY OBLIGATION" means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the purpose or intent of such Person in incurring the Guaranty Obligation is to provide assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof, including: (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), or co-making of Indebtedness of another Person; and (b) any liability of such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another Person, (iii) to make take-or-pay or similar payments, if required, regardless of non-performance by any other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, or (v) to supply funds to or in any other manner invest in such other Person (including to pay for property or services irrespective of whether such property is received or such services are rendered), if in the case of any agreement described under subclause (i), (ii), (iii), (iv) or (v) of clause (b) of this sentence the primary purpose or intent thereof is as described in the preceding sentence. The amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so guaranteed or otherwise supported. "GUARANTORS" means, collectively, the Parent, Arch and each of the Subsidiary Guarantors. "HEDGING CONTRACTS" means all Interest Rate Contracts, foreign exchange contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or option agreements, other commodity price hedging arrangements, and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices. "HOLDER" means a Person in whose name a Note is registered in the Note Register. 7 "INDEBTEDNESS" of any Person means without duplication: (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments or which bear interest; (c) all reimbursement and all obligations with respect to letters of credit, bankers' acceptances, surety bonds and performance bonds, whether or not matured; (d) all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business; (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (f) all obligations of such Person under Capital Leases and the present value of future rental payments under all synthetic leases; (g) all Guaranty Obligations of such Person; (h) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (i) all payments that such Person would have to make in the event of an early termination on the date Indebtedness of such Person is being determined in respect of Hedging Contracts of such Person; and (j) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including Accounts (as defined in the Security Agreement) and general intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. "INDENTURE" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures entered into pursuant to applicable provisions hereof. "INDENTURE TRUSTEES" means the Senior Indenture Trustee and the Junior Indenture Trustee. "INTEREST EXPENSE" means, for any Person for any period, the total interest expense of such Person and its subsidiaries for such period determined on a consolidated basis in conformity with GAAP and including, in any event, interest capitalized for such period and net costs under Interest Rate Contracts for such period (without deducting therefrom any (i) net gains of such Person and its subsidiaries under Interest Rate Contracts for such period determined on a consolidated basis in conformity with GAAP, or (ii) interest income of such Person and its subsidiaries for such period determined on a consolidated basis in conformity with GAAP). "INTEREST PAYMENT DATE" means the Stated Maturity of an installment of interest on the Notes. "INTEREST PERIOD" means (i) the period commencing on the date hereof and ending on and including the day immediately preceding the next succeeding Interest Payment Date and (ii) the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next succeeding Interest Payment Date. "INTEREST RATE CONTRACTS" means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance. "INVESTMENT" means, with respect to any Person: (a) any purchase or other acquisition by that Person of (i) any security issued by, (ii) a beneficial interest in any security issued by, or (iii) any other equity ownership interest in, any other Person; (b) any purchase by that Person of all or a significant part of the assets of a business conducted by another Person; (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary course of business as presently conducted), or capital contribution by that Person to any other Person, including all Indebtedness of any other Person to that 8 Person arising from a sale of property by that Person other than in the ordinary course of its business; and (d) any guarantee incurred by that Person in respect of Indebtedness of any other Person. "JUNIOR INDENTURE" means the Indenture, dated as of [ ], 2002, between the Note Parties and the Junior Indenture Trustee pursuant to which the Company issued the Junior Notes. "JUNIOR INDENTURE TRUSTEE" means The Bank of New York, in its capacity as trustee under the Junior Indenture, and any successor thereto. "JUNIOR NOTES" means the 12% Subordinated Secured Compounding Notes due 2009 issued by the Company under the Junior Indenture. "LIEN" means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or other obligation, including any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the UCC or comparable law of any jurisdiction naming the owner of the asset to which such Lien relates as debtor (other than those financing statements filed solely for precautionary reasons in connection with operating leases). "LOAN DOCUMENTS" means any Credit Agreement, the promissory notes issued thereunder, any guarantees thereof and the documentation in respect of each letter of credit issued thereunder. "MAJORITY NOTEHOLDERS" means, at any time, Holders representing at least a majority of the aggregate principal amount of Outstanding Notes. "MATERIAL ADVERSE EFFECT" means a material adverse effect on any of (a) the condition (financial or otherwise), business, performance, prospects (as such prospects relate to the Note Parties' ability to repay its obligations under the Notes and the Guarantees), operations or properties of any of the Parent and the Subsidiaries, taken as a whole, (b) the legality, validity or enforceability of any Secured Debt Document; (c) the perfection or priority of the Liens granted pursuant to the Security Documents; (d) the ability of the Parent or any of the Subsidiaries to repay the Obligations or perform its respective obligations under the Secured Debt Documents; or (e) the ability of the Administrative Agent, the Indenture Trustees or the Collateral Agent to enforce the rights and remedies under the Secured Debt Documents. "MATERIAL FOREIGN SUBSIDIARY" means, as to any Person, a Foreign Subsidiary of such Person which, as of the last day of the most recently completed fiscal quarter, satisfied any one or more of the following three tests: (i) the amount of the Investments in such Foreign Subsidiary made by the Parent and the Subsidiaries on or after the date hereof exceeds $5,000,000 in the aggregate, (ii) the Parent's and the Subsidiaries' (other than such Foreign Subsidiary's) proportionate share of consolidated total assets of the Parent and the Subsidiaries (after intercompany eliminations) consisting of the property of such Foreign Subsidiary exceeds 2% of consolidated total assets of the Parent and the Subsidiaries or (iii) the Parent's and the Subsidiaries' (other than such Foreign Subsidiary's) equity in the income (not to include losses) from continuing operations before income taxes, extraordinary items and the cumulative effect of a change in accounting principles of such Foreign Subsidiary exceeds 2% of the income (not to include losses) from continuing operations before income taxes, extraordinary items and the cumulative effect of a change in accounting principles of the Parent and the Subsidiaries determined on a consolidated basis in accordance with GAAP. 9 "MATERIAL OBLIGATIONS" means Indebtedness (other than Indebtedness under this Indenture and the Notes) or other obligations of any one or more of the Parent or any of the Subsidiaries in an aggregate principal amount equal to or exceeding $4,000,000. For purposes of determining Material Obligations, the "principal amount" of the obligations of the Parent or any Subsidiary in respect of any Hedging Contract at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Parent or any Subsidiary, as applicable, would be required to pay if such Hedging Contract were terminated at such time. "MATURITY" means, with respect to any Note, the date on which any principal of such Note becomes due and payable as provided therein or in this Indenture, whether at the Stated Maturity with respect to such principal or by declaration of acceleration, call for redemption, purchase or otherwise. "MATURITY DATE" means May 15, 2007. "MEASUREMENT PERIOD" has the meaning set forth in the definition of "Excess Cash Flow." "MORTGAGE" means a mortgage, deed of trust, assignment of leases and rents or other security document granting a Lien on any Mortgaged Property (as defined in the Security Agreement) to secure the Obligations. "NET CASH PROCEEDS" means proceeds received by any Note Party after the date hereof in Cash and Cash Equivalents from any: (a) Asset Sale in excess of $2 million, net of (i) the reasonable cash costs of sale, assignment or other disposition, (ii) taxes paid or payable as a result thereof and (iii) the amount of Indebtedness secured by the property that is the subject of such Asset Sale which is required to be repaid upon such sale or (b) Property Loss Event; provided, however, that in the case of any Net Cash Proceeds arising from a Property Loss Event in an amount less than $1,000,000, (i) if the Company shall deliver a certificate of a financial officer thereof to the Collateral Agent and the Trustee within 30 days after the date thereof setting forth such Note Party's intent to use the proceeds of such Property Loss Event to repair or replace the assets that are the subject thereof with, or otherwise purchase, other assets to be used in the same line of business within 180 days of the receipt of such Net Cash Proceeds and no Default shall have occurred and be continuing at the time of such certificate or at the proposed time of the application of such proceeds or (ii) the Majority Noteholders shall have consented to such use in writing, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such 180-day period, at which time such proceeds shall be deemed Net Cash Proceeds. "NON-MATERIAL FOREIGN SUBSIDIARY" means as to any Person at any time of determination, a Foreign Subsidiary of such Person other than a Material Foreign Subsidiary. "NOTE CUSTODIAN" means any Person authorized by the Company to serve as custodian with respect to the Notes in global form, or any successor entity thereto. "NOTES" has the meaning set forth in the recitals to this Indenture. "NOTE PARTIES" means the Company and the Guarantors. "OBLIGATIONS" shall have the meaning set forth in the Security Agreement. "OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the Board, the President or a Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 10.27 shall be the principal executive, financial or accounting officer of the Company. 10 "ONE-WAY CAPITAL EXPENDITURES" means, for any Person for any period, the Capital Expenditures made by such Person for such period in respect of one-way paging and messaging services. "ONE-WAY SRM REVENUE" means, with respect to any Person for any period, the consolidated Revenue of such Person and its consolidated subsidiaries solely in respect of the provision of network service for the service, rental and maintenance of one-way paging and messaging devices for such period. "OPINION OF COUNSEL" means a written opinion of counsel, who may (unless otherwise required by the Trust Indenture Act) be counsel for the Company and who may rely as to factual matters on an Officers' Certificate, and who shall be reasonably acceptable to the Trustee. "OUTSTANDING," when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except: (a) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (b) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (c) Notes paid pursuant to Section 2.10 hereof or Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor. "PARENT" means Arch Wireless, Inc., a Delaware corporation. "PAYING AGENT" means any Person authorized by the Company to pay the principal of or interest on any Notes on behalf of the Company. "PERMIT" means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under an applicable Requirement of Law. "PERSON" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. 11 "PLANNED ONE-WAY SRM REVENUE" for any Fiscal Quarter means the projected One-Way SRM Revenue for such quarter as set forth in Section 10.23 of this Indenture. "PLANNED TWO-WAY SRM REVENUE" for any Fiscal Quarter means the projected Two-Way SRM Revenue for such quarter as set forth in Section 10.23 of this Indenture. "PROPERTY LOSS EVENT" means any loss of or damage to property of any Note Party that results in the receipt by such Person of proceeds of insurance or any taking of property of any Note Party that results in the receipt by such Person of a compensation payment in respect thereof. "REDEMPTION DATE," when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "REDEMPTION PRICE," when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "REGULAR RECORD DATE" for the interest payable on any Interest Payment Date means the May 15 or November 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. "REPRESENTATIVE" means the Trustee or other trustee, agent or representative for any Senior Debt. "REQUIREMENT OF LAW" means, with respect to any Person, the common law and all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other legal requirements or determinations of any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. "RESPONSIBLE OFFICER," when used with respect to the Trustee, means an officer of the Trustee in the Corporate Trust Office assigned and duly authorized by the Trustee to administer this Indenture and, when used with respect to any other Person, any other officer to whom a matter is referred because of his or her knowledge of and familiarity with a particular subject. "RESTRICTED PAYMENT" means: (a) any dividend or other distribution, direct or indirect, on account of any Stock or Stock Equivalents of the Parent or any of the Subsidiaries now or hereafter outstanding, except a dividend payable solely in Stock or Stock Equivalents or a dividend or distribution payable solely to the Parent, the Company and/or one or more Subsidiary Guarantors; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Stock or Stock Equivalents of the Parent or any of the Subsidiaries now or hereafter outstanding other than one payable solely to the Parent, the Company and/or one or more Subsidiary Guarantors; and (c) any payment or prepayment of principal, premium, if any, interest, fees (including fees to obtain any waiver or consent) or other charges on, or redemption, purchase, retirement, defeasance, sinking fund or similar payment with respect to, the Junior Notes or any other Indebtedness of the Parent or any of the Subsidiaries or any other Note Party which by its terms is subordinated to the Notes, other than any required redemptions, retirement, purchases or other payments, in each case to the extent permitted to be made by the terms of such Indebtedness after giving effect to any applicable subordination provisions or as permitted by Section 10.15 hereof. "REVENUE" means, with respect to any Person for any period, an amount equal to the revenue or earnings of such Person for such period determined on a consolidated basis in conformity with GAAP. 12 "SECURED DEBT DOCUMENTS" means the Security Documents, the Loan Documents, this Indenture, the Junior Indenture, the Notes and the Junior Notes. "SECURED PARTIES" means the "Secured Parties" as defined in the Security Agreement. "SECURITY AGREEMENT" means the Security Agreement, substantially in the form of Exhibit D, among the Note Parties, the Administrative Agent and the Collateral Agent, for the benefit of the Secured Parties. "SECURITY DOCUMENTS" means, collectively, all of the agreements, instruments, documents, pledges or filings executed in connection with granting, or that otherwise evidence, the Lien of the Collateral Agent in the Collateral, including, without limitation, the Collateral Agent Agreement, the Security Agreement and each Mortgage creating a Lien that secures the Notes and the guarantees thereof, the Senior Notes and the guarantees thereof, and the Credit Agreement, if any, and any other document, agreement, instrument, pledge or filing executed in connection with the granting, or that otherwise evidence, the Lien of the Collateral Agent on the Collateral. "SENIOR DEBT" means all Indebtedness of the Parent or any of the Subsidiaries outstanding under any Credit Agreement and all Hedging Contracts with respect thereto, including any principal, premium, if any, interest (including interest accruing at the rate provided for in the documents evidencing such Senior Debt after the commencement of any proceedings of the type referred to in Sections 4.01(h) or (i) hereof, whether or not an allowed claim in such proceeding), redemption proceeds, penalties, fees, indemnifications, guarantees, reimbursements, damages and other liabilities payable under the documentation governing any such Indebtedness. "SENIOR INDENTURE TRUSTEE" means the Trustee. "SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.11. "SRM REVENUE" means, with respect to any Person for any period, the consolidated Revenue of such Person and its consolidated subsidiaries solely in respect of the provision of network service for the service, rental and maintenance of paging devices for such period. "STATED MATURITY" means, when used with respect to any Note or any installment of interest thereon, the date specified in such Note as the fixed date on which the principal of such Note or such installment of interest is due and payable. "STOCK" means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, limited liability company, trust, joint venture, association, company, partnership or other entity, whether voting or non-voting. "STOCK EQUIVALENTS" means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable. "SUBSIDIARY" means, with respect to any Person (the "parent") at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, trust, joint venture, association, company, partnership or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the 13 ordinary voting power are or, in the case of a partnership, more than 50% of the general partnership interests is, as of such date, owned, controlled or held by the parent or one or more subsidiaries of the parent. "SUBSIDIARY" means any subsidiary of the Parent other than (i) any subsidiary of Paging Network Canadian Holdings, Inc. that is organized under the laws of Canada or any province thereof and that is in existence on the date hereof, (ii) for the period from the date hereof through the date which is 367 days after the later of (x) June 1, 2002 and (y) the termination of the Asset Acquisition Agreement, dated as of January 24, 2001, by and among Unrestricted Subsidiary Funding Company, the Parent, PageNet SMR Sub, Inc., and AWI Spectrum Co., LLC, AWI Spectrum Co., LLC and AWI Spectrum Co. Holdings, Inc. shall not be deemed to be Subsidiaries for purposes of this Indenture; provided that on and after such date, each of AWI Spectrum Co., LLC and AWI Spectrum Co. Holdings, Inc. shall be deemed to be Subsidiaries for purposes of this Indenture, and (iii) each Foreign Subsidiary of Paging Network International, Inc. existing on the date hereof; provided that if such Foreign Subsidiary is not dissolved or merged into the Company or a Guarantor on or before the first anniversary of the date hereof and the Trustee shall not have received a certificate of the applicable Governmental Authority (with a certified translation thereof if such certificate is not in English) evidencing the dissolution thereof or the merger thereof into the Company or a Guarantor, such Foreign Subsidiary shall thereafter be deemed to be a Subsidiary for purposes of this Indenture. "SUBSIDIARY GUARANTOR" means all of the current and future Domestic Subsidiaries of the Parent other than the Company. "TRUSTEE" means the Person named as the "Trustee" in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee. "TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "TWO-WAY CAPITAL EXPENDITURES" means, for any Person for any period, the Capital Expenditures made by such Person for such period in respect of two-way paging and messaging services. "TWO-WAY SRM REVENUE" means, with respect to any Person for any period, the consolidated Revenue of such Person and its consolidated subsidiaries solely in respect of the provision of network service for the service, rental and maintenance of two-way paging and messaging devices for such period. "UCC" means, at any time, the Uniform Commercial Code in effect in the State of New York at such time. "VICE PRESIDENT," when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a word or a number of words added before or after the title "vice president." "VOTING STOCK" means Stock of any Person having ordinary power to vote in the election of members of the Board of Directors of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the happening of any contingency). 14 "WORKING CAPITAL" means the difference between current assets (excluding Cash and Cash Equivalents) and current liabilities (excluding Current Maturities of Long Term Debt, if any) each in conformity with GAAP. SECTION 1.02 OTHER DEFINITIONS.
Defined in Term Section ---- ------- "Act" ........................................ 1.05 "Affiliate Transaction"....................... 10.14 "Asset Sale" ................................. 10.11 "Benefited Party" ............................ 12.01 "Change of Control Offer" .................... 10.15 "Change of Control Purchase Price" ........... 10.15 "CUSIP" ...................................... 2.15 "Defaulted Interest" ......................... 2.11 "Event of Default" ........................... 4.01 "Note Register" .............................. 2.04 "One-Way Device Capital Expenditures" ........ 10.24 "Paying Agent" ............................... 2.04 "Permitted Investments" ...................... 10.10 "Permitted Liens" ............................ 10.08 "Registrar" .................................. 2.04 "Surviving Entity" ........................... 7.01 "Two-Way Device Capital Expenditures" ........ 10.24
SECTION 1.03 INCORPORATION BY REFERENCE OF THE TRUST INDENTURE ACT. (a) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. (b) The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes; "indenture security holder" means a Holder of a Note; "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the Notes means the Company and any successor obligor upon the Notes. (c) All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them. SECTION 1.04 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one 15 such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer's certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 1.05 ACTS OF HOLDERS; RECORD DATES. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by the Majority Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by the Majority Noteholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "ACT" of the Majority Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 5.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The Company or the Trustee may, in the circumstances permitted by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders, and the Company agrees to notify the Trustee of any such fixing of a record date. If not set by the Company or the Trustee prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 6.01) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action. (d) The ownership of Notes shall be proved by the Note Register. (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Majority Noteholders shall bind every future Holder of the same Note and the Holder of every Note 16 issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Note. SECTION 1.06 BENEFITS OF INDENTURE. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 1.07 LEGAL HOLIDAYS. In any case where any Interest Payment Date, Redemption Date, or Stated Maturity of any Note shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date, or at the Stated Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, or Stated Maturity, as the case may be. ARTICLE II THE NOTES SECTION 2.01 TITLE AND TERMS. The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is limited to $200,500,000, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.09, 2.10, 8.06 or 9.09. The Notes shall be known and designated as the "10% Senior Subordinated Secured Notes due 2007" of the Company. The Stated Maturity of the Notes shall be May 15, 2007. Interest on the Notes will accrue at a rate per annum equal to 10%, payable in cash semi-annually in arrears on each May 15 and November 15 commencing November 15, 2002, to the persons in whose names the Notes are registered at the close of business on the preceding May 1 or November 1, as the case may be. Interest will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the date of original issuance of the Notes. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If at any time an Event of Default has occurred and is continuing, the Company shall pay interest on demand at a rate that is 2% per annum in excess of the rate then in effect; it shall pay interest on overdue installments of interest from time to time on demand at the same rate to the extent lawful. The principal of and interest on the Notes shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, New York, maintained for such purpose and at any other office or agency maintained by the Company for such purpose; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register. Payment of the principal of on the Notes will be made upon the presentation of the Notes at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, New York. The Notes shall be redeemable as provided in Article IX. The Notes shall not have the benefit of any sinking fund obligations. 17 The Notes shall be guaranteed pursuant to the terms of the Article XII hereof and shall be secured pursuant to the terms of the Security Documents. SECTION 2.02. FORM AND DATING. (a) GENERAL. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be issued in fully registered form, without coupons, in denominations of $1,000 and integral multiples thereof. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. (b) FORM OF NOTES. Notes issued in global form shall be substantially in the form of Exhibit A attached hereto (including the Global Note Legend and the "Schedule of Exchanges of Interests in Global Notes" attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without including the Global Note Legend and the "Schedule of Exchanges of Interests in Global Notes" attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein, and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Custodian, at the direction of the Trustee, in accordance with written instructions given by the Holder thereof as required by Section 2.07 hereof in such form as is reasonably satisfactory to the Trustee. (c) BOOK-ENTRY PROVISIONS. Participants and indirect participants shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as the custodian for the Depositary or under such Global Note, and the Depositary shall be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its participants or indirect participants, the Applicable Procedures or the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note. SECTION 2.03. EXECUTION AND AUTHENTICATION. (a) One officer shall sign the Notes for the Company by manual or facsimile signature. (b) If an officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid. (c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. (d) The Trustee shall, upon a receipt of a Company Order requesting that notes be authenticated by the Trustee authenticate Notes for original issue. 18 (e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company. SECTION 2.04. REGISTRAR, PAYING AGENT AND DEPOSITARY. The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange ("REGISTRAR") and an office or agency where Notes may be presented for payment ("PAYING AGENT"). The Registrar shall keep in a register of the Notes (the "NOTE REGISTER"), the names and addresses of the Holders and of their transfer and exchange. The Company, upon prior written notice to the Trustee, may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. The Company or any of its subsidiaries may act as Paying Agent or Registrar. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which shall incorporate the provisions of the Trust Indenture Act. Such agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of such Agent. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Notes. The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Note Custodian with respect to the Global Notes. SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest, if any, on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes. SECTION 2.06. HOLDER LISTS. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date or such shorter time as the Trustee may allow, as the Trustee may reasonably require of the names and addresses of the Holders and the Company shall otherwise comply with TIA Section 312(a). SECTION 2.07. TRANSFER AND EXCHANGE. 19 (a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes are presented by a Holder to the Registrar with a request (1) to register the transfer of the Definitive Notes or (2) to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met; provided that any Definitive Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by the Holder thereof or by his attorney duly authorized in writing. (b) TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN THE GLOBAL NOTE. A Definitive Note may be exchanged for a beneficial interest in the Global Note only upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with written instructions directing the Trustee to make an endorsement on the Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note. (c) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A DEFINITIVE NOTE. A beneficial interest in the Global Note may be exchanged for a Definitive Note only under the circumstances described in Section 2.07(g) and upon receipt by the Trustee of written transfer instructions (or such other form of instructions as is customary for the Depositary) from the Depositary (or its nominee) on behalf of any Person having a beneficial interest in a Global Note that such Note is being transferred, in which case the Trustee shall, in accordance with the standing instructions and procedures existing between the Depositary and the Trustee, cause the aggregate principal amount of the Global Note to be reduced accordingly and, following such reduction, the Company shall execute and the Trustee shall authenticate and make available for delivery to the transferee a Definitive Note in the appropriate principal amount. (d) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTE. The transfer and exchange of beneficial interests in the Global Note shall be effected through the Depositary in accordance with this Indenture and the procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act of 1933, as amended. When a Global Note is presented to the Registrar with a request (1) to register the transfer of the Global Note or (2) to exchange such Global Notes for an equal principal amount of Notes of other denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met; provided, however, that any Note presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar and the Trustee duly executed by the Holder thereof or by his attorney duly authorized in writing. To permit registrations of transfer and exchanges, the Company shall issue and the Trustee shall authenticate Notes at the Registrar's request, subject to such rules as the Trustee may reasonably require. (e) CANCELLATION AND/OR ADJUSTMENT OF THE GLOBAL NOTE. At such time as all beneficial interests in the Global Note have either been exchanged for Definitive Notes, redeemed, repurchased or canceled, the Global Note shall be returned to or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in the Global Note is exchanged for Definitive Notes, redeemed, repurchased or canceled, the aggregate principal amount of Notes represented by such Global Note shall be reduced accordingly, and an endorsement shall be made on such Global Note by the Trustee to reflect such reduction. (f) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. To permit registrations of transfers and exchanges effected in accordance with this Indenture, the Company shall execute and the Trustee shall authenticate the Global Note and any Definitive Notes at the Registrar's request. The Global Note and any Definitive Notes issued upon any registration of transfer or exchange of beneficial interests in the Global Note or the Definitive Notes shall be legal, valid and binding obligations of the Company, 20 evidencing the same debt, and entitled to the same benefits under this Indenture, as the Definitive Notes or Global Notes surrendered upon such registration of transfer or exchange. Neither the Company nor the Registrar shall be required to (a) issue, register the transfer of or exchange Notes during a period beginning at the opening of business on a Business Day 15 days before the day of mailing of any notice of redemption of Notes under Section 9.06 hereof and ending at the close of business on the day of such mailing or (b) register the transfer of or exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. No service fee shall be charged to any Holder of a Note for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.09, 2.10, 8.06 or 9.09 hereof, which shall be paid by the Company). Prior to due presentment to the Trustee for registration of the transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary. The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.03 hereof. All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.07 to effect a registration of transfer or exchange may be submitted by facsimile. The Trustee is hereby authorized to enter into a letter of representation with the Depositary in the form provided by the Company and to act in accordance with such letter. (g) GENERAL PROVISIONS RELATING TO GLOBAL NOTES. Notwithstanding any other provision in this Indenture, no Global Note may be transferred to, or registered or exchanged for Notes registered in the name of, any Person other than the Depositary for such Global Note or any nominee thereof, and no such transfer may be registered, unless (i) such Depositary (A) notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note or (B) ceases to be a clearing agency registered under the Exchange Act, (ii) the Company delivers to the Trustee an Officers' Certificate stating that such Global Note shall be so transferable, registrable, and exchangeable, and such transfers shall be registrable, or (iii) upon the request of a Holder if there shall have occurred and be continuing an Event of Default with respect to the Notes evidenced by such Global Note. Notwithstanding any other provision in this Indenture, a Global Note to which the restriction set forth in the preceding sentence shall have ceased to apply may be transferred only to, and may be registered and exchanged for Notes registered only in the name or names of, such Person or Persons as the Depositary for such Global Note shall have directed, and no transfer thereof other than such a transfer may be registered. Every Note authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Note to which the restriction set forth in the first sentence of this paragraph shall apply, whether pursuant to this Section 2.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note. SECTION 2.08. LEGENDS. The following legend shall appear on the face of all Global Notes issued under this Indenture: 21 "THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.13 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN." SECTION 2.09. TEMPORARY NOTES. Pending the preparation of Definitive Notes, the Company may execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, temporary Definitive Notes which shall be substantially in the form of Definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Notes may determine, as evidenced by their execution of such Notes. If temporary Notes are issued, the Company will cause Definitive Notes to be prepared without unreasonable delay. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency of the Company designated pursuant to Section 10.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Notes of authorized denominations. Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes. SECTION 2.10. MUTILATED, DESTROYED, LOST AND STOLEN NOTES. If any mutilated Note is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Note of like tenor and principal amount and bearing a certificate number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Note and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Note has been acquired by a bona fide purchaser, the 22 Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note. Upon the issuance of any new Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes. SECTION 2.11. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. On or before any Interest Payment Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the interest on all the Notes that is to be paid on such Interest Payment Date. Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note is registered at the close of business on the Regular Record Date for such interest. Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest shall be paid by the Company to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment (which date shall be a date which will enable the Trustee to comply with the provisions of the immediately following sentence), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided herein. The Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears in the Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on such Special Record Date. Subject to the foregoing provisions of this Section, each Note delivered under this Indenture upon registration of transfer 23 of, or in exchange for or in lieu of, any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note. SECTION 2.12. PERSONS DEEMED OWNERS. Prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of and (subject to Section 2.11) interest on such Note and for all other purposes whatever, whether or not such Note be overdue, and neither the Company nor the Trustee shall be affected by notice to the contrary. SECTION 2.13. CANCELLATION. All Notes surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly canceled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures. SECTION 2.14. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures ("CUSIP"), the Company may cause CUSIP numbers to be printed on the Notes and may direct the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders of Notes. No representation is made as to the accuracy of the CUSIP numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Company will promptly notify the Trustee of any change in the CUSIP numbers. ARTICLE III SATISFACTION AND DISCHARGE SECTION 3.01. SATISFACTION AND DISCHARGE OF INDENTURE. Upon the written request of the Company, this Indenture will cease to be of further effect, and the Trustee, at the expense of the Company, will execute proper instruments acknowledging satisfaction and discharge of this Indenture, when: (1) either (a) all the Notes theretofore authenticated and delivered (other than Notes which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.10) have been delivered to the Trustee for cancellation; or (b) all Notes not theretofore delivered to the Trustee for cancellation have come due and payable, by reason of the making of a notice of redemption or will otherwise become due and payable within one year and the Company has irrevocably deposited or caused to be deposited with the Trustee funds in trust for the purpose in an amount sufficient to pay and discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such 24 deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit, and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company is a party or by which the Company is bound; (3) the Company has paid or caused to be paid all other sums payable hereunder by the Company; (4) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money and/or non-callable Government Securities toward the payment of the Notes at maturity or the redemption date, as the case may be; and (5) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 5.07 and, the obligations of the Trustee under Section 3.02 and the last paragraph of Section 10.03 shall survive. SECTION 3.02. APPLICATION OF TRUST MONEY. Subject to the provisions of the last paragraph of Section 10.03, all money and Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 3.01 hereof in respect of the Outstanding Notes shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and interest for whose payment such money has been deposited with the Trustee. ARTICLE IV REMEDIES SECTION 4.01. EVENTS OF DEFAULT. "EVENT OF DEFAULT," wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any Governmental Authority): (a) default in the payment of any interest on any Note when it becomes due and payable and such default continues for a period of 5 days; (b) default in the payment of the principal of any Note at its Maturity (including pursuant to Sections 9.01 and 9.02 hereof); (c) the Parent or any of the Subsidiaries shall fail for 60 days after written notice to the Company by the Trustee (at the direction of the holders of at least 25% in aggregate principal amount of the Notes then outstanding) or the holders of at least 25% in aggregate principal amount of the Notes then 25 outstanding to observe or perform any covenant, condition or agreement contained in Sections 10.07, 10.08, 10.09, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.19, 10.20, 10.21, 10.22, 10.23, 10.24 or 10.25 hereof; (d) the Parent or any of the Subsidiaries shall fail to observe or perform any other covenant, condition or agreement contained in the Indenture (other than those specified in clause (a), (b) or (c) of this Section 4.01), and such failure shall continue unremedied for 60 days after written notice thereof shall have been given to the Company by the Trustee (at the direction of the Majority Noteholders) or the Majority Noteholders; (e) (i) any Note Party shall fail to observe or perform any covenant, condition or agreement contained in the Security Documents to the extent it is a party thereto; (ii) any Note Party shall breach in any material respect any representation or warranty or agreement in any of the Security Documents or in any certificates delivered in connection therewith; (iii) the repudiation by any of them of any of their obligations under any of the Security Documents; (iv) the unenforceability of the Security Documents against any of them in any material respect for any reason which, in each case, shall continue unremedied for 30 days after the earlier of the date on which (A) a Responsible Officer of the Parent becomes aware of such failure or (B) written notice thereof shall have been given to the Parent by the Trustee or the Majority Noteholders; or (v) the loss of the perfection or priority of any material portion of the Liens granted by any of them pursuant to the Security Documents for any reason; (f) the Parent or any of the Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Obligations, when and as the same shall become due and payable (after giving effect to any applicable grace period); (g) any event or condition occurs that results in any Material Obligation becoming due prior to its scheduled maturity or payment date, or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Obligation or any trustee or agent on its or their behalf to cause any Material Obligation to become due prior to its scheduled maturity or payment date or requires the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or payment date (in each case after giving effect to any applicable cure period); provided that this clause (g) shall not apply to secured Indebtedness that becomes due solely as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Parent or any of the Subsidiaries, or any of their debts, or of a substantial part of any of their assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Parent or any of the Subsidiaries or for a substantial part of any of their assets, and, in any such case, such proceeding or petition shall continue undismissed for 30 days or an order or decree approving or ordering any of the foregoing shall be entered; (i) the Parent or any of the Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Section 4.01, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Parent or any of the Subsidiaries or for a substantial part of any of their assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; 26 (j) one or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 shall be rendered against the Parent or any of the Subsidiaries or any combination thereof (which shall not be fully covered by insurance without taking into account any applicable deductibles) and the same shall remain undischarged or unbonded for a period of 30 consecutive days during which execution shall not be effectively stayed; (k) an Event of Default under and as defined in the Junior Indenture or any Credit Agreement shall have occurred; or (l) any Guarantor disavows any of its obligations under its Guarantee of the Notes. SECTION 4.02. ACCELERATION OF MATURITY; EXERCISE OF REMEDIES. If an Event of Default (other than an Event of Default described in clause (h) or (i) of Section 4.01), shall have occurred and be continuing, the Trustee or the Majority Noteholders may, by notice to the Company, declare the Notes then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Notes so declared to be due and payable, together with accrued interest thereon, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company. In case of any Event of Default described in clause (h) or (i) of Section 4.01, the principal of the Notes then outstanding, together with accrued interest thereon, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company; provided, however, that so long as any Senior Debt is outstanding, the acceleration shall not be effective until the earlier of (i) an acceleration of any Senior Debt or (ii) five Business Days after receipt by the Company of written notice of the acceleration of the Notes. The Holders of the Notes shall not have the independent right to direct the time, method or place of conducting any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee or, on behalf of all Holders of Notes, to consent to the waiver of any past Default or Event of Default or its consequences. All decisions regarding the declaration of an Event of Default, the acceleration of the Notes, the waiver of any Defaults and Events of Default, and the direction of the Collateral Agent and the Trustee with respect to the exercise of rights and remedies against the Company, the Guarantors and the Collateral shall be made by the Majority Noteholders. These limitations do not apply to a suit instituted by a Holder of a Note for enforcement of payment of any amounts then due as an unsecured claimant. SECTION 4.03. WAIVER OF PAST DEFAULTS. The Majority Noteholders by notice to the Trustee may, on behalf of the Holders of all the Notes, waive an existing Default or Event of Default and its consequences hereunder, except: (1) an uncured default in the payment of principal or interest on any Note, or (2) a default in respect of a covenant or provision hereof which under Article VIII cannot be modified or amended without the consent of the Holder of each Outstanding Note affected thereby; provided, however, that after any acceleration, but before a judgment or decree based on acceleration is obtained by the Trustee, the Majority Noteholders may rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal, premium or interest, have been cured or waived as provided in this Indenture. Upon any such waiver, such Default shall cease to exist, and any 27 Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. SECTION 4.04. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE. Subject at all times to the provisions of Section 4.02, the Company covenants that if an Event of Default specified in clauses (a) or (b) of Section 4.01 occurs and is continuing, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on any overdue interest at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. Subject at all times to the provisions of Section 4.02, if an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 4.05. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to participate as a member, voting or otherwise, of any official committee of creditors appointed in such matter and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 5.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 5.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 4.06. APPLICATION OF MONEY COLLECTED. Subject to the provisions of the Security Documents, any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money, on account of principal or interest upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 5.07; 28 SECOND: To the payment of the amounts then due and unpaid for principal of and interest on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal and interest respectively; and THIRD: To the payment of the remainder, if any, to the Company, its successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. SECTION 4.07. LIMITATION ON SUITS. Subject to Section 4.08, no Holder of any Note shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or to foreclose or take any other action with respect to the Collateral or under any Security Document or for any other remedy hereunder, under any Security Document unless: (a) such Holder has previously given to the Trustee written notice of a continuing Event of Default, and (b) the Majority Noteholders have made a written request and offered to the Trustee indemnity satisfactory to it to institute such proceeding as trustee. The preceding limitations do not apply to a suit instituted by a Holder for enforcement of payment of the principal of, and premium, if any, or interest on, a Note on or after the respective due dates expressed in such Note. A Holder may not use this Indenture to affect, disturb or prejudice the rights of another Holder or to obtain a preference or priority over another Holder. SECTION 4.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and (subject to Section 2.11) interest on such Note on the respective Stated Maturities expressed in such Note (in the case of redemption, on the Redemption Date) and to institute suit as an unsecured claimant for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. SECTION 4.09. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 4.10. RIGHTS AND REMEDIES CUMULATIVE. Subject to the provisions of Section 4.02 and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 2.10, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at 29 law or in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 4.11. DELAY OR OMISSION NOT WAIVER. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Subject to the provisions of Section 4.02, every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 4.12. CONTROL BY MAJORITY NOTEHOLDERS. The Majority Noteholders shall have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on the Trustee; provided that (1) such direction shall not be in conflict with the Trust Indenture Act or any rule of law or with this Indenture, and (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction or the Trust Indenture Act. SECTION 4.13. UNDERTAKING FOR COSTS. In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit (including reasonable attorney's fees and expenses), and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee or the Company. SECTION 4.14. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE V THE TRUSTEE SECTION 5.01. CERTAIN DUTIES AND RESPONSIBILITIES. The Trustee need perform only those duties that are specifically set forth in this Indenture and no others. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties 30 hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. SECTION 5.02. NOTICE OF DEFAULTS. If a Default or an Event of Default occurs and is continuing and is known to the Trustee, the Trustee shall mail to each Holder of the Notes notice of the Default or Event of Default within 90 days after the occurrence thereof, or, if earlier, within 30 days of the Trustee obtaining knowledge thereof. Except in the case of a Default or an Event of Default in payment of principal of or interest on any Notes, the Trustee may withhold the notice to the Holders of such Notes if its Board of Directors, executive committee or a committee of its trust officers in good faith determines that withholding the notice is in the interest of the Holders of the Notes. SECTION 5.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of Section 5.01: (1) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request from the Company and rely upon an Officers' Certificate and/or an Opinion of Counsel; (4) the Trustee may consult with counsel of its selection, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Majority Noteholders pursuant to this Indenture, unless the Majority Noteholders or the Holders shall have offered to the Trustee security or joint and several indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; 31 (7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (8) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith in accordance with a direction received by it pursuant to Section 4.12 and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (9) except with respect to Section 10.01, as long as the Trustee is the Paying Agent, it shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article X. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or Event of Default occurring pursuant to Sections 4.01(a) or 4.01(b) or (ii) any Default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge; (10) the rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and (11) the Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superceded. SECTION 5.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The recitals contained herein and in the Notes, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds thereof. SECTION 5.05. MAY HOLD NOTES. The Trustee, any Paying Agent, any Note Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to Sections 5.08 and 5.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Note Registrar or such other agent. SECTION 5.06. MONEY HELD IN TRUST. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company. SECTION 5.07. COMPENSATION AND REIMBURSEMENT. The Company agrees: 32 (1) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel (including local legal counsel) and if an Event of Default occurs and is continuing, auditors, accountants, appraisers, printers, insurance and environmental advisors, financial advisors and other consultants and agents), except any such expense, disbursement or advance as may be attributable to its gross negligence or willful misconduct; and (3) to indemnify each of the Trustee, its employees, officers, directors and agents or any predecessor Trustee for, and to hold it harmless against, any and all loss, liability, damage, claim or expense incurred without gross negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim (whether asserted by the Company, a Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder. All such payments and reimbursements shall be made with interest at the rate borne by the Notes. As security for the performance of the obligations of the Company under this Section the Trustee shall have a Lien prior to the Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Notes. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01(h) or Section 4.01(i), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for the Trustee's services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law. The Company's obligations under this Section 5.07 and any Lien arising hereunder shall survive the resignation or removal of any Trustee, the discharge of the Company's obligations pursuant to this Indenture and/or the termination of this Indenture. SECTION 5.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. 33 SECTION 5.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of (a) at least $25,000,000 and be a member of a bank holding company that has a combined capital and surplus of at least $100,000,000 or (b) at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. SECTION 5.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 5.11. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation or removal, the Trustee resigning or being removed may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee. (b) The Trustee may resign at any time by giving written notice thereof to the Company. (c) The Majority Noteholders may remove the Trustee by so notifying the Trustee and the Company in writing. (d) If at any time: (1) the Trustee shall fail to comply with Section 5.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, (2) the Trustee shall cease to be eligible under Section 5.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee, or (ii) subject to Section 4.13, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, the Majority Noteholders appoint a successor Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of 34 himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 14.02. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. SECTION 5.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject to its Lien provided for in Section 5.07. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. SECTION 5.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. SECTION 5.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). SECTION 5.14. APPOINTMENT OF CO-TRUSTEE. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction, including particularly the law of the State of New York, denying or restricting the right of banking corporations or associations to transact business as Trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture, and in particular in case of the enforcement on Default, or in case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an additional individual or institution as a separate or co-trustee. The following provisions of this Section 5.14 are adopted to these ends. 35 In the event that the Trustee appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and Lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vested in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by such separate or co-trustee. No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder. Should any instrument in writing be required by the separate trustee or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Company. In case any separate trustee or co-trustee, or a successor to either, shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate trustee or co-trustee. ARTICLE VI HOLDERS' LISTS AND REPORTS BY TRUSTEE SECTION 6.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS. The Company will furnish or cause to be furnished to the Trustee: (a) semi-annually, not more than 5 Business Days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date, and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Registrar. SECTION 6.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 6.01 and the names and addresses of Holders received by the Trustee in its capacity as Registrar. The Trustee may destroy any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished. (b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Holder of Notes, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of 36 them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. SECTION 6.03. REPORTS BY TRUSTEE. (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each February 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such February 15, which complies with the provision of such Section 313(a). (b) A copy of each such report shall, at the time of such transmission to Holders, be mailed to the Company and each stock exchange upon which the Notes are listed in accordance with Section 313(d) of the Trust Indenture Act. The Company will promptly notify the Trustee when the Notes are listed on or delisted from any securities exchange. ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 7.01. CONSOLIDATION, ETC., ONLY ON CERTAIN TERMS. The Company will not consolidate with or merge with or into any other Person or convey, transfer or lease its properties and assets as an entirety to any Person or Persons (other than to a Subsidiary Guarantor as permitted by Article X hereof), and the Company will not permit any of its subsidiaries to enter into any such transaction or series of transactions, if such transaction or series of transactions, in the aggregate, would result in the conveyance, transfer or lease of all or substantially all of the properties and assets of the Company and its subsidiaries on a consolidated basis to any Person, unless: (a) such transaction is permitted by Article X hereof or consented to by the Majority Noteholders; and (b) either (i) the Company is the surviving corporation or (ii) the Person (if other than the Company) formed by such consolidation or into which the Company or such Subsidiary is merged or the Person which acquires, by conveyance, transfer or lease, the properties and assets of the Company or such Subsidiary, as the case may be, substantially as an entirety (the "SURVIVING ENTITY") (A) shall be a corporation, partnership, limited liability company or trust organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and (B) shall expressly assume, by a supplemental indenture executed and delivered to the Trustee, in form satisfactory to the Trustee, the Company's obligation for the due and punctual payment of the principal and interest on all the Notes and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed. In connection with any such consolidation, merger, conveyance, transfer or lease, the Company or the Surviving Entity shall have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease, and if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the requirements of this Section 7.01, and that all conditions precedent herein provided for relating to such transaction have been complied with. 37 SECTION 7.02. SUCCESSOR SUBSTITUTED. Upon any transaction or series of transactions that are of the type described in, and are effected in accordance with, conditions described in Section 7.01, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Surviving Entity had been named as the Company herein; and when a Surviving Entity duly assumes all of the obligations and covenants of the Company pursuant to this Indenture and the Notes, except in the case of a lease, the predecessor Person shall be relieved of all such obligations. ARTICLE VIII SUPPLEMENTAL INDENTURES SECTION 8.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (a) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Notes; (b) to add to the covenants of the Company for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company; (c) to grant additional security for the Notes; (d) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided that such action pursuant to this clause (d) shall not adversely affect the interests of the Holders in any material respect; (e) to name any Agent, Depositary or Registrar in accordance with the terms hereof; (f) to change the Trustee in accordance with the terms hereof; or (g) to make any change to comply with any requirement of the Commission in order to effect or maintain the qualification of this Indenture under the TIA. Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 8.03 hereof, the Trustee shall join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise. SECTION 8.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS AND MAJORITY NOTEHOLDERS. With the consent of the Majority Noteholders, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose 38 of adding any provisions to or changing in any manner or eliminating or waiving (subject to Section 4.03) any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture; provided, however, that without the consent of the Holder of each Outstanding Note affected thereby, no such supplemental indenture shall: (a) change the Stated Maturity of the principal of, or any installment of interest on, any Note, or reduce the principal amount thereof or the rate of interest (including default interest) thereon or change the place of payment where, or the currency in which, any Note or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or (b) (i) change any provision of this Indenture in a manner that would alter the pro rata sharing of payments among the Holders of the Notes, (ii) change any of the provisions of this Section or the definition of the term "Majority Noteholders" or any other provision hereof specifying the number or percentage of Holders required to waive, amend or modify any rights hereunder or make any determination or grant any consent under this Indenture, (iii) release any Guarantor from its Guarantee (except as expressly provided in Article XII hereof or the Security Documents), or limit its liability in respect of such Guarantee, or (iv) release all or substantially all of the Collateral from the Liens of the Security Documents (except as expressly provided in the Security Documents or in connection with a transaction permitted by Section 10.09 and 10.11 hereof). Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 8.03 hereof, the Trustee shall join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect. It shall not be necessary for any consent by the Majority Noteholders or the Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. After an amendment, supplement or waiver under this Section becomes effective, the Company shall mail to the Holders at such Holder's address appearing in the Note Register a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver. Subject to Sections 4.03 and 4.08 hereof, the Majority Noteholders may waive compliance in a particular instance by the Company with any provision of this Indenture or the Notes. SECTION 8.03. EXECUTION OF SUPPLEMENTAL INDENTURES. 39 In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 5.01) shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 8.05. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act. SECTION 8.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes. ARTICLE IX REDEMPTION OF NOTES SECTION 9.01. OPTIONAL REDEMPTION. The Notes will be redeemable at the election of the Company, as a whole or from time to time in part, at any time on not less than 15 days' prior notice, without premium or penalty, together with accrued and unpaid interest, to the Redemption Date (subject to the right of holders of record on relevant record dates to receive interest due on an Interest Payment Date). SECTION 9.02. MANDATORY REDEMPTION; MANDATORY PREPAYMENT; USE OF EXCESS CASH FLOW. (a) The Company shall redeem $15,000,000 of the Notes, assuming such amount remains outstanding, on each Interest Payment Date. (b) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of the Company, on the next succeeding Interest Payment Date, the Company shall redeem Notes in an amount equal to the aggregate amount of such Net Cash Proceeds plus any interest accrued and paid thereon (subject to the requirements of Section 9.05). Within five Business Days after receipt of the Net Cash Proceeds, the Company shall pay to the Collateral Agent such Net Cash Proceeds, to be held by the Collateral Agent in the Collateral Account established pursuant to Section 5.2(a) of the Collateral Agent Agreement for the benefit of the Holders of the Notes. The Company shall direct the Collateral Agent to invest the amount so deposited in an interest bearing bank deposit selected by the Company. On the next 40 succeeding Interest Payment Date, the Trustee shall direct the Collateral Agent to deliver such Net Cash Proceeds, together with any interest accrued and paid thereon, to the Trustee for payment to the Holders of the Notes. (c) On the Determination Date, the Company shall calculate the Excess Cash Flow. On each Interest Payment Date, the Company shall redeem Notes in an amount equal to 100% of the Excess Cash Flow, if any (subject to the requirements of Section 9.05). (d) In connection with any mandatory redemption pursuant to this Section 9.02, on the Determination Date, the Company shall deliver to the Trustee a notice stating which portion of the funds to be delivered to the Trustee on the next Interest Payment Date will constitute ordinary interest payments, which portion will constitute redemptions made with Net Cash Proceeds pursuant to clause (b) above, and which portion will constitute redemptions made with Excess Cash Flow pursuant to clause (c) above. SECTION 9.03. APPLICABILITY OF ARTICLE. Redemption of Notes at the election of the Company or otherwise, as permitted or required by any provision of this Indenture, shall be made in accordance with such provision and this Article. SECTION 9.04. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the Company to redeem any Notes pursuant to Section 9.01 shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of the Outstanding Notes, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Notes to be redeemed. SECTION 9.05. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. If less than all of the Notes are to be redeemed at any time, selection of Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed, or, if the Notes are not so listed, on a pro rata basis or in accordance with the Applicable Procedures; provided that no Notes of $1,000 principal amount or less shall be redeemed in part. If the Net Cash Proceeds plus any interest accrued and paid thereon delivered to the Trustee by the Collateral Agent pursuant to Section 9.02(b) are not equal to an integral multiple of $1,000, the Trustee shall pay to the Company on the Interest Payment Date the amount by which such Net Cash Proceeds plus any interest accrued and paid thereon exceed an integral multiple of $1,000. If the Excess Cash Flow calculated pursuant to Section 9.02(c) is not equal to an integral multiple of $1,000, the Company shall deposit with the Trustee or Paying Agent on the Redemption Date only such amount as shall be equal to an integral multiple of $1,000. The Trustee shall promptly notify the Company and each Note Registrar in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed. SECTION 9.06. NOTICE OF REDEMPTION. 41 Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 15 days prior to the Redemption Date, to each Holder of Notes to be redeemed, at such Holder's address appearing in the Note Register. All notices of redemption shall identify the Notes to be redeemed (including CUSIP numbers) and shall state: (1) the Redemption Date, (2) the Redemption Price, which shall, in each case, be the principal amount of the Notes to be redeemed, (3) if less than all the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption of any Notes, the principal amounts) of the particular Notes to be redeemed, (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Note to be redeemed and that, unless the Company defaults on the payment of the Redemption Price, interest thereon will cease to accrue on and after said date, and (5) the place or places where such Notes are to be surrendered for payment of the Redemption Price. Notice of redemption of Notes to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company; provided that the Company has given the Trustee written notice of the Redemption Date and Redemption Price at least 15 days prior to the date that such notice of redemption must be given to the Holders. SECTION 9.07. DEPOSIT OF REDEMPTION PRICE. By 10:00 a.m., New York City time on the Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued and unpaid interest on, all the Notes which are to be redeemed on that date. SECTION 9.08. NOTES PAYABLE ON REDEMPTION DATE. Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued and unpaid interest) such Notes shall cease to bear interest. Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Company at the Redemption Price, together with accrued and unpaid interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 2.12. If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Note. 42 SECTION 9.09. NOTES REDEEMED IN PART. Any Note which is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 10.02 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge to the Holder, a new Note or Notes, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered. ARTICLE X COVENANTS SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company will duly and punctually pay the principal of and interest on the Notes in accordance with the terms of the Notes and this Indenture. SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain an office or agency where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Trustee may resign any agency capacity under this Indenture upon 30 days' written notice to the Company. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Trustee of any such designation or remission and of any change in the location of any such other office or agency. SECTION 10.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of, or interest on any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of the principal of, or interest on any of the Notes, deposit with a Paying Agent a sum sufficient to pay the principal or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. 43 The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for the payment of the principal of or interest on Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Notes) in the making of any payment of principal or interest; and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest on any Note and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company. SECTION 10.04. EXISTENCE; CONDUCT OF BUSINESS. The Parent will, and will cause each of the Subsidiaries to, preserve and maintain its corporate existence, material rights (charter and statutory) and material franchises except as permitted by Sections 10.09 and 10.11 hereof. The Parent will, and will cause each of the Subsidiaries to: (a) conduct its business in the ordinary course; and (b) use its reasonable efforts, in the ordinary course, to preserve its business and the goodwill and business of the customers, advertisers, suppliers and others having business relations with the Parent or such Subsidiary. SECTION 10.05. PAYMENT AND PERFORMANCE OF OBLIGATIONS. The Parent will, and will cause each of the Subsidiaries to, pay or perform its material obligations, including tax liabilities before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings or (b) the Parent or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP as then in effect. SECTION 10.06. ADDITIONAL DOMESTIC SUBSIDIARIES; MATERIAL FOREIGN SUBSIDIARIES. 44 If any Domestic Subsidiary or Material Foreign Subsidiary (other than the Company, a Domestic Subsidiary or a Material Foreign Subsidiary that has executed a Guarantee and is a party to the Security Documents) is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Indenture) after the date of this Indenture or a Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary, the Parent will notify the Trustee in writing thereof not later than the fifth Business Day after the date on which such Domestic Subsidiary or Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Indenture) or such Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary, as applicable, and, in addition, the Parent will: (a) (i) cause such new Domestic Subsidiary or Material Foreign Subsidiary or such Non-Material Foreign Subsidiary that has become a Material Foreign Subsidiary, as applicable, to execute and deliver a Guarantee and (ii) cause such new Domestic Subsidiary or Material Foreign Subsidiary (including a Non-Material Foreign Subsidiary that has become a Material Foreign Subsidiary) to become a party to each applicable Security Document in the manner provided therein, in each case not later than the fifth Business Day after the date on which such new Domestic Subsidiary or Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Indenture) or such Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary, as applicable and (ii) promptly take such actions to create and perfect Liens on such Subsidiary's assets as constitute Collateral to secure the Obligations; and (b) if any Stock or Stock Equivalents issued by any such Domestic Subsidiary, Material Foreign Subsidiary or Non-Material Foreign Subsidiary are owned or held by or on behalf of the Company or any Guarantor or any loans, advances or other debt is owed or owing by any Subsidiary to the Company or any Guarantor, cause such Stock and Stock Equivalents and promissory notes and other instruments evidencing such loans, advances and other debt to be pledged pursuant to, and to the extent required by, the Security Documents not later than the fifth Business Day after the date on which such Domestic Subsidiary, Material Foreign Subsidiary or Non-Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Indenture). SECTION 10.07. INDEBTEDNESS. The Parent will not, and will not permit any of the Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except: (a) Indebtedness represented by the Notes and the Junior Notes; (b) the other Obligations; (c) Indebtedness represented by any Credit Agreement; (d) Indebtedness existing on the date of this Indenture; (e) Guaranty Obligations incurred by the Company or any Guarantor in respect of Indebtedness of the Company or any Guarantor otherwise permitted by this Section 10.07; (f) Indebtedness arising from intercompany loans from the Guarantors to the Company or from the Company or any of its subsidiaries to any Guarantor; provided, however, that the Investment in the intercompany loan to such subsidiary is permitted under Section 10.10; (g) Indebtedness arising under any performance or surety bond entered into in the ordinary course of business; 45 (h) the incurrence by the Parent or any of the Subsidiaries of Indebtedness represented by Capital Leases (which leases have commercially reasonable terms) incurred in connection with a transaction permitted by Section 10.11(i) hereof in an aggregate principal amount not to exceed $10,000,000 during the term of this Indenture; or (i) the incurrence by the Parent or any of the Subsidiaries of Indebtedness represented by Capital Leases (which leases have commercially reasonable terms) or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or lease expense or cost of construction or repair, improvement or addition to property, plant or equipment used in the business of the Parent or the Subsidiaries, in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding. SECTION 10.08. LIENS. The Parent will not, and will not permit any of the Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any of their respective properties or assets, whether now owned or hereafter acquired, or assign, or permit any of the Subsidiaries to assign, any right to receive income, except for (collectively, the "PERMITTED LIENS"): (a) Liens in favor of the Collateral Agent on behalf of the Secured Parties created pursuant to the Security Documents; and (b) Customary Permitted Liens of the Parent and the Subsidiaries. SECTION 10.09. FUNDAMENTAL CHANGES. The Parent will not, and will not permit any of the Subsidiaries to: (a) merge with any Person; (b) consolidate with any Person; (c) acquire all or substantially all of the Stock or Stock Equivalents of any Person; (d) acquire all or substantially all of the assets of any Person or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Person; or (e) enter into any joint venture or partnership with any Person; provided, however, that any Subsidiary that is not a Note Party will be permitted to merge with or be liquidated into another Subsidiary (other than Arch) and any Subsidiary Guarantor may merge with or be liquidated into another Subsidiary Guarantor; and provided, further, however, that AWI Spectrum Co. LLC and AWI Spectrum Co. Holdings, Inc. will be permitted to merge with or be liquidated into any Note Party SECTION 10.10. INVESTMENTS. The Parent will not, and will not permit any of the Subsidiaries to, directly or indirectly make or maintain any Investment except (collectively, the "PERMITTED INVESTMENTS"): (a) Investments existing on the date of this Indenture; (b) a transfer by the Parent of any Equity Interests in any subsidiary of the Parent to Arch or the Company; (c) cash equivalents held in a Cash Collateral Account or a Control Account (each as defined in the Security Agreement) with respect to which the Collateral Agent for the benefit of the Secured Parties has a first priority perfected Lien; (d) Accounts, Contract Rights and Chattel Paper (each as defined in the Security Agreement), notes receivable and similar items arising or acquired in the ordinary course of business of the Parent and the Subsidiaries; 46 (e) other Investments, including loans and advances to employees and officers of the Parent and the Subsidiaries in the ordinary course of business, not to exceed an aggregate of $500,000 at any one time outstanding; or (f) Investments by (i) any Guarantor in the Company or in another Guarantor which is a subsidiary of the Company; (ii) the Company in any Guarantor which is a subsidiary of the Company; and (iii) the Company in subsidiaries that are not Guarantors; provided, however, that the aggregate outstanding amount of such Investments pursuant to this clause (d)(iii), shall not exceed $100,000 at any time. SECTION 10.11. ASSET SALES. The Parent will not, and will not permit any of the Subsidiaries to, sell, convey, transfer, lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Stock or Stock Equivalents (any such sale, conveyance, transfer, lease or other disposition being an "ASSET SALE"), except: (a) transactions permitted by Section 10.09 hereof; (b) transactions permitted by Section 10.10 hereof; (c) subject to Section 10.06 hereof, the sale, conveyance, transfer, lease or other disposition of assets to a subsidiary of the Company which is a Guarantor; (d) the sale or disposition of or other use of inventory in the ordinary course of the Parent's or the Subsidiaries' business; (e) the collection, liquidation or otherwise disposition of Accounts (as defined in the Security Agreement) in the ordinary course of the Parent's or the Subsidiaries' business; (f) the renegotiation and termination of leasehold interests in the ordinary course of the Parent's or the Subsidiaries' business; (g) the sale or disposition of obsolete or worn out fixtures and equipment in the ordinary course of the Parent's or the Subsidiaries' business; (h) the grant of easements and rights of way on Mortgaged Property (as defined in the Security Agreement) or other real property in the ordinary course of the Parent's or the Subsidiaries' business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of the business of the Parent and the Subsidiaries; (i) the sale or disposition of owned real property in an amount not to exceed $10,000,000 during the term of this Indenture; provided, however, that the Net Cash Proceeds from such Asset Sales shall be applied as required by Section 9.02 of this Indenture; and (j) Asset Sales not otherwise described in this Section 10.11 in the ordinary course of business in an amount not to exceed $3,000,000 in any Fiscal Year; provided that no individual Asset Sale made pursuant to this Section 10.11(j) shall exceed $2,000,000. SECTION 10.12. RESTRICTED PAYMENTS. 47 The Parent will not, and will not permit any of the Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment, except: (a) Restricted Payments by any Subsidiary to the Company or any Guarantor which is a subsidiary of the Company; (b) Restricted Payments by any wholly owned subsidiary of the Company to its direct or indirect parent company; (c) Payments in respect of tax sharing among the Note Parties; and (d) Restricted Payments by any Subsidiary to the Parent or Arch to enable the Parent and Arch to pay ordinary course holding company expenses. SECTION 10.13. PREPAYMENTS OF INDEBTEDNESS. The Parent will not, and will not permit any of the Subsidiaries to, prepay or obligate itself to prepay, in whole or in part, or voluntarily redeem or otherwise retire prior to the maturity thereof, any Notes or Junior Notes, except (a) Notes or Junior Notes may be prepaid, redeemed or otherwise retired as permitted or required by Article IX of this Indenture and the comparable provisions of the Junior Indenture; (b) Notes or Junior Notes may be retired in exchange for common stock of the Parent subject to the consent of each exchanging holder; and (c) Notes and Junior Notes may be redeemed upon a Change of Control as required by Section 10.15 hereof and the comparable provisions of the Junior Indenture; provided that all of the Notes tendered (and not withdrawn) into the Change of Control Offer have been purchased by the Company prior to any such redemption of Junior Notes. SECTION 10.14. TRANSACTIONS WITH AFFILIATES. The Parent will not, and will not permit any of the Subsidiaries to, except as otherwise expressly permitted herein, do any of the following (each, an "AFFILIATE TRANSACTION"): (a) make any Investment in an Affiliate of the Parent which is not a Subsidiary or a Guarantor; (b) transfer, sell, lease, assign or otherwise dispose of any asset to any Affiliate of the Parent which is not a Subsidiary or a Guarantor; (c) merge into or consolidate with or purchase or acquire assets from any Affiliate of the Parent which is not a Subsidiary or a Guarantor; (d) repay any Indebtedness to any Affiliate of the Parent which is not a Subsidiary or a Guarantor; or (e) enter into any other transaction, directly or indirectly, with or for the benefit of any Affiliate of the Parent which is not a Guarantor (including guaranties and assumptions of obligations of any such Affiliate); 48 except for (i) transactions in the ordinary course of business on a basis no less favorable to the Parent or such Guarantor as would be obtained in a comparable arm's length transaction with a Person not an Affiliate and (ii) salaries and other compensation to officers or directors of the Parent or any of the Subsidiaries in the ordinary course of business. SECTION 10.15. REPURCHASE UPON A CHANGE OF CONTROL. (a) Upon the occurrence of a Change of Control, each Holder shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000) of such Holder's Notes pursuant to the offer described below (the "CHANGE OF CONTROL OFFER") at a purchase price (the "CHANGE OF CONTROL PURCHASE PRICE") equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the purchase date (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date). Within 10 Business Days following any Change of Control, the Company shall: (i) send, by first-class mail, with a copy to the Trustee, to each Holder, at such Holder's address appearing in the Note Register maintained in respect of the Notes by the Registrar, a notice stating: (1) that a Change of Control has occurred and a Change of Control Offer is being made pursuant to Section 10.15 and that all Notes timely tendered will be accepted for payment; (2) the Change of Control Purchase Price and the purchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed; (3) the circumstances and relevant facts regarding the Change of Control (including, if applicable, information with respect to pro forma historical income, cash flow and capitalization after giving effect to the Change of Control); and (4) the procedures that Holders must follow in order to tender their Notes (or portions thereof) for payment, and the procedures that Holders must follow in order to withdraw an election to tender Notes (or portions thereof) for payment. The Company will comply, to the extent applicable, with the requirements of Section 14(e)-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the covenant described hereunder, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the covenant described hereunder by virtue of such compliance. (b) On the Change of Control Payment Date, the Company shall, to the extent lawful: (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; 49 (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company. (c) The Paying Agent shall promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount of $1,000 or an integral multiple of $1,000. SECTION 10.16. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES. The Parent shall not, and shall not permit any of the Subsidiaries to, directly or indirectly, create or permit to exist or become effective any restriction on the ability of any Subsidiary to (a) make any Restricted Payment, (b) make loans or advances to the Parent or any of the Subsidiaries or (c) transfer any of its properties or assets to the Parent or any of the Subsidiaries. The preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of: (a) the Notes and the Junior Notes; (b) this Indenture and the Junior Indenture; (c) any Credit Agreement, if any; (d) the Security Documents; and (e) applicable law. SECTION 10.17. COMPLIANCE WITH LAWS; ETC. The Parent shall, and shall cause each of the Subsidiaries to, comply with all applicable Requirements of Law, Contractual Obligations and Permits, except where the failure so to comply would not in the aggregate have a Material Adverse Effect. SECTION 10.18. MAINTENANCE OF INSURANCE. The Parent shall: (a) maintain, and cause to be maintained for each of the Subsidiaries, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Parent or the Subsidiaries operate, and, in any event, all insurance required by any Secured Debt Document; and (b) cause all such insurance to name the Collateral Agent on behalf of the Secured Parties as an additional insured or loss payee, as appropriate, and to provide that no cancellation, material addition in amount or material change in coverage shall be effective until after 30 days' written notice thereof to the Trustee. SECTION 10.19. CHANGE IN NATURE OF BUSINESS. 50 The Parent will not, and will not permit any of the Subsidiaries to, make any material change in the nature or conduct of its business as carried on at the date hereof. SECTION 10.20. ACCOUNTING CHANGES; FISCAL YEAR. The Parent will not, and will not permit any of the Subsidiaries to, change their respective: (a) accounting treatment and reporting practices or tax reporting treatment, except as required by GAAP or any Requirement of Law and disclosed to the Trustee; or (b) Fiscal Year. SECTION 10.21. MINIMUM EBITDA. The Note Parties shall have, as of the last day of each quarter set forth below, EBITDA for such quarter of not less than the following:
Quarter Ending Minimum Quarterly EBITDA (dollars in millions) June 30, 2002 45.9 September 30, 2002 43.0 December 31, 2002 40.6 March 31, 2003 39.4 June 30, 2003 37.9 September 30, 2003 36.4 December 31, 2003 35.0 March 31, 2004 33.4 June 30, 2004 33.1 September 30, 2004 33.0 December 31, 2004 33.0 March 31, 2005 32.7 June 30, 2005 33.6 September 30, 2005 33.9 December 31, 2005 34.3 March 31, 2006 33.5 June 30, 2006 34.9 September 30, 2006 36.4 December 31, 2006 37.8 March 31, 2007 37.3
SECTION 10.22. MINIMUM DIRECT UNITS IN SERVICE. The Note Parties will maintain a number of Direct Units in Service as of the last day of the quarter, not less than as set forth opposite such day: 51
Quarter Ending Minimum Direct Units in Service (units in thousands) June 30, 2002 4,215.2 September 30, 2002 4,002.7 December 31, 2002 3,819.3 March 31, 2003 3,630.1 June 30, 2003 3,558.1 September 30, 2003 3,487.6 December 31, 2003 3,418.4 March 31, 2004 3,219.3 June 30, 2004 3,129.5 September 30, 2004 3,042.3 December 31, 2004 2,957.5 March 31, 2005 2,896.9 June 30, 2005 2,837.6 September 30, 2005 2,779.5 December 31, 2005 2,722.6 March 31, 2006 2,600.3 June 30, 2006 2,566.4 September 30, 2006 2,532.8 December 31, 2006 2,499.7
SECTION 10.23. MINIMUM CONSOLIDATED SRM REVENUES. The Note Parties shall maintain, as of the last day of each quarter set forth below, consolidated SRM Revenue for such quarter of not less than the Minimum Quarterly Consolidated SRM Revenue listed below:
Quarter Ending Minimum Quarterly Planned One Way SRM Planned Two Way SRM Consolidated SRM Revenue Revenue Revenue (dollars in millions) (dollars in millions) (dollars in millions) June 30, 2002 174.8 174.9 30.8 September 30, 2002 166.6 162.2 34.0 December 31, 2002 160.7 151.7 37.3 March 31, 2003 153.7 142.5 43.8 June 30, 2003 150.1 133.8 48.2 September 30, 2003 143.7 125.6 48.5
52
Quarter Ending Maximum Quarterly Planned One Way Planned Two Way Consolidated SRM SRM Revenue SRM Revenue Revenues (dollars in millions) (dollars in millions) (dollars in millions) December 31, 2003 141.3 117.9 53.3 March 31, 2004 131.7 109.1 55.5 June 30, 2004 130.8 100.9 62.6 September 30, 2004 127.9 93.4 66.5 December 31, 2004 125.3 86.4 70.3 March 31, 2005 121.8 81.5 70.7 June 30, 2005 120.3 76.9 73.5 September 30, 2005 119.8 72.6 77.2 December 31, 2005 117.4 68.5 78.3 March 31, 2006 112.6 64.4 80.8 June 30, 2006 112.1 60.6 84.1 September 30, 2006 111.2 57.0 86.5 December 31, 2006 110.8 53.7 89.3 March 31, 2007 N/A 50.5 91.4
SECTION 10.24. NON-DEVICE CAPITAL EXPENDITURES. The Note Parties will not permit: (a) One-Way Capital Expenditures (other than One-Way Capital Expenditures made in respect of paging and messaging devices ("ONE-WAY DEVICE CAPITAL EXPENDITURES")); and (b) Two-Way Capital Expenditures (other than Two-Way Capital Expenditures made in respect of paging and messaging devices ("TWO-WAY DEVICE CAPITAL EXPENDITURES")) to be made or incurred for each of the quarters set forth below such that the cumulative amounts would not be in excess of the maximum cumulative amounts set forth below:
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way Capital Expenditures Capital Expenditures (dollars in millions) (dollars in millions) June 30, 2002 2.8 3.5 September 30, 2002 4.9 9.7 December 31, 2002 6.7 12.8 March 31, 2003 8.1 14.2 June 30, 2003 9.3 15.6 September 30, 2003 10.6 16.9 December 31, 2003 11.7 18.1 March 31, 2004 12.8 19.2
53 June 30, 2004 13.9 20.4 September 30, 2004 14.9 21.5 December 31, 2004 15.8 22.8 March 31, 2005 16.7 26.0 June 30, 2005 17.6 29.5 September 30, 2005 18.4 33.0 December 31, 2005 19.2 36.7 March 31, 2006 19.9 41.0 June 30, 2006 20.6 45.5 September 30, 2006 21.2 50.1 December 31, 2006 21.8 54.9 March 31, 2007 22.3 56.4
provided that any individual commitment for such One-Way Capital Expenditures other than One-Way Device Capital Expenditures or Two-Way Capital Expenditures other than Two-Way Device Capital Expenditures in excess of $2,500,000 shall require the prior approval of the Board of Directors of the Parent. 54 SECTION 10.25. DEVICE CAPITAL EXPENDITURES. The Note Parties will not permit: (a) One-Way Device Capital Expenditures; and (b) Two-Way Device Capital Expenditures to be made or incurred for each of the quarters set forth below such that the cumulative amounts would not be in excess of the maximum cumulative amounts set forth below:
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way Capital Expenditures Capital Expenditures (dollars in millions) (dollars in millions) June 30, 2002 7.2 12.0 September 30, 2002 11.2 24.9 December 31, 2002 15.1 40.5 March 31, 2003 20.8 56.4 June 30, 2003 26.6 72.2 September 30, 2003 32.4 88.7 December 31, 2003 38.2 105.2 March 31, 2004 42.1 119.6 June 30, 2004 46.0 133.9 September 30, 2004 49.7 148.0 December 31, 2004 53.2 162.1 March 31, 2005 56.2 175.2 June 30, 2005 59.2 188.2 September 30, 2005 62.0 201.2 December 31, 2005 64.7 214.2 March 31, 2006 67.0 227.1 June 30, 2006 69.3 239.6 September 30, 2006 71.5 251.5 December 31, 2006 73.5 263.1 March 31, 2007 75.3 274.3
provided that (i) any commitments (measured in terms of number of devices) for such One-Way Device Capital Expenditures in either the Company's numerical or alphanumerical product lines, each measured separately, in excess of the prior three months' Gross Placements for such product line and (ii) any commitments (measured in terms of number of devices) for such Two-Way Device Capital Expenditures in excess of the prior two months' Gross Placements shall each require the prior approval of the Board of Directors of the Parent; provided, further, that (x) if One-Way SRM Revenue for the immediately preceding Fiscal Quarter is reported below Planned One-Way SRM Revenue for such Fiscal Quarter, the maximum amount of permitted One-Way Device Capital Expenditures shall be reduced by one-half of the percentage by which such reported One-Way SRM Revenue is below Planned One-Way SRM Revenue or (y) if Two-Way SRM Revenue for the immediately preceding Fiscal Quarter is reported below Planned Two-Way SRM Revenue for such Fiscal Quarter, the maximum amount of permitted Two-Way Device 55 Capital Expenditures shall be reduced by one-half of the percentage by which such reported Two-Way SRM Revenue is below Planned Two-Way SRM Revenue. SECTION 10.26. PROVISION OF FINANCIAL STATEMENTS. So long as any Notes are outstanding, the Company shall furnish to the Trustee and the Holders of the Notes, on the date the Company is required to file such information with the Commission (a) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by the Company's certified independent accountants and (b) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports. In addition, the Company shall file a copy of all information and reports referred to in clauses (a) and (b) above with the Commission for public availability within the time periods specified in the Commission's rules and regulations (unless the Commission will not accept that filing) and make that information available to securities analysts and prospective investors upon request. Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). SECTION 10.27. STATEMENT BY OFFICERS AS TO DEFAULT; NOTICE OF DEFAULT. (a) The Company will deliver to the Trustee, within 90 days after the end of each Fiscal Year of the Company ending after the date hereof, an Officers' Certificate, stating whether or not to the knowledge of the signers thereof the Company is in compliance with all the terms, provisions, covenants and conditions of this Indenture and if the Company shall be in Default under this Indenture, specifying all such Defaults and the nature and status thereof of which they may have knowledge and including the information referred to in clause (i) of subsection (b) below. (b) The Company will deliver to the Trustee within 45 days after the end of each Fiscal Quarter of any Fiscal Year, an Officers' Certificate (i) demonstrating compliance with each of the financial covenants contained in this Article X which is tested on a quarterly basis, and (ii) stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, stating the nature thereof and the action which the Company proposes to take with respect thereto. (c) The Company will, so long as any of the Notes are Outstanding, deliver to the Trustee, within five Business Days of becoming aware of any Default or Event of Default in the performance of any covenant, agreement or condition in this Indenture, an Officers' Certificate specifying such Default or Event of Default. ARTICLE XI COLLATERAL SECTION 11.01. COLLATERAL. 56 In order to secure the due and punctual payment of the Obligations, the Company and the Guarantors will grant security interests in and mortgages on their right, title and interest in and to the Collateral to the Collateral Agent pursuant to the Security Documents no later than the date of the first issuance of Notes under this Indenture. At the time the Security Documents are executed, the Company and the Guarantors will have full right, power and lawful authority to grant, bargain, sell, release, convey, hypothecate, assign, mortgage, transfer and confirm, absolutely, the property constituting the Collateral in the manner and form evidenced by the Security Documents, and will for so long as any Notes are outstanding, warrant and defend the title to the same against the claims of all Persons whatsoever unless the Collateral is released as provided herein or in the Security Documents. The claims of the Trustee and the Holders of the Notes against the Collateral will be subject to the terms and provisions of the Security Documents. SECTION 11.02. RECORDING AND OPINIONS. The Company and the Guarantors will cause, at their own expense, the Security Documents and all amendments or supplements thereto to be registered, recorded and filed or re-recorded, refiled and renewed in such manner and in such place or places, if any, as may be required by law in order fully to preserve and protect the Liens created by the Security Documents on all parts of the Collateral. The Company and the Guarantors shall furnish to the Trustee: (a) promptly after the execution and delivery of the Security Documents (at any time after the initial issuance of the Notes), an Opinion of Counsel either (i) stating that, in the opinion of such counsel, the assignment of the Collateral intended to be made by the Security Documents and all other instruments of further assurance or amendment have been properly recorded, registered and filed to the extent necessary to make effective the Lien intended to be created by the Security Documents, and reciting the details of such action or referring to prior opinions of counsel in which such details are given, and stating that as to the Security Documents such recording, registering and filing are the only recordings, registerings and filings necessary to give notice thereof and that no re-recordings, re-registerings or re-filings are necessary to maintain such notice, and further stating that all financing statements, continuation statements and other instruments have been executed and filed that are necessary fully to preserve and protect the rights of the Holders and the Trustee hereunder and under the Security Documents, or (ii) stating that, in the opinion of such counsel, no such action is necessary to make such Lien and assignment effective; and (b) if then required by the TIA, within 30 days after May 1 in each year beginning with May 1, 2003, an Opinion of Counsel, dated as of such date, either (i) stating that, in the opinion of such counsel, such action has been taken with respect to the recording, registering, filing, re-recording, re-registering and re-filing of all supplemental indentures, financing statements, continuation statements or other instruments of further assurance as are necessary to maintain the Lien of the Security Documents and reciting the details of such action or referring to prior opinions of counsel in which such details are given, and stating that all financing statements and continuation statements have been executed and filed that are necessary fully to preserve and protect the rights of the Holders and the Trustee hereunder and under the Security Documents, or (ii) stating that, in the opinion of such counsel, no such action is necessary to maintain such lien and assignment. SECTION 11.03. POSSESSION AND USE OF COLLATERAL. (a) So long as no Event of Default has occurred and is continuing, the Company and the Guarantors will have the right to remain in possession and retain exclusive control over the Collateral, to freely operate the Collateral and to collect, invest and dispose of the income therefrom. (b) Nothing in this Indenture or any of the Security Documents shall prohibit the Company or any Guarantors from transferring, by conveyance or otherwise, subject to the Lien of the 57 Security Documents, any of the assets constituting the Collateral to any Guarantor, for so long as the Guarantor remains a Guarantor, without any release or consent of the Trustee or the Majority Noteholders. SECTION 11.04. RELEASE AND DISPOSITION OF COLLATERAL. The Collateral shall be released from the Lien of the Security Documents as expressly provided therein or in connection with any transaction permitted by Section 10.11 of this Indenture. To the extent applicable, the Company shall cause TIA Section 314(d) relating to the release of property from the Lien of the Security Documents to be complied with. Any certificate or opinion required by TIA Section 314(d) may be made by an officer of the Company, except in cases in which TIA Section 314(d) requires that such certificate or opinion be made by an independent Person. The release of any Collateral from the terms hereof and of the Security Documents pursuant to the terms of the Security Documents or this Indenture will not be deemed to impair the security under this Indenture in contravention of the provisions hereof. SECTION 11.05. DISPOSITION OF COLLATERAL WITHOUT RELEASE. (a) In addition to and without limiting the provisions of Section 11.04 and subject to Section 10.11, at any time and from time to time, the Company and any Guarantors may without any release or consent of the Trustee or the Majority Noteholders: (i) sell, dispose of or transfer inventory in the ordinary course of the Company's or the Guarantors' business; (ii) collect, liquidate or otherwise dispose of Accounts (as defined in the Security Agreement) in the ordinary course of the Company's or the Guarantors' business; (iii) renegotiate and terminate leasehold interests in Collateral in the ordinary course of the Company's or the Guarantors' business; and (iv) sell or dispose of in the ordinary course of business free from the Liens of the Security Documents, any machinery, equipment, furniture, apparatus, tools or implements, materials or supplies or other similar property ("Subject Property") which the Company determines, in its reasonable opinion, may have become obsolete or unfit for use in the conduct of its businesses or the operation of the Collateral so long as (a) such Subject Property is replaced with or exchanged for property of equal value, and (b) upon replacing the same with, or exchanging for the same, new property, such new property shall without further action become Collateral subject to the Liens of the Security Documents; and (v) make cash payments from the deposit accounts of the Company in the ordinary course of business that are not otherwise prohibited by this Indenture. (b) The Company's and the Guarantors' right to rely upon subsection (a) of this Section for each Measurement Period shall be conditioned upon the Company and the Guarantors delivering to the Trustee and the Collateral Agent, within 30 days following the end of such Measurement Period, an Officers' Certificate to the effect that all sales of inventory, all collections and other dispositions of Accounts (as defined in the Security Agreement) and any other 58 disposition contemplated by Section 11.05(a) by the Company and the Guarantors during such Measurement Period were in the ordinary course of the Company's and the Guarantors' business and that all proceeds therefrom were used by the Company and the Guarantors in the ordinary course of their business or to make other cash payments permitted by this Indenture. ARTICLE XII GUARANTEES SECTION 12.01. GUARANTEES. Subject to this Article XII, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 4.02 hereof or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. Each Guarantor hereby agrees that its obligations with regard to this Guarantee shall be joint and several and unconditional, irrespective of the validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the extent permitted by applicable law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees, to the extent permitted by applicable law, not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (a) any right to require any of the Trustee, the Holders or the Company (each a "BENEFITED PARTY"), as a condition of payment or performance by such Guarantor, to (i) proceed against the Company, any other guarantor (including any other Guarantor) of the Obligations under the Guarantees or any other Person, (ii) proceed against or exhaust any security held from the Company, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Company or any other Person, or (iv) pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of the Obligations under the Guarantees; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Benefited Party's errors or omissions in the administration of the Obligations under the Guarantees, except behavior which amounts to bad faith; (e)(i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Guarantees and any legal or equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor's liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv) promptness, diligence and any requirement that 59 any Benefited Party protect, secure, perfect or insure any security interest or Lien on any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations under the Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any "One Action" rule and (h) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Guarantees. Each Guarantor hereby covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in its Guarantee and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 4.02 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Section 4.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. SECTION 12.02. SUBORDINATION OF GUARANTEE. The Obligations of each Guarantor under its Guarantee pursuant to this Article XII shall be junior and subordinated to the Senior Debt of such Guarantor on the same basis as the Notes are junior and subordinated to Senior Debt of the Company. For the purposes of the foregoing sentence, the Trustee and the Holders shall have the right to receive and/or retain payments by any of the Guarantors only at such times as they may receive and/or retain payments in respect of the Notes pursuant to this Indenture, including Article XII hereof. SECTION 12.03. LIMITATION ON GUARANTOR LIABILITY. Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor under this Article XII shall be limited to the maximum amount as shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, including, if applicable, its guarantee of all obligations under any Credit Agreement, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article XII, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance. 60 SECTION 12.04. EXECUTION AND DELIVERY OF GUARANTEE. To evidence its Guarantee set forth in Section 12.01 hereof, each Guarantor hereby agrees that a notation of such Guarantee in substantially the form included in Exhibit B shall be endorsed by an officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by its President or one of its Vice Presidents. Each Guarantor hereby agrees that its Guarantee set forth in Section 12.01 hereof shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an officer whose signature is on this Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the Guarantee shall be valid nevertheless. The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors. SECTION 12.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. Except as otherwise provided in this Section 12.05, no Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person whether or not affiliated with such Guarantor unless: (a) subject to this Section 12.05, the Person formed by or surviving any such consolidation or merger (if other than a Guarantor or the Company) unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee, under the Notes, this Indenture, and the Guarantee on the terms set forth herein or therein; and (b) the Guarantor complies with the requirements of Article VII and Section 10.09 hereof. In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Guarantees had been issued at the date of the execution hereof. Except as set forth in Article VII and Section 10.09 hereof, and notwithstanding clauses (a) and (b) above, nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor. SECTION 12.06. RELEASES FOLLOWING SALE OF ASSETS. 61 In the event of a sale or other disposition of all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all the capital stock of any Guarantor, in each case to a Person that is not (either before or after giving effect to such transactions) a subsidiary of the Company, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) shall be released and relieved of any obligations under its Guarantee; provided that the net proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation Section 10.11 hereof. Upon delivery by the Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation Section 10.11 hereof, the Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Guarantee. Any Guarantor not released from its obligations under its Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article XII. ARTICLE XIII SUBORDINATION SECTION 13.01. AGREEMENT TO SUBORDINATE. The Company agrees, and each Holder by accepting a Note agrees, that the Indebtedness evidenced by, and the payment of principal, premium, if any, and interest on, the Notes is subordinated in right of payment, to the extent and in the manner provided in this Article XIII, to the prior payment in full of all Senior Debt, and that the subordination is for the benefit of and enforceable by the holders of Senior Debt. SECTION 13.02. LIQUIDATION, DISSOLUTION OR BANKRUPTCY. Upon any payment or distribution of assets or securities of the Company of any kind or character, whether in cash, property or securities, upon any dissolution or winding up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company, all Senior Debt shall first be paid in full in cash, or payment provided for in cash or cash equivalents in a manner satisfactory to the holders of Senior Debt, before any direct or indirect payments or distributions, including, without limitation, by exercise of set-off, of any cash, property or securities on account of principal of (or premium, if any) or interest on the Notes and to that end the holders of Senior Debt shall be entitled to receive (subject to any agreements among the holders of Senior Debt, pro rata on the basis of the respective amounts of Senior Debt held by them) directly, for application to the payment thereof (to the extent necessary to pay all Senior Debt in full after giving effect to any substantially concurrent payment or distribution to or provision for payment to the holders of such Senior Debt), any payment or distribution of any kind or character, whether in cash, property or securities, which the Holders of the Notes would be entitled but for this Article XIII, except that the Holders of the Notes may receive and retain equity securities of the Company or debt securities of the Company that are subordinated to Senior Debt (and any debt securities issued in exchange for Senior Debt) to substantially the same extent as, or to a greater extent than, the Notes are subordinated to the Senior Debt pursuant to this Article XIII. The holders of Senior Debt are hereby authorized to file an appropriate claim for and on behalf of the Holders if they or any of them do not file, and there is not otherwise filed on behalf of the Holders, a proper claim or proof of claim in the form required in any such proceeding prior to 30 days before the expiration of the time to file such claim or claims. 62 SECTION 13.03. DEFAULT ON SENIOR DEBT. The Company may not make any direct or indirect payment to the Trustee or any Holder of principal of (premium, if any), or interest on, the Notes, whether pursuant to the terms of the Notes, upon acceleration or otherwise, if at the time of such payment there exists (i) a default in the payment of all or any portion of principal of (premium, if any), interest on, fees or other amounts owing in connection with any Senior Debt, or (ii) any other default under any document or instrument governing or evidencing any Senior Debt, and the Trustee has received written notice of such default from the Representative of the holders of Senior Debt, and, in either case, such default shall not have been cured or waived in writing; provided, however, that if within the period specified in the next sentence with respect to a default referred to in clause (ii) above, the holders of Senior Debt have not declared the Senior Debt to be immediately due and payable (or have declared such Senior Debt to be immediately due and payable and within such period have rescinded such acceleration), then and in that event, payment of principal of, and interest on, the Notes shall be resumed. With respect to any default under clause (ii) above, the period referred to in the preceding sentence shall commence upon receipt by the Trustee of a written notice or notices (which shall specify all defaults existing under the Senior Debt on the date of such notice and of which the Representative giving such notice had actual knowledge at such time) of the commencement of such period from such Representative, and shall end at the completion of the 179th day after the beginning of such period. Only one such 179 day period may commence within any 360 consecutive days. Upon termination of any such period, the Company shall resume payments on account of the principal of (premium, if any), and interest on, the Notes, subject to the provisions of this Article XIII. SECTION 13.04. RIGHTS AND OBLIGATIONS OF THE TRUSTEE AND THE HOLDERS. (a) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, the Trustee or any Holder shall have received any payment on account of the Notes at a time when such payment is prohibited by such provision before the Senior Debt is paid in full, then and in such event, such payment or distribution shall be received and held in trust by the Trustee or such Holders apart from their other assets and paid over or delivered to the holders of the Senior Debt remaining unpaid to the extent necessary to pay in full in cash the principal of (premium, if any), and interest on, such Senior Debt in accordance with its terms and after giving effect to any concurrent payment or distribution to the holders of such Senior Debt. (b) Nothing contained in this Article XIII will limit the right of the Trustee or the Holders of the Notes to take any action to accelerate the maturity of the Notes; provided, however, that the right of the Holders to receive any payment from the Company of principal of, or interest on, the Notes upon such acceleration shall be subject to the provisions of Section 13.03 hereof. (c) Upon any payment or distribution of assets or securities referred to in this Article XIII, the Trustee and the Holders shall be entitled to rely (i) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in Section 13.02 are pending; (ii) upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Trustee or to the Holders or (iii) upon the Representatives for the holders of Senior Debt for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Debt and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XIII. (d) In the event that the Trustee determines, in good faith, that evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article XIII, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and other facts pertinent to the rights of such Person under this Article XIV, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such 63 payment. The provisions of Sections 5.01 and 5.02 shall be applicable to all actions or omissions of actions by the Trustee pursuant to this Article XIII. SECTION 13.05. SUBROGATION. Upon the payment in full of all Senior Debt, the Holders of the Notes shall be subrogated to the extent of the payments or distributions made to the holders of, or otherwise applied to payment of, the Senior Debt pursuant to the provisions of this Article XIII and to the rights of the holders of Senior Debt to receive payments or distributions of assets of the Company made on the Senior Debt until the Notes shall be paid in full; and for the purposes of such subrogation, no payments or distributions to holders of Senior Debt of any cash, property or securities to which Holders of the Notes would be entitled except for the provisions of this Article XIII, no payment over pursuant to the provisions of this Article XIII to holders of Senior Debt by the Holders, shall, as between Company, its creditors other than holders of Senior Debt and the Holders of the Notes, be deemed to be payment by Company to or on account of Senior Debt, it being understood that the provisions of this Article XIII are solely for the purpose of defining the relative rights of the holders of Senior Debt, on the one hand, and the Holders of the Notes, on the other hand. If any payment or distribution to which the Holders would otherwise have been entitled but for the provisions of this Article XIII shall have been applied, pursuant to the provisions of this Article XIII, to the payment of Senior Debt, then and in such case, the Holders shall be entitled to receive from the holders of Senior Debt at the time outstanding any payments or distributions received by such holders of Senior Debt in excess of the amount sufficient to pay all Senior Debt in full. SECTION 13.06. OBLIGATIONS OF COMPANY UNCONDITIONAL. Subject to the terms and conditions of the Security Documents, nothing contained in this Article XIII or elsewhere in this Indenture or in the Notes is intended to or shall impair, as between the Company and the Holders, the obligations of the Company, which is absolute and unconditional, to pay to the Holders the principal of (premium, if any), and interest on, the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Notes and creditors of the Company other than the holders of the Senior Debt, nor shall anything herein or therein prevent any Holder from exercising all remedies otherwise permitted by applicable law upon the occurrence of a Default or Event of Default under this Indenture, subject to the rights, if any, under this Article XIII of the holders of Senior Debt in respect of cash, property or securities of the Company received upon the exercise of any such remedy. The failure to make a payment on account of principal of, or interest on, the Notes by reason of any provision of this Article XIII shall not be construed as preventing the occurrence of a Default or an Event of Default hereunder. SECTION 13.07. NOTICE BY THE COMPANY. The Company shall give prompt written notice to the Trustee and the Paying Agent of any fact known to the Company which would prohibit the making of any payment on or in respect of the Notes, but failure to give such notice shall not affect the subordination of the Notes to the Senior Debt provided in this Article XIII. Nothing contained in this Section 13.07 shall limit the right of the holders of Senior Debt to recover payments as contemplated by 13.01 and 13.02. SECTION 13.08. RIGHT AS HOLDER OF SENIOR DEBT. The Trustee or any Holder in its individual capacity shall be entitled to all the rights set forth in this Article XIII with respect to any Senior Debt which may at any time be held by it, to the same 64 extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee or such Holder of any of its rights as such holder. SECTION 13.09. REINSTATEMENT. The provisions of this Article XIII shall continue to be effective or be reinstated, and the Senior Debt shall not be deemed to be paid in full, as the case may be, if at any time any payment of any of the Senior Debt is rescinded or must otherwise be returned by the holder thereof upon the insolvency, bankruptcy or reorganization of the Company or otherwise, all as though such payment had not been made. SECTION 13.10. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding Section 13.03, the Trustee or Paying Agent may continue to make payments on the Notes and shall not be charged with knowledge of the existence of any facts that would prohibit the making of any such payments, unless not less than two Business Days prior to the date of such payment, a Responsible Officer of the Trustee shall have received at its office written notice of facts that would cause the payment of any principal of and interest on the Notes to violate this Article XIII. The Company, the Registrar or co-registrar, the Paying Agent, a Representative or a Holder of Senior Debt may give the notice; provided, however, that, if an issue of Senior Debt has a Representative, only the Representative may give the notice. The Trustee in its individual or any other capacity may hold Senior Debt with the same rights it would have if it were not Trustee. The Registrar and co-registrar and the Paying Agent may do the same with like rights. SECTION 13.11. TRUST MONEYS NOT SUBORDINATED. The Trustee shall be entitled to all the rights set forth in this Article XIII with respect to any Senior Debt which may at any time be held by it, to the same extent as any other holder of Senior Debt; and nothing in Article VI shall deprive the Trustee of any of its rights as such holder. Nothing in this Article XIII shall apply to claims of, or payments to, the Trustee under or pursuant to Section 5.07. SECTION 13.12. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a Note by the Holder's acceptance thereof authorizes and directs the Trustee on the Holder's behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Holders and the holders of Senior Debt as provided in this Article XIII, and appoints the Trustee to act as the Holder's attorney-in-fact for any and all such purposes. SECTION 13.13. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if it shall mistakenly pay over or distribute to Holders or the Company or any other Person, money or assets to which any holders of Senior Debt shall be entitled by virtue of this Article XIII or otherwise. SECTION 13.14. RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION PROVISIONS. Each Holder by accepting a Note acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior Debt, whether such Senior Debt was created or acquired before or after the issuance of the Notes, to acquire and continue to hold, or to continue to hold, such Senior Debt and such holder of Senior Debt shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Debt. 65 ARTICLE XIV MISCELLANEOUS SECTION 14.01. TRUST INDENTURE ACT CONTROLS. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA Section 318(c), the imposed duties shall control. SECTION 14.02. NOTICES. Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next-day delivery, to the other's address: If to the Company: Arch Wireless Holdings, Inc. 1800 West Park Drive, Suite 250 Westborough, Massachusetts 01581 Attention: J. Roy Pottle, Executive Vice President and Chief Financial Officer Telecopier No.: (508) 870-6076 With a copy to: Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Attention: Mark N. Polebaum, Esq. Telecopier No.: (617) 526-5000 If to the Trustee: The Bank of New York 101 Barclay Street, Floor 21 West New York, New York 10286 Telecopier No.: (212) 896-7294 Attention: Corporate Trust Administration The Company or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications. All notices and communications (other than those sent to Holders and the Trustee) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and communications to the Trustee shall be deemed duly given and effective only upon receipt. Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to its address shown on the Note Register. Any notice or communication shall also be so mailed to any Person described 66 in TIA Section 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it. If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time. SECTION 14.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES. Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c). SECTION 14.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any request or application by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee: (a) an Officers' Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with. SECTION 14.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include: (a) a statement that the Person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with. SECTION 14.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions. 67 SECTION 14.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS. No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, shall have any liability for any obligations of the Company under the Notes, this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy. SECTION 14.08. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. SECTION 14.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. SECTION 14.10. SUCCESSORS. All covenants and agreements of the Note Parties in this Indenture and the Notes and the Guarantees shall bind its successors. All covenants and agreements of the Trustee in this Indenture shall bind its successors. SECTION 14.11. SEVERABILITY. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 14.12. COUNTERPART ORIGINALS. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. SECTION 14.13. TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. [Signatures on following page] 68 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above. ARCH WIRELESS HOLDINGS, INC. By: ---------------------------------------- ARCH WIRELESS COMMUNICATIONS, INC. By: ---------------------------------------- ARCH WIRELESS, INC. By: ---------------------------------------- PAGING NETWORK CANADIAN HOLDINGS, INC. PAGENET SMR SUB, INC. ARCHTEL, INC. ARCH CONNECTICUT VALLEY, INC. BENBOW INVESTMENTS, INC. MOBILEMEDIA COMMUNICATIONS, INC. MOBILE COMMUNICATIONS CORPORATION OF AMERICA PAGING NETWORK, INC. PAGENET, INC. PAGING NETWORK OF AMERICA, INC. PAGING NETWORK OF COLORADO, INC. PAGING NETWORK OF NORTHERN CALIFORNIA, INC. PAGING NETWORK OF MICHIGAN, INC. PAGING NETWORK FINANCE CORP. PAGING NETWORK INTERNATIONAL, INC. PAGING NETWORK OF SAN FRANCISCO, INC. ARCH COMMUNICATION ENTERPRISES, LLC MOBILEMEDIA LICENSE CO., L.L.C. By: ---------------------------------------- THE BANK OF NEW YORK, as Trustee By: ---------------------------------------- 69 EXHIBIT A (Face of Note) 10% SENIOR SUBORDINATED SECURED NOTES DUE 2007 CUSIP _____________ NO. ________ $_____________ ARCH WIRELESS HOLDINGS, INC. promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of _________________ Dollars ($______________) on May 15, 2007. Interest Payment Dates: May 15 and November 15, commencing November 15, 2002. Record Dates: May 1 and November 1. A-1 IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. ARCH WIRELESS HOLDINGS, INC. By: --------------------------- Name: Title: This is one of the Global Notes referred to in the within-mentioned Indenture: THE BANK OF NEW YORK, as Trustee By: --------------------- Authorized Signatory Dated , 20 ------------- --- A-2 (Back of Note) 10% Senior Subordinated Secured Notes due 2007 Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. INTEREST. Arch Wireless Holdings, Inc., a Delaware corporation (the "COMPANY"), promises to pay interest on the principal amount of this Note at 10% per annum until maturity. The Company shall pay interest semi-annually on May 15 and November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of original issuance; provided, however, that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be the first of May 15 or November 15 to occur after the date of issuance. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If at any time an Event of Default has occurred and is continuing, the Company shall pay interest on demand at a rate that is 2% per annum in excess of the rate then in effect; it shall pay interest on overdue installments of interest from time to time on demand at the same rate to the extent lawful. 2. METHOD OF PAYMENT. The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are Holders at the close of business on the May 1 or November 1 next preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.11 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, premium, if any, and interest, if any, at the office or agency of the Company maintained for such purpose, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the Note Register; provided, however, that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest, if any, and premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. 3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its subsidiaries may act in any such capacity. 4. INDENTURE; Subordination. The Company issued the Notes under an Indenture dated as of [ ], 2002 ("INDENTURE") among the Company, the guarantors party thereto (the "GUARANTORS") and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are obligations of the Company limited in aggregate principal amount to $200,500,000. The Notes are subordinated in right of payment, to the extent and in the manner set forth in Article XIII of the Indenture, to the prior payment in full in cash or cash equivalents of all Senior Debt, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed. The Guarantees in respect of the Notes will be junior and subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash or cash equivalents of all Senior Debt of each Guarantor, whether outstanding on the date of the Indenture or thereafter created, incurred assumed or guaranteed. Each Holder by its acceptance hereof agrees to be bound by such provisions and authorizes and expressly directs the Trustee, on its behalf, to take such action as may be necessary or appropriate to effectuate the subordination provided for in the Indenture and appoints the Trustee its attorney-in-fact for such purposes. A-3 5. OPTIONAL REDEMPTION. (a) The Notes will be redeemable at the election of the Company, as a whole or from time to time in part, at any time on not less than 15 days' prior notice, without premium or penalty, together with accrued and unpaid interest to the Redemption Date (subject to the right of holders of record on the relevant record dates to receive interest due on an Interest Payment Date). (c) Any prepayment pursuant to this paragraph shall be made pursuant to the provisions of Sections 9.01 through 9.07 of the Indenture. 6. MANDATORY REDEMPTION. (a) The Company shall redeem $15,000,000 of the Notes, assuming such amount remains outstanding, on each Interest Payment Date. (b) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of the Company, on the next succeeding Interest Payment Date, the Company shall redeem Notes in an amount equal to the aggregate amount of such Net Cash Proceeds plus any interest accrued and paid thereon (subject to the requirements of Section 9.05 of the Indenture). Within five Business Days after receipt of the Net Cash Proceeds, the Company shall pay to the Collateral Agent such Net Cash Proceeds, to be held by the Collateral Agent in the Collateral Account established pursuant to Section 5.2(a) of the Collateral Agent Agreement for the benefit of the Holders of the Notes. The Company shall direct the Collateral Agent to invest the amount so deposited in an interest bearing bank deposit selected by the Company. On the next succeeding Interest Payment Date, the Trustee shall direct the Collateral Agent to deliver such Net Cash Proceeds, together with any interest accrued and paid thereon, to the Trustee for payment to the Holders of the Notes. (c) On the Determination Date, the Company shall calculate the Excess Cash Flow. On each Interest Payment Date, the Company shall redeem Notes in an amount equal to 100% of the Excess Cash Flow, if any. 7. REPURCHASE AT OPTION OF HOLDER. Upon the occurrence of a Change of Control, each Holder shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000) of such Holder's Notes (a "CHANGE OF CONTROL OFFER") at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the purchase date (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date). 8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 15 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption. 9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before the mailing of a notice of redemption of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. A-4 10. PERSONS DEEMED OWNERS. The registered holder of a Note may be treated as its owner for all purposes. 11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Majority Noteholders, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Majority Noteholders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company in the Indenture and in the Notes; to add to the covenants of the Company for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company; to grant additional security for the Notes; to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided that such action pursuant to this clause shall not adversely affect the interests of the Holders in any material respect; to name any Agent, Depositary or Registrar in accordance with the terms of the Indenture; to change the Trustee in accordance with the terms of the Indenture; or to make any change to comply with any requirement of the Commission in order to effect or maintain the qualification of the Indenture under the TIA. 12. DEFAULTS AND REMEDIES. Each of the following is an Event of Default under the Indenture (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any Governmental Authority): (1) default in the payment of any interest on any Note when it becomes due and payable and such default continues for a period of 5 days; (2) default in the payment of the principal of any Note at its Maturity (including pursuant to Sections 9.01 and 9.02 of the Indenture); (3) the Parent or any of the Subsidiaries shall fail for 60 days after written notice to the Company by the Trustee (at the direction of the holders of at least 25% in aggregate principal amount of the Notes then outstanding) or the holders of at least 25% in aggregate principal amount of the Notes then outstanding to observe or perform any covenant, condition or agreement contained in Sections 10.07, 10.08, 10.09, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.19, 10.20, 10.21, 10.22, 10.23, 10.24 or 10.25 of the Indenture; (4) the Parent or any of the Subsidiaries shall fail to observe or perform any other covenant, condition or agreement contained in the Indenture (other than those specified in clause (a), (b) or (c) of Section 4.01 of the Indenture), and such failure shall continue unremedied for 60 days after written notice thereof shall have been given to the Company by the Trustee (at the direction of the Majority Noteholders) or the Majority Noteholders; (5) (i) any Note Party shall fail to observe or perform any covenant, condition or agreement contained in the Security Documents to the extent it is a party thereto; (ii) any Note Party shall breach in any material respect any representation or warranty or agreement in any of the Security Documents or in any certificates delivered in connection therewith; (iii) the repudiation by any of them of any of their obligations under any of the Security Documents; (iv) the unenforceability of the Security Documents against any of them in any material respect for any reason which shall continue unremedied for 30 days after the earlier of the date on which (A) a Responsible Officer of the Parent becomes aware of such failure or (B) written notice thereof shall have been given to the Parent by the Trustee or the Majority Noteholders; or (v) the loss of the perfection or priority of the Liens granted by any of them pursuant to the Security Documents for any reason; (6) the Parent or any of the Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Obligations, when and as the same shall become due and payable (after giving effect to any applicable grace period); (7) any event or condition occurs that results in any Material Obligation becoming due prior to its scheduled maturity or payment date, or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Obligation or any trustee or agent on its or their behalf to cause any Material Obligation to become due prior to its scheduled maturity or payment date or requires the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or payment date (in each case after giving effect to any applicable cure period); provided that this clause (7) shall not apply to secured Indebtedness that becomes due solely as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; (8) certain events of bankruptcy or insolvency described in the Indenture with respect to the Parent or any of the Subsidiaries; (9) one or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 shall be rendered against the Parent or any of the Subsidiaries or any combination thereof (which shall not be fully covered by insurance without taking into account any applicable deductibles) and the same shall remain undischarged or unbonded for a period of 30 consecutive days during which execution shall not be effectively A-5 stayed; (10) an Event of Default under and as defined in the Junior Indenture or any Credit Agreement shall have occurred; or (11) any Guarantor disavows any of its obligations under its Guarantee of the Notes. If any Event of Default occurs and is continuing, the Trustee or the Majority Noteholders may declare all the Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes shall become due and payable without further action or notice; provided, however, that so long as any Senior Debt is outstanding, the acceleration shall not be effective until the earlier of (i) an acceleration of any Senior Debt or (ii) five Business Days after receipt by the Company of written notice of the acceleration of the Notes. Holders may not enforce the Indenture except as provided in the Indenture. Subject to certain limitations, the Majority Noteholders may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Majority Noteholders by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee. 14. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company or of any Guarantor, as such, shall have any liability for any obligations of the Company or any Guarantor under the Indenture, the Notes, the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes; such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy. 15. AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 16. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 17. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: Arch Wireless Holdings, Inc. 1800 West Park Drive, Suite 250 Westborough, Massachusetts 01581 Attention: A-6 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to - -------------------------------------------------------------------------------- (Insert assignee's soc. sec. or tax I.D. no.) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint --------------------------------------------------------- to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date: Your Signature: --------------- --------------------------------- (Sign exactly as your name appears on the face of this Note) Signature Guarantee: ------------------------------ A-7 SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
Principal Amount Amount of Amount of of this Global Signature of decrease in increase Note authorized Principal in Principal following such signatory Amount Amount decrease (or of Trustee or Date of Exchange of this Global Note of this Global Note increase) Note Custodian ---------------- ------------------- ------------------- --------- --------------
EXHIBIT B FORM OF NOTATION OF GUARANTEE For value received, each Guarantor (which term includes any successor Person under the Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in the Indenture and subject to the provisions in the Indenture, dated as of [ ], 2002 (the "Indenture"), by and among Arch Wireless Holdings, Inc., a Delaware corporation (the "COMPANY"), Arch Wireless Communications, Inc., a Delaware corporation ("ARCH"), Arch Wireless, Inc., a Delaware corporation (the "PARENT"), and the subsidiaries of the Parent listed on Schedule I thereto (such subsidiaries, the "SUBSIDIARY GUARANTORS," and together with Arch and the Parent, herein the "GUARANTORS") and The Bank of New York, as Trustee (the "TRUSTEE"), (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes (as defined in the Indenture), whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article XII of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. This Guarantee is subject to release as and to the extent set forth in Sections 12.05 and 12.06 of the Indenture. This Guarantee is subordinated in right of payment to the extent set forth in the Indenture. Each Holder of a Note, by accepting the same agrees to and shall be bound by such provisions. ARCH WIRELESS, INC. ARCH WIRELESS COMMUNICATIONS, INC. PAGING NETWORK CANADIAN HOLDINGS, INC. PAGENET SMR SUB, INC. ARCHTEL, INC. ARCH CONNECTICUT VALLEY, INC. BENBOW INVESTMENTS, INC. MOBILEMEDIA COMMUNICATIONS, INC. MOBILE COMMUNICATIONS CORPORATION OF AMERICA PAGING NETWORK, INC. PAGENET, INC. PAGING NETWORK OF AMERICA, INC. PAGING NETWORK OF COLORADO, INC. PAGING NETWORK OF NORTHERN CALIFORNIA, INC. PAGING NETWORK OF MICHIGAN, INC. PAGING NETWORK FINANCE CORP. PAGING NETWORK INTERNATIONAL, INC. PAGING NETWORK OF SAN FRANCISCO, INC. ARCH COMMUNICATION ENTERPRISES, LLC MOBILEMEDIA LICENSE CO., L.L.C. By: ----------------------------- Name: Title: Exhibit C COLLATERAL AGENT AGREEMENT AMONG ARCH WIRELESS, INC., ARCH WIRELESS HOLDINGS, INC., ARCH WIRELESS COMMUNICATIONS, INC., EACH OF THE OTHER GRANTORS PARTY HERETO, ANY ADMINISTRATIVE AGENT PARTY HERETO, THE BANK OF NEW YORK, AS SENIOR INDENTURE TRUSTEE THE BANK OF NEW YORK, AS JUNIOR INDENTURE TRUSTEE AND THE BANK OF NEW YORK, AS COLLATERAL AGENT DATED AS OF MAY 29, 2002 TABLE OF CONTENTS
Page ARTICLE 1. DEFINITIONS AND OTHER MATTERS ................................. 1 Section 1.1 Definitions ............................................... 1 Section 1.2 Rules of Interpretation ................................... 5 ARTICLE 2. APPOINTMENT AND ACCEPTANCE OF COLLATERAL AGENT ................ 6 Section 2.1 Appointment of Collateral Agent ........................... 6 Section 2.2 Acceptance of Duties ...................................... 6 Section 2.3 Acknowledgment of Collateral Agent ........................ 6 ARTICLE 3. CERTAIN OBLIGATIONS AND DUTIES OF THE COLLATERAL AGENT AND THE GRANTORS; POWERS OF ATTORNEY .................... 6 Section 3.1 Authorization to Execute Security Documents ............... 6 Section 3.2 Certain Representations and Warranties of the Collateral Agent ................................................... 7 Section 3.3 Actions; Control of the Collateral Agent .................. 7 Section 3.4 Additional Security Documents ............................. 8 Section 3.5 Powers of Attorney to the Collateral Agent and to AWHI .... 8 ARTICLE 4. DEFAULTS; REMEDIES ........................................... 9 Section 4.1 Notice of Default ......................................... 9 Section 4.2 Control by Administrative Agent and Indenture Trustees .... 9 Section 4.3 Remedies .................................................. 10 Section 4.4 Right to Initiate Judicial Proceedings, etc. .............. 11 Section 4.5 Appointment of a Receiver ................................. 11 Section 4.6 Exercise of Powers ........................................ 11 Section 4.7 Remedies Not Exclusive 12 Section 4.8 Waiver of Certain Rights 12 Section 4.9 Limitation on Collateral Agent's Duties in Respect 12 of Collateral Section 4.10 Limitation by Law ........................................ 13 Section 4.11 Absolute Rights of the Secured Parties ................... 13 ARTICLE 5. COLLATERAL ACCOUNT; APPLICATION OF MONEYS .................... 14 Section 5.1 Priority of Security Interests ............................ 14 Section 5.2 The Collateral Account .................................... 14 Section 5.3 Grant of Security Interest; Control of Collateral ......... 15 Account Section 5.4 Investment of Funds Deposited in Collateral Account ....... 15 Section 5.5 Application of Investments ................................ 15 ARTICLE 6. AGREEMENTS WITH THE COLLATERAL AGENT ......................... 16 Section 6.1 Delivery of Documents ..................................... 16 Section 6.2 Information as to Secured Parties ......................... 17 Section 6.3 Compensation and Expenses ................................. 17 Section 6.4 Stamp and Other Similar Taxes ............................. 17 Section 6.5 Filing Fees, Excise Taxes, etc. ........................... 18 Section 6.6 Indemnification ........................................... 18 Section 6.7 Further Assurances ........................................ 19 ARTICLE 7. COLLATERAL AGENT ............................................. 19 Section 7.1 Exculpatory Provisions .................................... 19
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Page Section 7.2 Delegation of Duties ...................................... 20 Section 7.3 Reliance by Collateral Agent .............................. 20 Section 7.4 Limitations on Duties of the Collateral Agent ............. 21 Section 7.5 Moneys Held By Collateral Agent ........................... 22 Section 7.6 Resignation and Removal of the Collateral Agent ........... 22 Section 7.7 Status of Successors to the Collateral Agent .............. 23 Section 7.8 Merger of the Collateral Agent. ........................... 23 ARTICLE 8. RELEASE OF COLLATERAL ........................................ 23 Section 8.1 Conditions to Release of Collateral ....................... 23 Section 8.2 Actions Following Release of the Collateral ............... 24 SECTION 9. AGREEMENTS AMONG BENEFICIARIES ............................. 24 Section 9.1 Other Agreements Among Secured Parties .................... 24 Section 9.2 Payment of Collateral Agent's Fees ........................ 25 Section 9.3 Invalidation of Payments .................................. 25 ARTICLE 10. OTHER PROVISIONS ............................................ 25 Section 10.1 Amendments, Supplements and Waivers ...................... 25 Section 10.2 Notices .................................................. 26 Section 10.3 Severability ............................................. 26 Section 10.4 Dealings with the Grantors ............................... 26 Section 10.5 Claims Against the Collateral Agent ...................... 26 Section 10.6 Binding Effect ........................................... 27 Section 10.7 Conflict with Other Agreements ........................... 27 Section 10.8 Administrative Agent ..................................... 27 ARTICLE 11. GOVERNING LAW ............................................... 27 ARTICLE 12. COUNTERPARTS ................................................ 27 ARTICLE 13. HEADINGS .................................................... 27 ARTICLE 14. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS .......... 27 ARTICLE 15. WAIVER OF JURY TRIAL ........................................ 28
EXHIBITS Exhibit A Form of Joinder Agreement (ii) COLLATERAL AGENT AGREEMENT, dated as of May 29, 2002, among ARCH WIRELESS, INC., a Delaware corporation (the "Parent"), ARCH WIRELESS HOLDINGS, INC., a Delaware corporation ("AWHI"), ARCH WIRELESS COMMUNICATIONS, INC., a Delaware corporation ("Arch"), each of the subsidiaries of the Parent party hereto, THE BANK OF NEW YORK, as Senior Indenture Trustee (as defined below), THE BANK OF NEW YORK, as Junior Indenture Trustee (as defined below), the Administrative Agent (as defined below) party hereto, and THE BANK OF NEW YORK, as Collateral Agent. RECITALS I. Reference is made to each of the following: 1. the Indenture ("Senior Indenture"), dated as of May 29, 2002, among AWHI, as issuer, the Parent and each of the Subsidiaries (other than AWHI), as guarantors, and The Bank of New York, as trustee (in such capacity, the "Senior Indenture Trustee"), pursuant to which AWHI issued its 10% Senior Subordinated Secured Notes due 2007 (the "Senior Notes"); 2. the Indenture ("Junior Indenture"), dated as of May 29, 2002, among AWHI, as issuer, the Parent and each of the Subsidiaries (other than AWHI), as guarantors, and The Bank of New York, as trustee (in such capacity, the "Junior Indenture Trustee"), pursuant to which AWHI issued its 12% Senior Subordinated Secured Compounding Notes due 2009 (the "Junior Notes"); 3. the Credit Agreement (as defined in the Security Agreement referred to below); and 4. the Security Agreement, dated as of May 29, 2002, by and among the Grantors and the Collateral Agent (the "Security Agreement"). II. In consideration for the execution and delivery of: (i) the Senior Indenture by the Senior Indenture Trustee, (ii) the Junior Indenture by the Junior Indenture Trustee, and (iii) the Credit Agreement by the Administrative Agent and the other Bank Credit Parties, the Grantors have executed and delivered the Security Agreement to secure, subject to the terms and conditions thereof, of this Collateral Agent Agreement and the Security Documents, the payment and performance of the Obligations. III. The execution, delivery and effectiveness of the Senior Indenture, the Junior Indenture and the Credit Agreement are conditioned upon this Collateral Agent Agreement having been duly executed and delivered. Accordingly, the parties hereto hereby agree as follows: ARTICLE 1. DEFINITIONS AND OTHER MATTERS Section 1.1 Definitions When used in this Collateral Agent Agreement, the following capitalized terms shall have the respective meanings ascribed thereto as follows: "Acceleration Default" has the meaning assigned to such term in the Security Agreement. "Administrative Agent" has the meaning assigned to such term in the Security Agreement. "Applicable Representative" has the meaning assigned to such term in the Security Agreement. "Approved Securities Intermediary" has the meaning assigned to such term in the Security Agreement. "Arch" has the meaning set forth in the preamble to this Collateral Agent Agreement. "AWHI" has the meaning set forth in the preamble to this Collateral Agent Agreement. "Bank Credit Party" has the meaning assigned to such term in the Security Agreement. "Bankruptcy Code" has the meaning assigned to such term in the Security Agreement. "Blocked Account Bank" has the meaning assigned to such term in the Security Agreement. "Blocked Account Letter" has the meaning assigned to such term in the Security Agreement. "Business Day" has the meaning assigned to such term in the Security Agreement. "Cash Equivalents" has the meaning assigned to such term in the Security Agreement. "Collateral" has the meaning assigned to such term in the Security Agreement. "Collateral Account" has the meaning assigned to such term in Section 5.2(a), which definition shall include any sub-accounts created thereunder. "Collateral Agent" means The Bank of New York, and its successors as provided herein. "Collateral Agent's Fees" means all fees, costs and expenses of the Collateral Agent of the types described in Sections 6.3, 6.4, 6.5 and 6.6. "Collateral Agent's Liens" means all Liens and Security Interests against the Secured Debt Collateral which result from (i) claims against the Collateral Agent unrelated to the transactions contemplated by this Collateral Agent Agreement and the other Security Documents or (ii) affirmative acts by the Collateral Agent creating a Lien or Security Interest other than as contemplated by this Collateral Agent Agreement. "Collateral Agreement Collateral" means defined in Section 5.3(a). -2- "Communications Act" has the meaning assigned to such term in the Security Agreement. "Control Account Letter" has the meaning assigned to such term in the Security Agreement. "Credit Agreement" has the meaning assigned to such term in the Security Agreement. "Credit Agreement Event of Default" has the meaning assigned to such term in the Security Agreement. "Credit Agreement Obligations" has the meaning assigned to such term in the Security Agreement. "Default" has the meaning assigned to such term in the Security Agreement. "Distribution Dates" means, the Business Days fixed by the Collateral Agent (the first of which shall occur as soon as practicable after a Notice of Acceleration Default has been given by the Applicable Representative or a Notice of Actionable Default has been given by Majority Creditors, but in no event more than ninety days after the giving by such Applicable Representative of a Notice of Acceleration Default or the giving by Majority Creditors of a Notice of Actionable Default which has not theretofore been withdrawn and the others of which shall, so long as such Notice of Acceleration Default shall not have been withdrawn by such Applicable Representative or such Notice of Actionable Default shall not have been withdrawn by Majority Creditors, be on the corresponding date (or if not a Business Day, the next Business Day) in each calendar month thereafter) for the distribution of all moneys held by the Collateral Agent in the Collateral Account. "FCC" has the meaning assigned to such term in the Security Agreement. "FCC License" has the meaning assigned to such term in the Security Agreement. "Foreign Pledge Agreements" has the meaning assigned to such term in the Security Agreement. "Governmental Authority" has the meaning assigned to such term in the Security Agreement. "Indentures" has the meaning assigned to such term in the Security Agreement. "Issuing Bank" has the meaning assigned to such term in the Security Agreement. "Joinder Agreement" means a Joinder Agreement, substantially in the form of Exhibit A. "Junior Note Event of Default" has the meaning assigned to such term in the Security Agreement. -3- "Junior Noteholder" has the meaning assigned to such term in the Security Agreement. "Junior Obligations" has the meaning assigned to such term in the Security Agreement. "Letter of Credit" has the meaning assigned to such term in the Security Agreement. "Lien" has the meaning assigned to such term in the Security Agreement. "Majority Creditors" has the meaning assigned to such term in the Security Agreement. "Material Adverse Effect" has the meaning assigned to such term in the Security Agreement. "Mortgage" has the meaning assigned to such term in the Security Agreement. "Notice of Acceleration Default" has the meaning assigned to such term in the Security Agreement. "Notice of Default" has the meaning assigned to such term in the Security Agreement. "Obligations" has the meaning assigned to such term in the Security Agreement. "Parent" has the meaning set forth in the preamble to this Collateral Agent Agreement. "Person" has the meaning assigned to such term in the Security Agreement. "Pledged Stock" has the meaning assigned to such term in the Security Agreement. "Proceeds" has the meaning assigned to such term in the Security Agreement. "Real Property" has the meaning assigned to such term in the Security Agreement. "Representative" means, in the case of the (i) Senior Indenture, the Senior Indenture Trustee, (ii) Junior Indenture, the Junior Indenture Trustee, and (iii) Credit Agreement, the Administrative Agent. "Responsible Officer" means, with respect to any Person, the Chairman of the Board, the President, the Chief Financial Officer, the Chief Executive Officer or the Treasurer of such Person. "Secured Debt Collateral" has the meaning assigned to such term in Section 2.3(a). -4- "Secured Debt Documents" has the meaning assigned to such term in the Security Agreement. "Secured Parties" has the meaning assigned to such term in the Security Agreement. "Security Agreement" has the meaning assigned to such term in paragraph 4 of Recital I. "Security Documents" has the meaning assigned to such term in the Security Agreement. "Security Interest" has the meaning assigned to such term in the Security Agreement. "Senior Note Event of Default" has the meaning assigned to such term in the Security Agreement. "Senior Note Obligations" has the meaning assigned to such term in the Security Agreement. "Senior Noteholder" has the meaning assigned to such term in the Security Agreement. "Senior Obligations" has the meaning assigned to such term in the Security Agreement. "Trust Indenture Act" means the Trust Indenture Act of l939. "UCC" has the meaning assigned to such term in the Security Agreement. Section 1.2 Rules of Interpretation The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified, (ii) any definition of or reference to any law shall be construed as referring to such law as from time to time amended and any successor thereto and the rules and regulations promulgated from time to time thereunder, (iii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iv) the words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Collateral Agent Agreement in its entirety and not to any particular provision hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Collateral Agent Agreement, and (vi) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. -5- ARTICLE 2. APPOINTMENT AND ACCEPTANCE OF COLLATERAL AGENT Section 2.1 Appointment of Collateral Agent Each of the Senior Indenture Trustee, on behalf of itself and each Senior Noteholder, the Junior Indenture Trustee, on behalf of itself and each Junior Noteholder, and the Administrative Agent, on behalf of itself and each other Bank Credit Party, hereby designates The Bank of New York, as Collateral Agent, for the purposes of executing and delivering on their behalf the Security Agreement, the Mortgages, the Foreign Pledge Agreements and the other Security Documents and to act as specified herein, and in the Mortgages, in the Foreign Pledge Agreements, the Security Agreement and the other Security Documents. Section 2.2 Acceptance of Duties The Collateral Agent, for itself and its successors, hereby accepts the duties and obligations required by this Collateral Agent Agreement, the Mortgages, the Foreign Pledge Agreements, the Security Agreement and the other Security Documents upon the terms and conditions hereof and thereof, including those contained in Article 7. Section 2.3 Acknowledgment of Collateral Agent (a) To secure the payment, observance and performance of the Obligations and in consideration of the premises and the mutual agreements set forth herein, the Collateral Agent does hereby acknowledge and accept that it holds as Collateral Agent, to the extent actually received as Collateral Agent, pursuant to this Collateral Agent Agreement, all of the following (and each Grantor does hereby consent thereto): (i) the Security Agreement, the Foreign Pledge Agreements and the Mortgages and the Liens granted to the Collateral Agent thereunder, (ii) the UCC financing statements, Blocked Account Letters and Control Account Letters required to be delivered pursuant to the Secured Debt Documents, (iii) each agreement entered into and delivered, from time to time, pursuant to Sections 3.4, 6.7 or 10.1(b) and the collateral granted to the Collateral Agent thereunder, (iv) the Collateral Agreement Collateral and (v) the Proceeds of each of the foregoing. The foregoing Security Documents, the Collateral, the Proceeds of any and all thereof and the right, title and interest of the Collateral Agent therein are hereinafter referred to collectively as the "Secured Debt Collateral." (b) The Collateral Agent hereby holds the Secured Debt Collateral under and subject to the terms and conditions set forth herein and in the other Security Documents, and for the benefit of the Secured Parties and for the enforcement of the payment of all Obligations, and for the performance of and compliance with the covenants and conditions of the Secured Debt Documents. ARTICLE 3 CERTAIN OBLIGATIONS AND DUTIES OF THE COLLATERAL AGENT AND THE GRANTORS; POWERS OF ATTORNEY Section 3.1 Authorization to Execute Security Documents The Collateral Agent shall execute and deliver each of the Security Documents requiring execution and delivery by it and shall accept delivery from each Grantor of those Security Documents which do not require the Collateral Agent's execution; provided, however, that the Collateral Agent shall have no duty to execute and deliver, or to accept delivery of, any Security Document not satisfactory to it. -6- Section 3.2 Certain Representations and Warranties of the Collateral Agent The Collateral Agent, in its capacity as Collateral Agent hereunder, represents and warrants to the Secured Parties as follows: (a) The Collateral Agent is a banking corporation duly incorporated, validly existing and in good standing under the laws of the State of New York and has all requisite corporate power and authority to enter into and perform its obligations under this Collateral Agent Agreement and the other Security Documents to which it is, or may become, a party. (b) The execution, delivery and performance by the Collateral Agent of this Collateral Agent Agreement and the other Security Documents to which it (i) is a party have been duly authorized by all necessary corporate action on the part of the Collateral Agent and (ii) becomes a party will be duly authorized by all necessary corporate action on the part of the Collateral Agent. (c) There are no Collateral Agent's Liens and the Collateral Agent, in its individual capacity, has no Liens or Security Interests against the Secured Debt Collateral. (d) This Collateral Agent Agreement and each of the other Security Documents to which the Collateral Agent is a party have been duly executed and delivered by the Collateral Agent. Assuming that this Collateral Agent Agreement and each of such other Security Documents have been duly authorized, executed and delivered by the other parties hereto and thereto, this Collateral Agent Agreement and each of such other Security Documents constitute the legal, valid and binding obligations of the Collateral Agent, enforceable against it in accordance with their respective terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting the enforcement of creditors' rights generally and by the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (e) There are no actions or proceedings pending or, to its knowledge, threatened against it before any Governmental Authority (A) which question the validity or enforceability of this Collateral Agent Agreement or any other Security Document to which it is a party, or (B) which relate to the banking or trust powers of the Collateral Agent and which, if determined adversely to the position of the Collateral Agent, would materially and adversely affect the ability of the Collateral Agent to perform its obligations under this Collateral Agent Agreement or any of the other Security Documents to which it is a party. Section 3.3 Actions; Control of the Collateral Agent (a) Subject to Sections 3.3(b) and 3.3(c) and except as otherwise provided in Section 3.3(d) and in the Security Agreement, the Collateral Agent shall take such action with respect to the Collateral and the Security Documents (including, but not limited to, exercising the rights and remedies provided in Article 4) as is requested in writing by and only by the Applicable Representative or, during the continuance of an Actionable Default, by Majority Creditors. Notwithstanding the foregoing, the Collateral Agent shall not be obligated to take any action which is in conflict with any provisions of law or of this Collateral Agent Agreement or the other Security Documents or with respect to which the Collateral Agent has not received adequate security or indemnity as provided in Section 7.3(d). Following the receipt by the Collateral Agent of a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors, and so long as such Notice of Acceleration Default or Notice of Actionable Default, as applicable, has not been withdrawn by the -7- Applicable Representative or Majority Creditors, as applicable, the Collateral Agent shall not take any action to enforce the Security Interest in the Collateral or foreclose on any Lien thereon unless the Collateral Agent has received instructions to do so in the manner provided in this Section 3.3. (b) The Collateral Agent shall not be obligated to follow any written directions received pursuant to Section 3.3(a) to the extent the Collateral Agent has received an opinion of independent counsel to the Collateral Agent to the effect that such written directions are in conflict with any provisions of law or this Collateral Agent Agreement; provided, however, that under no circumstances shall the Collateral Agent be liable for following the written instructions of the Applicable Representative or Majority Creditors at such times as such parties have the authority to act as herein provided. (c) Nothing in this Section 3.3 shall impair the right of the Collateral Agent to take or omit to take any action not inconsistent with any direction of the Applicable Representative or Majority Creditors at such times as such parties have the authority to act as herein provided. (d) The Collateral Agent shall have no duty to inquire into, investigate or ascertain the performance by any Grantor of any of the covenants or agreements of any Grantor contained herein or in any other agreement or document. (e) To the extent that a direction of the Applicable Representative requires the consent or direction of Majority Creditors, the giving of such direction shall be deemed to be a certification by the Applicable Representative that Majority Creditors have given their consent or such direction to the Applicable Representative. Section 3.4 Additional Security Documents In the event that a Grantor acquires any interest in any Collateral which is not covered by a Security Document in a manner which will perfect the Collateral Agent's Lien upon and Security Interest in such Collateral without further act or deed of the Collateral Agent, at the time such interest in such Collateral is acquired, to the extent that such Security Interest may be perfected by the execution and/or filing of a Security Document, then such Grantor shall immediately prepare, execute and deliver to the Collateral Agent such Security Documents, in form and substance similar to the Security Documents heretofore executed and delivered by the Grantors (and in form and substance acceptable to the Representatives), as are necessary to perfect the Collateral Agent's Lien upon and Security Interest in such Collateral. If the signature of the Collateral Agent is required on any such Security Document, such Grantor shall present such Security Document to the Collateral Agent for its signature, and the Collateral Agent shall execute such Security Document and shall cause the same to be filed or recorded with the public filing and/or recording offices as required or deemed advisable by the Applicable Representative to perfect or protect the Collateral Agent's Lien upon and Security Interest in such Collateral. Section 3.5 Powers of Attorney to the Collateral Agent and to AWHI (a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of such Grantor or the name of such attorney-in-fact for the purpose of signing documents and taking other action to perfect and protect the Liens and Security Interests of the Collateral Agent in the Collateral. Such power of attorney is a power coupled with an interest, shall be irrevocable and shall not first require the Collateral Agent to have received a Notice of Acceleration Default. -8- (b) Each Grantor (other than AWHI) hereby irrevocably constitutes and appoints AWHI and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of such Grantor or in its own name, from time to time in AWHI's discretion, to take or omit taking any and all actions hereunder for the purpose of carrying out the terms of this Collateral Agent Agreement and any of the other Security Documents, to receive and give all notices to be given by or received by such Grantor, to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes hereof and, without limiting the generality of the foregoing, hereby grants to AWHI the power and right on behalf of such Grantor, without assent by such Grantor, to bind such Grantor in all respects hereunder and under any of the other Security Documents, with the intent that all action taken by AWHI on behalf of such Grantor shall be binding upon and inure to the benefit of such Grantor as effectively as if such action were taken directly by such Grantor. Each such power of attorney is a power coupled with an interest and shall be irrevocable until all of the Obligations are paid in full in cash. ARTICLE 4 DEFAULTS; REMEDIES Section 4.1 Notice of Default (a) Upon actual receipt by an officer of the Collateral Agent of a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors, the Collateral Agent shall, within five Business Days thereafter, send a copy thereof to the other Representatives and each Grantor. Upon receipt of any written directions pursuant to Section 3.3(a), the Collateral Agent shall, within five Business Days thereafter, send a copy thereof to each Representative and each Grantor. (b) The Applicable Representative or Majority Creditors shall be entitled to withdraw a Notice of Default given by it or them, as applicable, by delivering written notice of withdrawal to the Collateral Agent (i) before the Collateral Agent takes any action to exercise any remedy with respect to the Collateral or (ii) thereafter, if the Grantors otherwise indemnify the Collateral Agent and the Secured Parties (in a manner satisfactory to the Collateral Agent and the Representatives in their sole discretion) with respect to all costs and expenses incurred by the Collateral Agent and the Secured Parties in connection with reversing all actions the Collateral Agent has taken to exercise any remedy or remedies with respect to the Collateral. The Collateral Agent or any Secured Party shall immediately notify each Grantor as to the receipt and contents of any such notice of withdrawal and shall promptly notify each of the Representatives, in the manner provided in Section 10.2, of the withdrawal of any Notice of Default and shall promptly send a copy of any such notice of withdrawal to the Representatives. Section 4.2 Control by Administrative Agent and Indenture Trustees (a) Subject to Section 4.2(b), if the Collateral Agent shall have received a (i) Notice of Acceleration Default and so long as such Notice of Acceleration Default has not been withdrawn in accordance with the provisions of Section 4.1(b), the Applicable Representative, and (ii) Notice of Actionable Default and so long as such Notice of Actionable Default has not been withdrawn in accordance with the provisions of Section 4.1(b), Majority Creditors, shall have the right, by an instrument in writing executed and delivered to the Collateral Agent, to direct the Collateral Agent to exercise, or to refrain from exercising, any right, remedy, trust or power available to or conferred upon the Collateral Agent hereunder or under any other Security Document and in connection therewith, to direct the time, method and place of conducting any proceeding for any right or remedy available to the Collateral Agent, or of exercising any trust or power conferred on the Collateral Agent, or for the appointment of a receiver, or for the taking of any other action authorized by this Collateral Agent -9- Agreement or any other Security Document; provided, however, that the Collateral Agent shall have received adequate security or indemnity as provided in Section 7.3(d) of this Collateral Agent Agreement. (b) The Collateral Agent shall not be obligated to follow any written directions received pursuant to Section 4.2(a) or Section 4.4 of this Collateral Agent Agreement to the extent the Collateral Agent has received a written opinion of its counsel to the effect that such directions are in conflict with any provisions of law or any applicable Security Document or any order of any court or Governmental Authority; provided, however, under no circumstances shall the Collateral Agent be liable for following such written directions of the Administrative Agent, the Senior Indenture Trustee or the Junior Indenture Trustee, as the case may be. (c) Nothing in this Section 4.2 shall impair the right of the Collateral Agent in its discretion to take or omit to take any action which is deemed proper by the Collateral Agent and which it believes in good faith is not inconsistent with any direction of the Administrative Agent, the Senior Indenture Trustee or the Junior Indenture Trustee, as the case may be, delivered pursuant to this Section 4.2; provided, however, the Collateral Agent shall not be under any obligation, as a result of this Section 4.2 or any other provision of this Collateral Agent Agreement, to take any action which is discretionary with the Collateral Agent under the provisions hereof or under any other Security Document unless so directed by the Administrative Agent, the Senior Indenture Trustee or the Junior Indenture Trustee, as the case may be. Section 4.3 Remedies (a) Upon receipt of a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors and during such time as such Notice of Acceleration Default or Notice of Actionable Default, as applicable, has not been withdrawn in accordance with the provisions of Section 4.1(b) and irrespective of whether the Collateral Agent has delivered notices to the other Representatives pursuant to Section 4.1(a) or Section 4.1(b), the Collateral Agent shall exercise the rights and remedies provided in this Article 4 and the rights and remedies provided in any of the other Security Documents in accordance with instructions of the Applicable Representative, in the case of a Notice of Acceleration Default, or Majority Creditors, in the case of a Notice of Actionable Default. (b) Each Grantor hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law and except as otherwise expressly provided in this Collateral Agent Agreement or any of the other Security Document) of any kind in connection with this Collateral Agent Agreement, any Collateral, any other Security Document or any Secured Debt Document. (c) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full irrevocable power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of such Grantor or in its own name, from time to time acting at the direction of the Applicable Representative (in its sole discretion) during the continuation of an Acceleration Default and Majority Creditors during the continuation of an Actionable Default, for the purpose of carrying out the terms of this Collateral Agent Agreement and any of the other Security Documents, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Collateral Agent Agreement any other Security Document, and hereby gives the Collateral Agent the power and right on behalf of such Grantor, without notice to or assent by such Grantor, to the extent permitted by applicable law, to do any or all of the following: -10- (i) to ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due or to become due with respect to the Collateral, (ii) to receive, take, indorse, assign and deliver any and all checks, notes, drafts, acceptances, documents and other negotiable and nonnegotiable instruments, documents and chattel paper taken or received by the Collateral Agent in connection herewith and therewith, (iii) to commence, file, prosecute, defend, settle, compromise or adjust any claim, suit, action or proceeding with respect to the Collateral, and (iv) to sell, transfer, assign or otherwise deal in or with the Collateral or any part thereof pursuant to the terms and conditions hereunder and thereunder. (d) If any Grantor fails to perform or comply with any of its agreements contained herein or in any other Security Document, the Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (e) All powers, authorizations and agencies contained in this Collateral Agent Agreement are coupled with an interest and are irrevocable until this Collateral Agent Agreement is terminated and the Security Interests created by the Security Documents are released. Section 4.4 Right to Initiate Judicial Proceedings, etc. (a) Even if the Collateral Agent has not received a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors, the Collateral Agent shall nevertheless have the right and power, but not the obligation, to institute and maintain such suits and proceedings as it may deem appropriate to protect and enforce the rights vested in it by this Collateral Agent Agreement and each other Security Document; provided, however, that as set forth in Section 3.3(a), foreclosure of the Liens and Security Interests in the Collateral may not be commenced prior to the Collateral Agent's receipt of a Notice of Acceleration Default and instructions from the Applicable Representative or a Notice of Actionable Default and instructions from Majority Creditors. (b) If and only if the Collateral Agent shall have received a Notice of Acceleration Default from the Applicable Representative and during such time as such Notice of Acceleration Default shall not have been withdrawn, the Collateral Agent may, either after entry or without entry, proceed by suit or suits at law or in equity to foreclose upon the Collateral and to sell all or, from time to time, any of the Secured Debt Collateral under the judgment or decree of a court of competent jurisdiction. Section 4.5 Appointment of a Receiver If a receiver of the Secured Debt Collateral shall be required to be appointed in any judicial proceeding, The Bank of New York may be appointed as such receiver. Notwithstanding the appointment of a receiver, the Collateral Agent shall be entitled to retain possession and control of all cash held by or deposited with it or its agents pursuant to any provision of this Collateral Agent Agreement or any other Security Document. Section 4.6 Exercise of Powers All of the powers, remedies and rights of the Collateral Agent as set forth in this Collateral Agent Agreement may be exercised by the Collateral Agent in respect of any Security -11- Document as though set forth at length therein, and all the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Section 4.7 Remedies Not Exclusive (a) No remedy conferred upon or reserved to the Collateral Agent herein or in the other Security Documents is intended to be exclusive of any other remedy or remedies, but every such remedy shall be cumulative and shall be in addition to every other remedy conferred herein or in any of the other Security Documents or now or hereafter existing at law or in equity or by statute. (b) No delay or omission of the Collateral Agent to exercise any right, remedy or power accruing upon any Default shall impair any such right, remedy or power or shall be construed to be a waiver of any such Default or an acquiescence therein; and every right, power and remedy given by this Collateral Agent Agreement or any other Security Document to the Collateral Agent may be exercised from time to time. (c) In case the Collateral Agent shall have proceeded to enforce any right, remedy or power under this Collateral Agent Agreement or any other Security Document and the proceeding for the enforcement thereof shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Agent, then and in every such case the Grantors, the Collateral Agent and the Secured Parties shall, subject to any effect of or determination in such proceeding, severally and respectively be restored to their former positions and rights hereunder and under such other Security Document with respect to the Secured Debt Collateral and in all other respects, and thereafter all rights, remedies and powers of the Collateral Agent shall continue as though no such proceeding had been taken. (d) All rights of action and rights to assert claims upon or under this Collateral Agent Agreement and the other Security Documents may be enforced by the Collateral Agent without the possession of any Secured Debt Document or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Collateral Agent shall be brought in its name as Collateral Agent and any recovery of judgment shall be held as part of the Secured Debt Collateral. Section 4.8 Waiver of Certain Rights Each Grantor, to the extent it may lawfully do so, on behalf of itself and all who may claim from, through or under it, including any and all subsequent creditors, vendees, assignees and lienors, expressly waives and releases any, every and all rights to demand or to have any marshaling of the Secured Debt Collateral upon any sale, whether made under any power of sale granted under the Security Documents, or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Collateral Agent Agreement or the other Security Documents and consents and agrees that all the Secured Debt Collateral may at any such sale be offered and sold as an entirety. In no event, however, does any Grantor waive any obligations of the Collateral Agent under applicable law to dispose of the Secured Debt Collateral in a commercially reasonable manner. Section 4.9 Limitation on Collateral Agent's Duties in Respect of Collateral Beyond its duties set forth in this Collateral Agent Agreement as to the custody of, and the accounting to the Grantors and the Representatives for, moneys received by it hereunder, the -12- Collateral Agent shall not have any duty to the Grantors or the Secured Parties as to any Collateral in its possession or control or in the possession or control of any agent or nominee of it or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. Section 4.10 Limitation by Law All the provisions of this Article 4 are intended to be subject to all applicable mandatory provisions of law which may be controlling in the premises and to be limited to the extent necessary so that they will not render this Collateral Agent Agreement invalid or unenforceable in whole or in part. Section 4.11 Absolute Rights of the Secured Parties (a) Notwithstanding any other provision of this Collateral Agent Agreement or any provision of any other Security Document but subject to the priorities contained in the Security Documents, including Section 1.4 of the Security Agreement and Section 5.1 of this Collateral Agent Agreement, neither the right of each Secured Party, which is absolute and unconditional, to receive payments of the Obligations held by such Secured Party on or after the due date thereof as expressed in the Secured Debt Documents, to institute suit for the enforcement of such payment on or after such due date, or to assert its position and views as a secured or unsecured creditor in, and to otherwise exercise any right (other than the right to enforce the Security Interest in the Collateral, which shall in all circumstances be exercisable only by the Collateral Agent and only as provided in this Collateral Agent Agreement and the other Security Documents) which such Secured Party may have in connection with, a case under the Bankruptcy Code in which a Grantor is a debtor, nor the obligation of each Grantor, which is also absolute and unconditional, to pay the Obligations owing by such Grantor to each Secured Party at the time and place expressed in the Secured Debt Documents shall be impaired or affected without the consent of such Secured Party. (b) Notwithstanding anything to the contrary contained in any Secured Debt Document or in any other agreement, instrument or document executed by any Grantor and delivered to the Collateral Agent, the Collateral Agent will not take any action pursuant to any Secured Debt Document or any other document referred to above which would constitute or result in any assignment of any FCC License or, to the extent failure to obtain such approval could reasonably be expected to have or cause a Material Adverse Effect, from any other applicable Governmental Authority, or any change of control (whether de jure or de facto) of such Grantor or any of its subsidiaries if such assignment of any such FCC License or change of control would require, under then existing law, the prior approval of the FCC or, to the extent failure to obtain such approval could reasonably be expected to have or cause a Material Adverse Effect, from any other applicable Governmental Authority, without first obtaining such prior approval of the FCC or such other Governmental Authority. Upon the occurrence of a Default or at any time thereafter during the continuance thereof, such Grantor agrees to take any action which the Collateral Agent, acting at the direction of the Applicable Representative, in the case of an Acceleration Default, or Majority Creditors, in the case of an Actionable Default, may reasonably request in order to obtain from the FCC or any other Governmental Authority such approval as may be necessary to enable the Collateral Agent to exercise and enjoy the full rights and benefits granted to the Collateral Agent by this Collateral Agent Agreement and the other documents referred to above, including specifically, at the cost and expense of such Grantor, the use of commercially reasonable efforts to assist in obtaining approval of the FCC or -13- such other Governmental Authority for any action or transaction contemplated by this Collateral Agent Agreement for which such approval is or shall be required by law, and specifically, without limitation, upon request, to prepare, sign and file with the FCC or such other Governmental Authority the assignor's or transferor's portion of any application or applications for consent to the assignment of license, FCC License or transfer of control necessary or appropriate under the FCC's or such other Governmental Authority's rules and regulations for approval of (i) any sale or other disposition of the Pledged Stock by or on behalf of the Collateral Agent, or (ii) any assumption by the Collateral Agent of voting rights in the Pledged Stock effected in accordance with the terms of this Collateral Agent Agreement. It is understood and agreed that all foreclosure and related actions will be made in accordance with the Communications Act and applicable regulations and published policies and decisions of the FCC, and the statutes, regulations and published policies and decisions enforced by such other Governmental Authorities pertaining to such foreclosure and related actions. ARTICLE 5. COLLATERAL ACCOUNT; APPLICATION OF MONEYS Section 5.1 Priority of Security Interests Notwithstanding (i) the time, order, manner or method of creation, attachment or perfection of the respective Security Interests and/or Liens granted to any Secured Party in or on any or all of the property or assets of the Grantors, (ii) the time or manner of the filing of the financing statements reflecting such Security Interests, (iii) whether any Secured Party or any bailee or agent thereof holds possession of any or all of the property or assets of the Grantors, (iv) the dating, execution or delivery of any agreement, document or instrument granting any Secured Party Security Interests and/or Liens in or on any or all of the property or assets of the Grantors and (v) any provision of the UCC or any other applicable law to the contrary, (y) any and all Security Interests, Liens, rights and interests of the Senior Indenture Trustee and/or holders of Senior Notes, whether now or hereafter arising and howsoever existing, in or on any or all of the Collateral, shall be and hereby are subordinated to any and all Security Interests, Liens, rights and interests of the Administrative Agent in and to the Collateral, and (z) any and all Security Interests, Liens, rights and interests of the Junior Indenture Trustee and/or holders of Junior Notes, whether now or hereafter arising and howsoever existing, in or on any or all of the Collateral, shall be and hereby are subordinated to any and all Security Interests, Liens, rights and interests of the Administrative Agent and the Senior Indenture Trustee and/or holders of Senior Notes in and to the Collateral. For purposes of the foregoing allocation of priorities, any claim of a right of setoff shall be treated in all respects as a Security Interest, and no claimed right of setoff shall be asserted to defeat or diminish the rights or priorities provided for herein. Section 5.2 The Collateral Account (a) On the date hereof there shall be established and, at all times thereafter there shall be maintained by the Collateral Agent an account which shall be entitled the "AWHI Collateral Account" (the "Collateral Account"). The Collateral Agent may establish and maintain one or more sub-accounts under the Collateral Account, each of which shall constitute a part of the Collateral Account. (b) Subject to paragraph (c) below, all moneys which are received by the Collateral Agent from the Company and which are identified as constituting Net Cash Proceeds (as such term is defined in the Senior Indenture or, if the Senior Indenture is not then in effect, the Junior Indenture) shall be deposited in the Collateral Account and thereafter shall be held, applied and/or disbursed by the Collateral Agent in accordance with the terms of this Section 5.2(b). All such moneys received by the Collateral Agent shall be invested in an interest bearing bank deposit as directed by AWHI. In the absence of such direction such moneys shall not be invested. As and when directed by the Applicable Representative in writing, the Collateral Agent shall deliver such amounts, together with any accrued interest thereon, to the Senior Trustee for application to the Senior Notes in accordance with the Senior Indenture or, if the Senior Indenture is not then in effect, to the Junior Trustee for application to the Junior Notes in accordance with the Junior Indenture. -14- (c) All moneys which are received by the Collateral Agent with respect to the Collateral at any time after a Notice of Acceleration Default shall have been given to the Collateral Agent by the Applicable Representative or a Notice of Actionable Default shall have been given to the Collateral Agent by Majority Creditors, and shall not have been withdrawn, shall be deposited in the Collateral Account and thereafter shall be held, applied and/or disbursed by the Collateral Agent in accordance with the terms of this Collateral Agent Agreement. In the event that any such Notice of Acceleration Default shall have been withdrawn by the Applicable Representative or any such Notice of Actionable Default shall have been withdrawn by Majority Creditors, upon the written request of AWHI, moneys on deposit in the Collateral Account shall be paid over to the Concentration Account or to another Blocked Account. Section 5.3 Grant of Security Interest; Control of Collateral Account (a) As security for the payment or performance, as applicable, in full of the Obligations, each Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates and transfers to the Collateral Agent (and its successors and assigns), for the benefit of the Collateral Agent and the Secured Parties, and hereby grants to the Collateral Agent (and its successors and assigns), for the benefit of the Collateral Agent and the Secured Parties, a security interest in all of the right, title and interest of such Grantor in and to the following, whether presently existing or hereafter arising or acquired (the "Collateral Agreement Collateral"): (i) the Collateral Account; (ii) all cash deposited therein; (iii) all certificates and instruments, if any, from time to time representing the Collateral Account; (iv) all investments from time to time made pursuant to Section 5.4; (v) all notes, certificates of deposit and other instruments from time to time hereafter delivered to or otherwise possessed by the Collateral Agent in substitution for, or in addition to, any or all of the then existing Collateral Agreement Collateral; (vi) all interest, dividends, cash, instruments, and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing Collateral Agreement Collateral; and (vii) to the extent not otherwise included in clauses (i) through (vi) of this Section 5.3(a), all Proceeds of any and all collections, earnings and accruals with respect to any or all of the foregoing (whether the same are acquired before or after the commencement of a case under the Bankruptcy Code by or against such Grantor as a debtor). (b) All right, title and interest in and to the Collateral Account shall vest in the Collateral Agent, and funds on deposit in the Collateral Account and other Collateral Agreement Collateral shall constitute part of the Secured Debt Collateral. The Collateral Account shall be subject to the exclusive dominion and control of the Collateral Agent. Section 5.4 Investment of Funds Deposited in Collateral Account Except as otherwise provided in Section 5.2(b), the Collateral Agent shall invest and reinvest moneys on deposit in the Collateral Account at any time in Cash Equivalents but only in accordance with the written instructions of the Applicable Representative specifying the particular investment. In the absence of the receipt of any such instructions, the moneys on deposit in the Collateral Account shall not be invested. All such investments and the interest and income received thereon and therefrom and the net proceeds realized on the sale thereof shall be held in the Collateral Account as part of the Secured Debt Collateral. Section 5.5 Application of Investments From and after the receipt by the Collateral Agent of a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors, and for as -15- long as such Notice of Acceleration Default or Notice of Actionable Default, as applicable, shall not have been withdrawn, assets held in the Collateral Account (other than cash) shall be sold or otherwise liquidated from time to time and the proceeds thereof shall, to the extent available for distribution, be distributed by the Collateral Agent on the first and each succeeding Distribution Date as follows: FIRST: To the Collateral Agent in an amount equal to the Collateral Agent's Fees which are unpaid as of such Distribution Date, and to the Representatives for the account of any Secured Party which has theretofor advanced or paid any such Collateral Agent's Fees in an amount equal to the amount thereof so advanced or paid by such Secured Party prior to such Distribution Date; provided, however, that nothing herein is intended to relieve any Grantor of its obligation to pay such costs, fees, expenses and liabilities from funds outside of the Collateral Account; SECOND: To the Administrative Agent, for its own account and for the account of the other Bank Credit Parties, in an amount equal to the unpaid Credit Agreement Obligations and any other amounts then due to the Administrative Agent or such other Bank Credit Parties, as applicable; provided that with respect to any outstanding Letters of Credit, the Collateral Agent shall withhold and retain in the Collateral Account the undrawn face amount of such Letters of Credit; provided further that if any undrawn Letter of Credit is thereafter drawn, the Collateral Agent shall pay to the Issuing Bank for payment to the drawee (or for its own account if the Issuing Bank has theretofor paid the drawee) the amount drawn up to the maximum amount retained by the Collateral Agent in respect of such Letter of Credit; and provided further that if any such Letter of Credit shall expire, the Collateral Agent shall distribute the amounts retained to secure such undrawn Letter of Credit to the Administrative Agent for the account of each Bank Credit Party, in each case pursuant to this Section 5.5); THIRD: To the Senior Indenture Trustee, for its own account and for the account of the Senior Noteholders, in an amount equal to the unpaid Senior Note Obligations and any other amounts then due to the Senior Indenture Trustee or the Senior Noteholders, as applicable; FOURTH: To the Junior Indenture Trustee, for its own account and for the account of the Junior Noteholders, in an amount equal to the unpaid Junior Note Obligations and any other amounts then due to the Junior Indenture Trustee or the Junior Noteholders, as applicable; and FIFTH: Provided that all Obligations have been paid in full in cash, any surplus then remaining shall be paid to the applicable Grantors or their successors or assigns, or as a court of competent jurisdiction may direct. ARTICLE 6. AGREEMENTS WITH THE COLLATERAL AGENT Section 6.1 Delivery of Documents On or promptly after the date hereof, AWHI will deliver to the Collateral Agent true and complete copies of all Secured Debt Documents (other than the Senior Notes, Junior Notes or the notes issued under the Credit Agreement) and all Security Documents; provided that the failure to provide the Collateral Agent with copies of such documents shall not affect the rights of the Secured Parties or the validity of the Collateral Agent's actions taken hereunder. AWHI further agrees that, promptly upon the execution thereof, AWHI will deliver to the Collateral Agent a true and complete copy of any Secured Debt Documents and Security Documents entered into by any Grantor subsequent to the date hereof, and a true and complete copy of any and all amendments, modifications or supplements to Secured Debt Document or Security Document entered into by any Grantor subsequent to the date hereof. -16- Section 6.2 Information as to Secured Parties At any time after the Collateral Agent has received a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors, and for as long as such Notice of Acceleration Default or Notice of Actionable Default, as applicable, shall not have been withdrawn, within five Business Days following the receipt of a request of the Collateral Agent: (i) the Senior Indenture Trustee shall deliver to the Collateral Agent, a schedule setting forth the aggregate principal amount of Senior Note Obligations, the aggregate amount accrued and unpaid interest, fees and other amounts constituting Senior Note Obligations and such other information as the Collateral Agent may request to make distributions pursuant to Section 5.5, (ii) the Junior Indenture Trustee shall deliver to the Collateral Agent, a schedule setting forth the aggregate principal amount of Junior Note Obligations, the aggregate amount accrued and unpaid interest, fees and other amounts constituting Junior Note Obligations and such other information as the Collateral Agent may request to make distributions pursuant to Section 5.5, and (iii) the Administrative Agent shall deliver to the Collateral Agent, a schedule setting forth the aggregate principal amount of Credit Agreement Obligations, the interest rate or rates and the letter of credit fee or fees then in effect with respect to such Credit Agreement Obligations, the aggregate amount accrued and unpaid interest, fees and other amounts constituting Credit Agreement Obligations and such other information as the Collateral Agent may request to make distributions pursuant to Section 5.5. Upon receipt of the requested information, the Collateral Agent shall compile such information and prepare a master schedule which the Collateral Agent shall promptly send to the Representatives. Section 6.3 Compensation and Expenses The Grantors jointly and severally agree to pay to the Collateral Agent as compensation for the Collateral Agent's services hereunder and under the other Security Documents and for administering the Secured Debt Collateral, (a) such reasonable fees as shall be agreed to in writing from time to time between AWHI and the Collateral Agent and (b) from time to time, upon demand, all of the fees, costs and expenses of the Collateral Agent (including the reasonable fees and disbursements of its counsel and such special counsel as the Collateral Agent elects to retain) (x) arising in connection with the preparation, execution, delivery, modification, restatement, amendment or termination of this Collateral Agent Agreement and each other Security Document or the enforcement (whether in the context of a civil action, adversary proceeding, workout or otherwise) of any of the provisions hereof or thereof, or (y) incurred or required or otherwise advanced in connection with the administration of the Secured Debt Collateral (including reimbursements or other payments made by the Collateral Agent to a Blocked Account Bank pursuant to a Blocked Account Letter or to an Approved Securities Intermediary pursuant to a Control Account Lender), the sale or other disposition of Collateral and the preservation, protection or defense of the Collateral Agent's rights under this Collateral Agent Agreement and in and to the Collateral and the Secured Debt Collateral. As security for such payment, the Collateral Agent shall have a Lien prior to the Obligations upon all Collateral and other property and funds held or collected by the Collateral Agent as part of the Secured Debt Collateral. The obligation of the Grantors to pay any and all fees, expenses, indemnities and other amounts due hereunder shall be joint and several and shall survive the termination of this Collateral Agent Agreement, the other Security Documents and the other Secured Debt Documents. Section 6.4 Stamp and Other Similar Taxes The Grantors jointly and severally agree to indemnify and hold harmless the Collateral Agent and each Secured Party from, and shall reimburse the Collateral Agent and each Secured Party for, any present or future claim for liability for any stamp or other similar tax and any penalties or interest -17- with respect thereto, which may be assessed, levied or collected by any jurisdiction in connection with this Collateral Agent Agreement, any other Security Document, the Secured Debt Collateral, or the attachment or perfection of the Security Interest granted to the Collateral Agent in any Collateral. The obligations of the Grantors under this Section 6.4 shall survive the termination of the other provisions of this Collateral Agent Agreement. Section 6.5 Filing Fees, Excise Taxes, etc. The Grantors jointly and severally agree to pay or to reimburse the Collateral Agent and each Secured Party for any and all amounts in respect of all search, filing, recording and registration fees, taxes, excise taxes and other similar imposts which may be payable or determined to be payable in respect of the execution, delivery, performance and enforcement of this Collateral Agent Agreement and each other Security Document and agree to save the Collateral Agent and each Secured Party harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omitting to pay such taxes and fees. The obligations of the Grantors under this Section 6.5 shall survive the termination of the other provisions of this Collateral Agent Agreement. Section 6.6 Indemnification (a) The Grantors jointly and severally agree to pay, indemnify and hold the Collateral Agent, each of the Secured Parties and each of their respective agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, amounts paid in settlement, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Collateral Agent Agreement, the other Security Documents and the Collateral, except to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments, amounts paid in settlement, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such indemnified party. As security for such payment, the Collateral Agent shall have a Lien prior to the Obligations upon all Collateral and other property and funds held or collected by the Collateral Agent as part of the Secured Debt Collateral. (b) In any suit, proceeding or action brought by the Collateral Agent under or with respect to the Collateral for any sum owing thereunder, or to enforce any provisions thereof, or of any of the Security Documents, including this Collateral Agent Agreement, the Grantors will save, indemnify and keep the Collateral Agent and the Secured Parties harmless from and against all expense, loss or damage suffered by reason of any defense, setoff, counterclaim, recoupment or reduction of liability whatsoever of the obligee thereunder, arising out of a breach by any Grantor of any of its obligations hereunder or thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such obligee or its successors from such Grantor, and all such obligations of the Grantors shall be and remain enforceable against and only against the Grantors and shall not be enforceable against the Collateral Agent or any Secured Party. (c) The agreements and obligations of the Grantors in this Section 6.6 shall survive resignation or removal of the Collateral Agent and the termination of the other provisions of this Collateral Agent Agreement. (d) If and to the extent that the obligations of the Grantors under this Section 6.6 are unenforceable for any reason, each Grantor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law. -18- Section 6.7 Further Assurances At any time and from time to time, upon the written request of the Collateral Agent, and at the expense of the Grantors, each Grantor will promptly execute and deliver any and all such further instruments and documents and take such further action as the Collateral Agent may deem necessary or desirable in obtaining the full benefits of this Collateral Agent Agreement and the other Security Documents and of the rights and powers herein and therein granted, including the filing of any financing or continuation statements or other instruments to perfect the Liens and Security Interests granted hereby and thereby. ARTICLE 7. COLLATERAL AGENT Section 7.1 Exculpatory Provisions (a) The Collateral Agent shall not be responsible in any manner whatsoever for the correctness of any recitals, statements, representations or warranties contained herein, in any other Security Document or in any Notice of Default or in any instructions purported to be from the Applicable Representative or Majority Creditors, except for those made by the Collateral Agent. The Collateral Agent makes no representations as to the value or condition of the Secured Debt Collateral or any part thereof, or as to the title of any Grantor thereto or as to the security afforded by the Security Documents, including this Collateral Agent Agreement or, except as set forth in Section 3.2, as to the validity, execution, enforceability, legality, perfection, priority or sufficiency of this Collateral Agent Agreement, any other Security Document, any other Secured Debt Document, or of the Obligations secured hereby and thereby, and the Collateral Agent shall incur no liability or responsibility in respect of any such matters. The Collateral Agent shall not be responsible for insuring, monitoring or maintaining the insurance on the Secured Debt Collateral or for the payment of taxes, charges, assessments or Liens upon the Secured Debt Collateral or otherwise as to the maintenance of the Secured Debt Collateral, except that (i) in the event the Collateral Agent enters into possession of a part or all of the Secured Debt Collateral, the Collateral Agent shall preserve the part in its possession, and (ii) the Collateral Agent will promptly, and at its own expense, take such action as may be necessary duly to remove and discharge (by bonding or otherwise) any Collateral Agent's Lien on any part of the Secured Debt Collateral or any other Lien on any part of the Secured Debt Collateral resulting from claims against it not related to the administration of the Secured Debt Collateral or (if so related) resulting from gross negligence or willful misconduct on its part. (b) The Collateral Agent shall not be required to ascertain or inquire as to the performance by any Grantor of any of the covenants or agreements contained herein, in any other Security Document or in any Secured Debt Document. Whenever it is necessary, or in the opinion of the Collateral Agent advisable, for the Collateral Agent to ascertain the identity of any Secured Party or to ascertain the amount of Obligations then held by a Secured Party, the Collateral Agent may rely on a certificate of such Secured Party's Representative as to such amount. (c) The Collateral Agent shall not be personally liable for any acts, omissions, errors of judgment or mistakes of fact or law made, taken or omitted to be made or taken by it in accordance with this Collateral Agent Agreement or any other Security Document (including acts, omissions, errors or mistakes with respect to the Collateral), except for those arising out of or in connection with the Collateral Agent's gross negligence or willful misconduct. In no event shall the Collateral Agent be liable for incidental, indirect, special or consequential damages, regardless of the form of action and even if the same were foreseeable. Notwithstanding anything set forth herein to the contrary, the Collateral Agent shall have a duty of reasonable care with respect to any Collateral which is delivered to the -19- Collateral Agent or its designated representatives and is in the Collateral Agent's or its designated representatives' possession and control. (d) The Collateral Agent shall not be liable for any claims, losses, liabilities, damages, costs, expenses and judgments (including reasonable attorneys' fees and expenses) due to forces beyond the reasonable control of the Collateral Agent, including strikes, work stoppages, acts of God, and interruptions, losses or malfunctions of utilities, communications or computer (software or hardware) services. (e) In performing the functions provided hereunder, no Representative shall be personally liable for any acts, omissions, errors of judgment or mistakes of fact or law made, taken or omitted to be made or taken by it in accordance with this Collateral Agent Agreement, except for those arising out of or in connection with such Representative's gross negligence or willful misconduct. In no event shall the Collateral Agent or the Representatives be liable for incidental, indirect, special or consequential damages, regardless of the form of action and even if the same were foreseeable. Section 7.2 Delegation of Duties The Collateral Agent may execute any of the powers hereof and perform any duty hereunder either directly or by or through agents, nominees or attorneys-in-fact. The Collateral Agent may act and conclusively rely, and shall be protected in acting and conclusively relying on, the opinion or advice of, or information obtained from, any counsel, accountant, appraiser or other expert or adviser, whether retained or employed by the Collateral Agent or the Representatives in relation to any matter in connection with this Collateral Agent Agreement, the Security Agreement or any other document, instrument or writing. The Collateral Agent shall be entitled to rely on the advice of counsel selected by it concerning all matters pertaining to such powers and duties. The Collateral Agent shall not be responsible for any acts or omissions, including any negligence or misconduct, of any agents, designated representatives, nominees or attorneys-in-fact selected by it, except for those arising out of or in connection with its gross negligence or willful misconduct. Section 7.3 Reliance by Collateral Agent (a) Whenever in the administration of this Collateral Agent Agreement the Collateral Agent shall deem it necessary or desirable that a matter be proved or established with respect to any Grantor in connection with the taking, suffering or omitting of any action hereunder by the Collateral Agent, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of a Responsible Officer of such Grantor delivered to the Collateral Agent, and such certificate shall be full warranty to the Collateral Agent for any action taken, suffered or omitted in reliance thereon, except for those arising out of or in connection with its without gross negligence or willful misconduct, subject, however, to the provisions of Section 7.4(b). (b) The Collateral Agent may consult with counsel, accountants and other experts selected by it, and any opinion of independent counsel, any such accountant, and any such other expert shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in accordance therewith. The Collateral Agent shall have the right at any time to seek instructions concerning the administration of the Secured Debt Collateral from any court of competent jurisdiction. -20- (c) The Collateral Agent may rely, and shall be fully protected in acting, upon any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document which it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of facsimile, to have been sent by the proper party or parties, including the information provided pursuant to Section 6.2. In the absence of its gross negligence or willful misconduct, the Collateral Agent may rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Collateral Agent and conforming to the requirements of this Collateral Agent Agreement or any other Security Document. (d) If the Collateral Agent has been requested or is otherwise required to take action pursuant to this Collateral Agent Agreement, the Collateral Agent shall not be under any obligation to exercise any of the rights or powers vested in the Collateral Agent by this Collateral Agent Agreement or any other Security Document unless the Collateral Agent shall have been provided adequate security and indemnity against the costs, expenses and liabilities which may be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Collateral Agent. Under no circumstances shall the Collateral Agent or any Representative have any liability for investments made from moneys in the Collateral Account pursuant to Section 5.4, and all such investments shall be at the sole risk of the Grantors. (e) The Collateral Agent shall not be required to inquire or investigate a Notice of Default or whether any instruction purported to be given by the Applicable Representative or Majority Creditors, as applicable, was in fact so given, or whether any such instruction is consistent with the Security Agreement or this Collateral Agent Agreement, and the Collateral Agent may assume the foregoing and shall be protected in conclusively relying thereon. (f) The Collateral Agent shall have no duty as to any Collateral in its possession or control, other than those duties specifically set forth herein, or the possession or control of any agent or bailee or any income thereon or as to the preservation or rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall endeavor to file such financing and continuation statements and record such documents or instruments in such places and at such times as shall be directed in writing by the Representatives. The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith. (g) The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of any Liens on any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, or for the validity of any title to the Collateral or otherwise as to the maintenance of the Collateral. The Collateral Agent shall have no duty to ascertain or inquire into the performance or observance by any other party of the terms of this Collateral Agent Agreement, the Security Agreement or any other agreement or document. Section 7.4 Limitations on Duties of the Collateral Agent (a) The Collateral Agent shall be obliged to perform such duties and only such duties as are specifically set forth in this Collateral Agent Agreement or in any other Security Document, and no implied covenants or obligations shall be read into this Collateral Agent Agreement or any other Security -21- Document against the Collateral Agent. The Collateral Agent shall, upon receipt of a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors, and for as long as such Notice of Acceleration Default or Notice of Actionable Default, as applicable, shall not have been withdrawn, and unless prevented from doing so by applicable law, exercise the rights and powers vested in it by this Collateral Agent Agreement or by any other Security Document, and the Collateral Agent shall not be liable with respect to any action taken or omitted by it in accordance with the direction of the Applicable Representative or Majority Creditors pursuant to Section 3.3. (b) Except as herein otherwise expressly provided, including upon the written request of the Applicable Representative or Majority Creditors pursuant to Section 3.3, the Collateral Agent shall not be under any obligation to take any action which is discretionary with the Collateral Agent under the provisions hereof or under any other Security Document. The Collateral Agent shall furnish to the Representatives promptly upon receipt thereof, a copy of each certificate or other paper furnished to the Collateral Agent by a Grantor under or in respect of this Collateral Agent Agreement, any other Security Document or any of the Secured Debt Collateral. Section 7.5 Moneys Held By Collateral Agent All moneys received by the Collateral Agent under or pursuant to any provision of this Collateral Agent Agreement or any other Security Document shall be held as Collateral for the purposes for which they were paid or are held. Section 7.6 Resignation and Removal of the Collateral Agent (a) The Collateral Agent may at any time, by giving thirty days' prior written notice to AWHI and the Representatives, resign and be discharged of the responsibilities hereby created, such resignation to become effective upon the appointment of a successor collateral agent or collateral agents by the Representatives and the acceptance of such appointment by such successor collateral agent or collateral agents. The Collateral Agent may be removed at any time without cause and a successor collateral agent appointed by the affirmative vote of Majority Creditors; provided that the Collateral Agent shall be entitled to its fees and expenses to the date of removal. If no successor collateral agent or collateral agents shall be appointed and approved within thirty days from the date of the giving of the aforesaid notice of resignation or within thirty days from the date of such removal, the Collateral Agent may apply, at the expense of the Grantors, to any court of competent jurisdiction to appoint a successor collateral agent or collateral agents (which may be an individual or individuals) to act until such time, if any, as a successor collateral agent or collateral agents shall have been appointed as above provided. Any successor collateral agent or collateral agents so appointed by such court shall immediately and without further act be superseded by any successor collateral agent or collateral agents appointed by the Majority Creditors. (b) If at any time the Collateral Agent shall resign, be removed or otherwise become incapable of acting, or if at any time a vacancy shall occur in the office of the Collateral Agent for any other cause, a successor collateral agent or collateral agents may be appointed by the Representatives, and the powers, duties, authority and title of the predecessor collateral agent or collateral agents terminated and canceled without procuring the resignation of such predecessor collateral agent or collateral agents, and without any other formality (except as may be required by applicable law) other than the appointment and designation of a successor collateral agent or collateral agents in writing, duly acknowledged, delivered to the predecessor collateral agent or collateral agents and AWHI, and filed for record in each public office, if any, in which this Collateral Agent Agreement is required to be filed. -22- (c) The appointment and designation referred to in Section 7.6(b) shall, after any required filing, be full evidence of the right and authority to make the same and of all the facts therein recited, and this Collateral Agent Agreement shall vest in such successor collateral agent or collateral agents, without any further act, deed or conveyance, all of the estate and title of its predecessor or their predecessors, and upon such filing for record the successor collateral agent or collateral agents shall become fully vested with all the estates, properties, rights, powers, trusts, duties, authority and title of its predecessor or their predecessors; but such predecessor or predecessors shall, nevertheless, on the written request of any Representative, AWHI, or its or their successor collateral agent or collateral agents, execute and deliver an instrument transferring to such successor or successors all the estates, properties, rights, powers, duties, authority and title of such predecessor or predecessors hereunder and shall deliver all securities and moneys held by it or them to such successor collateral agent or collateral agents. Should any deed, conveyance or other instrument in writing from AWHI be required by any successor collateral agent or collateral agents for more fully and certainly vesting in such successor collateral agent or collateral agents the estates, properties, rights, powers, duties, authority and title vested or intended to be vested in the predecessor collateral agent or collateral agents, any and all such deeds, conveyances and other instruments in writing shall, on request of such successor collateral agent or collateral agents, be so executed, acknowledged and delivered. (d) Any required filing for record of the instrument appointing a successor collateral agent or collateral agents as hereinabove provided shall be at the expense of the Grantors. The resignation of any collateral agent or collateral agents and the instrument or instruments removing any collateral agent or collateral agents, together with all other instruments, deeds and conveyances provided for in this Article 7 shall, if required by law, be forthwith recorded, registered and filed by and at the expense of the Grantors, wherever this Collateral Agent Agreement is recorded, registered and filed. Section 7.7 Status of Successors to the Collateral Agent Every successor to The Bank of New York appointed pursuant to Section 7.6 and every corporation resulting from a merger or consolidation pursuant to Section 7.8 shall be a bank or trust company in good standing and having power so to act, incorporated under the laws of the United States or any state thereof or the District of Columbia, and having its principal corporate trust office within the forty-eight contiguous states, and shall also have capital, surplus and undivided profits of not less than $250,000,000 and a rating from Standard & Poor's or Moody's of A or better. Section 7.8 Merger of the Collateral Agent. Any corporation into which the Collateral Agent shall be merged, or with which it shall be consolidated, or any corporation resulting from any merger or consolidation to which the Collateral Agent shall be a party or any corporation succeeding to all or substantially all of the corporate trust business of the Collateral Agent, shall be the Collateral Agent under this Collateral Agent Agreement without the execution or filing of any paper or any further act on the part of the parties hereto. ARTICLE 8. RELEASE OF COLLATERAL Section 8.1 Conditions to Release of Collateral (a) Subject to Sections 8.1(d) and 8.2, the Collateral Agent shall release its Security Interest in all of the Collateral on the date which is three Business Days after the date on which (i) the Collateral Agent shall have received written instructions from each Representative instructing the Collateral Agent to release its Security Interest in all of the Collateral, and (ii) accrued and unpaid Collateral Agent's Fees shall have been paid in full. (b) Subject to Sections 8.1(d) and 8.2, the Collateral Agent shall release its Security Interest in specific items or portions of the Collateral on the date which is no later than three Business Days after the date on which the Collateral Agent shall have received written instructions from each Representative instructing the -23- Collateral Agent to release its Security Interest in specific items or portions of the Collateral. (c) Notwithstanding anything contained in this Section 8.1 to the contrary, no Representative shall instruct the Collateral Agent to release its Security Interest in specific portions of the Collateral without the consent of each Representative, except to the extent that (i) the net cash proceeds of the Collateral so released are used to pay amounts owing under the Credit Agreement or, if the Credit Agreement Obligations have been paid in full, the Senior Indenture, or, if the Senior Note Obligations have been paid in full, the Junior Indenture or (ii) the release of Collateral is expressly permitted or required by the terms of the Secured Debt Documents. (d) Prior to each proposed release (within the meaning of Section 314(d) of the Trust Indenture Act) of Collateral pursuant to this Article 8, AWHI shall, if then required by Section 314(d) of the Trust Indenture Act, cause to be furnished to each Representative (with a copy to the Collateral Agent), an Officers' Certificate (as defined in each Indenture) and an Opinion of Counsel (as defined in each Indenture) to AWHI, each stating that such release (i) is contemplated by, and made in accordance with the terms of, this Collateral Agent Agreement and (ii) is not inconsistent with either Indenture or the Trust Indenture Act. Section 8.2 Actions Following Release of the Collateral To the extent that the Collateral Agent is required to release Collateral in accordance with Section 8.1, or the Security Interest in any Collateral granted pursuant to any of the Security Documents is otherwise terminated or released in accordance with the terms thereof, all right, title and interest of the Collateral Agent in, to and under such Collateral and the Security Interest of the Collateral Agent therein shall terminate and shall revert to the applicable Grantor or its successors and assigns, and the estate, right, title and interest of the Collateral Agent therein shall thereupon cease, terminate and become void. Following such request, instructions or other termination or release, the Collateral Agent shall, upon the written request of the applicable Grantor or its successors or assigns and at the cost and expense of the Grantors, or their successors or assigns, execute such instruments and take such other actions as are necessary or desirable to terminate any such Security Interest and otherwise to effectuate the release of the specified portions of the Collateral from the Lien of such Security Interest. Such termination and release shall be without prejudice to the rights of the Collateral Agent or any successor collateral agent to charge and be reimbursed for any expenditures which it may thereafter incur in connection therewith. SECTION 9. AGREEMENTS AMONG BENEFICIARIES Section 9.1 Other Agreements Among Secured Parties Each Secured Party by its acceptance of the benefits of this Collateral Agent Agreement and any other Security Document and the Collateral shall be deemed to have: -24- (a) agreed that should it obtain, receive or take any Collateral (by means of set-off, recoupment or otherwise), or recover any amounts under any Security Document, at any time after the Collateral Agent has received a Notice of Acceleration Default from the Applicable Representative or a Notice of Actionable Default from Majority Creditors, then the received Collateral or the amount recovered shall be delivered to the Collateral Agent for distribution in accordance with Section 5.5; and (b) agreed that any recovery of Collateral by any Secured Party with respect to the Obligations as a result of enforcement of any consensual or non-consensual Lien or Security Interest on any Collateral shall be remitted to the Collateral Agent for distribution in accordance with Section 5.5. Section 9.2 Payment of Collateral Agent's Fees In the event the Grantors do not pay the Collateral Agent's Fees, the Collateral Agent shall have the right, but not the obligation, to withdraw the Collateral Agent's Fees from the Collateral Account. In addition, in the event the Grantors do not pay the Collateral Agent's Fees, each Secured Party (other than the Collateral Agent) by its acceptance of the benefits of this Collateral Agent Agreement and any other Security Document and the Collateral shall be deemed to have agreed that any Proceeds of Collateral to which it shall be entitled shall be available to pay the Collateral Agent's Fees ratably in accordance with the proportion of the Obligations held by such Secured Party or, if there has been any recovery of the Obligations, in accordance with the proportion of (i) the Obligations recovered by such Secured Party to (ii) the aggregate amount of Obligations recovered by all Secured Parties. Section 9.3 Invalidation of Payments To the extent that any of the Secured Parties receives payments on the Obligations or receives Proceeds of Collateral which are subsequently invalidated, declared to be fraudulent or preferential, or are required to be repaid to a collateral agent, receiver or any other Person under the Bankruptcy Code or under state, federal or common law, then, to the extent the payments or Proceeds are so repaid, the Obligations or part thereof which was intended to be satisfied shall be revived and will continue to be in full force and effect as if those payments or Proceeds had never been received by such Secured Party. ARTICLE 10. OTHER PROVISIONS Section 10.1 Amendments, Supplements and Waivers (a) Except as set forth in Section 10.1(b), this Collateral Agent Agreement may not be amended, revised, restated or supplemented or waived without the prior written consent of AWHI, acting for itself and each other Grantor, and the Collateral Agent, acting with the consent of Majority Creditors. (b) The Grantors, the Representatives and the Collateral Agent, at any time and from time to time, may enter into additional Security Documents or one or more agreements supplemental hereto or to any other Security Document, in form satisfactory to the Collateral Agent: (i) to mortgage, pledge or grant a Security Interest in personal property of a type or category which is set forth in Section 1.3 of the Security Agreement or in any Real Property in favor of the Collateral Agent as additional security for the Obligations pursuant to any Security Document, or -25- (ii) to cure any ambiguity, to correct or supplement any provision herein or in any other Security Document which may be defective or inconsistent with any other provision herein or therein or make any other amendment or modification of any Security Document. Section 10.2 Notices All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows: (a) in the case of any Grantor, to such Grantor c/o Arch Wireless Holdings, Inc., 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581, Attention: J. Roy Pottle, Chief Financial Officer, Telephone: (508) 870-6703, Facsimile: (508) 870-6076, and (b) in the case of each other party hereto, to it at its Address for Notices set forth on its signature page hereto or, in the case of any Administrative Agent not party to the Credit Agreement on the date hereof, on its signature page to its Joinder Agreement; provided that in the case of notice to any Grantor other than AWHI, a copy thereof shall be sent to AWHI. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Collateral Agent Agreement shall be deemed to have been given on the date of receipt. Section 10.3 Severability Any provision of this Collateral Agent Agreement which is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction; provided that this Collateral Agent Agreement shall be construed so as to give effect to the intention expressed in Section 4.11. Section 10.4 Dealings with the Grantors Upon any application or demand by AWHI to the Collateral Agent to take or permit any action under any of the provisions of this Collateral Agent Agreement or any other Security Document, AWHI shall furnish to the Collateral Agent, with copies to each Representative, a certificate signed by a Responsible Officer of AWHI stating that all conditions precedent, if any, provided for in this Collateral Agent Agreement or any other Security Document relating to the proposed action have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Collateral Agent Agreement or any other Security Document, relating to such particular application or demand, no additional certificate or opinion need be furnished. Section 10.5 Claims Against the Collateral Agent Any claims or causes of action which a Secured Party or a Grantor shall have against the Collateral Agent shall survive the termination of this Collateral Agent Agreement and the release of the Collateral hereunder. -26- Section 10.6 Binding Effect This Collateral Agent Agreement shall be binding upon and inure to the benefit of each of the parties hereto and shall inure to the benefit of the Secured Parties and their respective successors and assigns, and nothing herein or in any other Security Document is intended or shall be construed to give any other Person any right, remedy or claim under, to or in respect of this Collateral Agent Agreement, any other Security Document or the Secured Debt Collateral. Section 10.7 Conflict with Other Agreements The parties agree that in the event of any conflict between the provisions of this Collateral Agent Agreement and the provisions of any of the other Security Documents, the provisions of this Collateral Agent Agreement shall control. Section 10.8 Administrative Agent Any Administrative Agent not party to this Credit Agreement may become a party hereto by executing a Joinder Agreement. Such Joinder Agreement will become effective upon the execution thereof by the Collateral Agent acting at the direction of the Applicable Representative. Upon such effectiveness, the Administrative Agent named therein shall be the Administrative Agent for all purposes under this Collateral Agent Agreement and the Security Agreement. The Collateral Agent shall deliver an executed copy of such Joinder Agreement to the Grantors and each Representative. ARTICLE 11. GOVERNING LAW THIS COLLATERAL AGENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. ARTICLE 12. COUNTERPARTS This Collateral Agent Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which, when taken together, shall constitute but one contract. Delivery of an executed counterpart of this Collateral Agent Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Collateral Agent Agreement. ARTICLE 13. HEADINGS Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Collateral Agent Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Collateral Agent Agreement. ARTICLE 14. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court thereof, in any action or proceeding arising -27- out of or relating to this Collateral Agent Agreement or the other Secured Debt Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that, to the extent permitted by applicable law, all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by applicable law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Collateral Agent Agreement shall affect any right that the Collateral Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Collateral Agent Agreement or the other Secured Debt Documents against such Grantor or any of its property in the courts of any jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Collateral Agent Agreement or the other Secured Debt Documents in any foregoing court referred to in this Article. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each of the parties hereto irrevocably consents to service of process in the manner provided for notices in Section 10.2. Nothing in this Collateral Agent Agreement will affect the right of any party hereto to serve process in any other manner permitted by law. ARTICLE 15. WAIVER OF JURY TRIAL EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS COLLATERAL AGENT AGREEMENT. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS COLLATERAL AGENT AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS ARTICLE. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -28- ARCH WIRELESS HOLDINGS, INC. COLLATERAL AGENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have duly executed this Collateral Agent Agreement as of the day and year first above written. ARCH WIRELESS, INC. ARCH WIRELESS HOLDINGS, INC. ARCH WIRELESS COMMUNICATIONS, INC. ARCH CONNECTICUT VALLEY, INC. Arch Communications Enterprises, LLC Archtel, Inc. MobileMedia Communications, Inc. Mobile Communications Corporation of America MobileMedia License Co., L.L.C. Benbow Investments, Inc. Paging Network, Inc. PageNet, Inc. Paging Network Finance Corp. Paging Network International, Inc. Paging Network of America, Inc. Paging Network of Colorado, Inc. Paging Network of Michigan, Inc. Paging Network of Northern California, Inc. Paging Network of San Francisco, Inc. Paging Network Canadian Holdings, Inc. Pagenet SMR Sub, Inc. AS TO EACH OF THE FOREGOING By: --------------------------------------- Name: --------------------------------------- Title: --------------------------------------- ARCH WIRELESS HOLDINGS, INC. COLLATERAL AGENT AGREEMENT THE BANK OF NEW YORK, as Collateral Agent By: --------------------------------------- Name: --------------------------------------- Title: --------------------------------------- Address for Notices The Bank of New York 101 Barclay Street Floor 21 West New York, New York 10286 Attention: Corporate Trust Administration Facsimile: (212) 896-7294 ARCH WIRELESS HOLDINGS, INC. COLLATERAL AGENT AGREEMENT THE BANK OF NEW YORK, as Senior Indenture Trustee By: --------------------------------------- Name: --------------------------------------- Title: --------------------------------------- Address for Notices The Bank of New York 101 Barclay Street Floor 21 West New York, New York 10286 Attention: Corporate Trust Administration Facsimile: (212) 896-7294 THE BANK OF NEW YORK, as Junior Indenture Trustee By: --------------------------------------- Name: --------------------------------------- Title: --------------------------------------- Address for Notices The Bank of New York 101 Barclay Street Floor 21 West New York, New York 10286 Attention: Corporate Trust Administration Facsimile: (212) 896-7294 EXHIBIT A TO COLLATERAL AGENT AGREEMENT FORM OF JOINDER AGREEMENT JOINDER AGREEMENT (this "Joinder Agreement"), dated as of _________, 200_, under the Collateral Agent Agreement, dated as of May 29, 2002, among ARCH WIRELESS HOLDINGS, INC., a Delaware corporation ("AWHI"), ARCH WIRELESS, INC., a Delaware corporation (the "Parent"), ARCH WIRELESS COMMUNICATIONS, INC., a Delaware corporation, the Subsidiaries of the Parent party thereto, and THE BANK OF NEW YORK, as Collateral Agent (as amended, supplemented or otherwise modified from time to time, the "Collateral Agent Agreement"). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Collateral Agent Agreement. Section 10.8 of the Collateral Agent Agreement provides that a Person acting as administrative agent under a credit agreement with AWHI which is not party to the Collateral Agent Agreement may become the Administrative Agent referred to in the Security Agreement and the Collateral Agent Agreement by execution and delivery of an instrument in the form of this Joinder Agreement. The undersigned (the "New Administrative Agent") is executing this Joinder Agreement in accordance with the requirements of the Collateral Agent Agreement to become the Administrative Agent under the Security Agreement and the Collateral Agent Agreement. Accordingly, the parties hereto agree as follows: 1. In accordance with Section 10.8 of the Collateral Agent Agreement, the New Administrative Agent by its signature below becomes the Administrative Agent under the Security Agreement and the Collateral Agent Agreement with the same force and effect as if its was an original signatory to each thereof and New Administrative Agent hereby agrees to be bound by all of the terms and provisions of the Security Agreement applicable to it as Administrative Agent thereunder. Each reference to the "Administrative Agent" in the Security Agreement and the Collateral Agent Agreement shall be deemed to refer to the New Administrative Agent. 2. The New Administrative Agent represents and warrants to the Collateral Agent and the other Secured Parties that (i) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) it is the Administrative Agent under the [IDENTIFY CREDIT AGREEMENT] and that it is executing this Joinder Agreement on behalf of itself and each lender under such Credit Agreement. 3. This Joinder Agreement may be executed in counterparts (and by each party hereto on a different counterpart), each of which shall constitute an original, but both of which, when taken together, shall constitute but one contract. This Joinder Agreement shall become effective when the Collateral Agent shall have received counterparts of this Joinder Agreement that, when taken together, bear the signatures of the New Administrative Agent and the Collateral Agent. Delivery of an executed counterpart of this Joinder Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Joinder Agreement. 4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 5. In the event any one or more of the provisions contained in this Joinder Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein, in the Collateral Agent Agreement and in the Security Agreement shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. 6. All communications and notices hereunder shall be in writing and given as provided in Section 10.2 of the Collateral Agent Agreement. All communications and notices hereunder to the New Administrative Agent shall be given to it at the address set forth on its signature page hereto. -2- IN WITNESS WHEREOF, the New Administrative Agent and the Collateral Agent have duly executed this Joinder Agreement as of the day and year first above written. [NAME OF NEW ADMINISTRATIVE AGENT] By: --------------------------------------- Name: --------------------------------------- Title: --------------------------------------- Address for Notices THE BANK OF NEW YORK, as Collateral Agent By: ---------------------------------- Name: ---------------------------------- Title: ---------------------------------- Exhibit D SECURITY AGREEMENT AMONG ARCH WIRELESS, INC., ARCH WIRELESS HOLDINGS, INC., ARCH WIRELESS COMMUNICATIONS, INC., EACH OF THE SUBSIDIARIES OF ARCH WIRELESS INC. PARTY HERETO AND THE BANK OF NEW YORK, AS COLLATERAL AGENT DATED AS OF MAY 29, 2002 TABLE OF CONTENTS
Page ARTICLE 1. DEFINITIONS; GRANT OF SECURITY; CONTINUING PERFECTION AND PRIORITY................................ 1 Section 1.1 General Definitions........................................................................... 1 Section 1.2 Interpretation; References to the UCC......................................................... 18 Section 1.3 Grant of Security............................................................................. 18 Section 1.4 Ranking of Obligations........................................................................ 20 Section 1.5 Power of Attorney to AWHI..................................................................... 20 ARTICLE 2. SECURITY FOR OBLIGATIONS; NO ASSUMPTION OF LIABILITY............................................. 21 Section 2.1 Security for Obligations...................................................................... 21 Section 2.2 No Assumption of Liability.................................................................... 21 ARTICLE 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS...................................................... 21 Section 3.1 Generally 21 Section 3.2 Equipment and Inventory....................................................................... 25 Section 3.3 Receivables................................................................................... 26 Section 3.4 Investment Property........................................................................... 27 Section 3.5 Deposit Accounts.............................................................................. 28 Section 3.6 Letter of Credit Rights....................................................................... 30 Section 3.7 Intellectual Property......................................................................... 30 Section 3.8 Commercial Tort Claims........................................................................ 32 Section 3.9 Real Property................................................................................. 32 ARTICLE 4. FURTHER ASSURANCES................................................................................ 33 Section 4.1 Further Assurances............................................................................ 34 Section 4.2 Additional Subsidiaries; Foreign Subsidiaries................................................. 35 Section 4.3 Opinion of Counsel............................................................................ 36 ARTICLE 5. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT....................................................... 36 ARTICLE 6. REMEDIES UPON DEFAULT............................................................................. 37 Section 6.1 Remedies Generally............................................................................ 37 Section 6.2 Pledged Stock................................................................................. 39 Section 6.3 Grant of License to Use Intellectual Property................................................. 40 Section 6.4 Registration, etc............................................................................. 40 Section 6.5 Cash Proceeds................................................................................. 41 Section 6.6 Application of Proceeds....................................................................... 41 ARTICLE 7. THE COLLATERAL AGENT.............................................................................. 41 ARTICLE 8. SECURITY INTEREST ABSOLUTE........................................................................ 41 ARTICLE 9. TERMINATION; RELEASE.............................................................................. 42 ARTICLE 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM................................................... 42 ARTICLE 11. INDEMNITY AND EXPENSES........................................................................... 42
TABLE OF CONTENTS
Page Section 11.1 Indemnification.............................................................................. 42 Section 11.2 Survival..................................................................................... 43 ARTICLE 12. NOTICES.......................................................................................... 43 ARTICLE 13. ADDITIONAL GRANTORS.............................................................................. 43 ARTICLE 14. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS................................................... 43 ARTICLE 15. SURVIVAL OF AGREEMENT; SEVERABILITY.............................................................. 44 ARTICLE 16. AMENDMENTS AND WAIVERS........................................................................... 44 ARTICLE 17. GOVERNING LAW.................................................................................... 44 ARTICLE 18. COUNTERPARTS..................................................................................... 44 ARTICLE 19. HEADINGS......................................................................................... 44 ARTICLE 20. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS............................................... 44 ARTICLE 21. WAIVER OF JURY TRIAL............................................................................. 45
(ii)
SCHEDULES: Schedule 3.1(a)(i) List of Chief Executive Offices, Jurisdictions of Organization and Federal Employer Identification Numbers Schedule 3.1(a)(ii) List of Legal and Other Names Schedule 3.1(a)(iv) List of FCC Licenses Schedule 3.1(a)(vi) Capitalization of Subsidiaries Schedule 3.1(a)(vii) List of Filing Offices Schedule 3.2 List of Locations of Equipment and Inventory Schedule 3.4 List of Pledged Collateral Schedule 3.5 List of Deposit Accounts and Control Accounts Schedule 3.6 List of Letters of Credit Schedule 3.7 List of Intellectual Property Schedule 3.8 List of Commercial Tort Claims Schedule 3.9(a)(i) List of Owned Real Property Schedule 3.9(a)(ii) List of Leased Real Property Schedule 3.9(a)(ii)(D) List of Real Property Leases Schedule 3.9(b)(ii) List of Material Real Property Leases EXHIBITS: Exhibit A Form of Supplement Exhibit B Form of Blocked Account Letter Exhibit C Form of Control Account Letter Exhibit D Form of Landlord Consent
SECURITY AGREEMENT, dated as of May 29, 2002, among ARCH WIRELESS, INC., a Delaware corporation (the "Parent"), ARCH WIRELESS HOLDINGS, INC., a Delaware corporation ("AWHI"), ARCH WIRELESS COMMUNICATIONS, INC., a Delaware corporation ("Arch"), each of the direct and indirect subsidiaries of the Parent party hereto and THE BANK OF NEW YORK, as Collateral Agent under the Collateral Agent Agreement referred to below. RECITALS I. On November 9, 2001, three creditors filed an involuntary petition against Arch under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"). II. On December 6, 2001, Arch consented to entry of an order for relief and the Parent and the other Guarantors each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of Massachusetts (the "Bankruptcy Court"). III. AWHI and the Guarantors filed Debtors' First Amended Joint Plan of Reorganization which was confirmed by the Bankruptcy Court entered on May 15, 2002 (as amended, the "Plan"). IV. Pursuant to the Plan, AWHI is required to issue the Senior Notes and the Junior Notes (as defined herein), to certain holders of Indebtedness of AWHI and certain of the Guarantors outstanding on the date the Plan was confirmed by the Bankruptcy Court. V. As contemplated by the Plan, AWHI is entering into the Credit Agreement (as defined herein) on the date hereof. VI. Pursuant to the Plan, (i) the Obligations of the Grantors in respect of the Credit Agreement are to be secured by a first priority security interest in the Collateral, (ii) the Obligations of the Grantors in respect of the Senior Notes are to be secured by a second priority security interest in the Collateral, and (iii) the Obligations of the Grantors in respect of the Junior Notes are to be secured by a third priority security interest in the Collateral. Accordingly, each of the Grantors and the Collateral Agent, on behalf of itself and each other Secured Party (and each of their respective successors or assigns), hereby agree as follows: ARTICLE 1. DEFINITIONS; GRANT OF SECURITY; CONTINUING PERFECTION AND PRIORITY Section 1.1 General Definitions As used in this Security Agreement, the following terms shall have the meanings specified below: "Acceleration Default" means, with respect to (i) the Bank Credit Parties, a Credit Agreement Event of Default has occurred, and, as a result thereof, there has been an acceleration of the Credit Agreement Obligations, (ii) the Senior Noteholders, a Senior Note Event of Default has occurred, and, as a result thereof, there has been an acceleration of the Senior Note Obligations, and (iii) the Junior Noteholders, a Junior Note Event of Default has occurred, and, as a result thereof, there has been an acceleration of the Junior Note Obligations. "Account Debtor" has the meaning specified in Article 9 of the UCC. "Accounts" means all "accounts" as defined in Article 9 of the UCC. "Actionable Default" means, with respect to (i) the Bank Credit Parties, a Credit Agreement Event of Default has occurred and is continuing, (ii) the Senior Noteholders, a Senior Note Event of Default has occurred and is continuing, and (iii) the Junior Noteholders, a Junior Note Event of Default has occurred and is continuing. "Additional Grantor" has the meaning assigned to such term in Article 13. "Administrative Agent" means the Person acting as administrative agent under the Credit Agreement or any successor thereto. "Affiliate" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. "Applicable Date" means (i) in the case of any Grantor (other than an Additional Grantor), the date hereof, and (ii) in the case of any Additional Grantor, the date of the Supplement executed and delivered by such Additional Grantor. "Applicable Representative" means: (i) at any time during the period during which the Credit Agreement and the Senior Indenture are in effect, (x) if there are Loans or Letters of Credit outstanding at such time under the Credit Agreement, either the Administrative Agent acting with the consent of the Senior Indenture Trustee or the Senior Indenture Trustee acting individually, and (y) if there are no Loans or Letters of Credit outstanding at such time under the Credit Agreement, the Senior Indenture Trustee; (ii) at any time during the period during which the Credit Agreement is in effect (whether or not there are Loans or Letters of Credit outstanding thereunder at such time) but the Senior Note Indenture is not in effect, the Administrative Agent; (iii) at any time during the period during which the Senior Note Indenture is in effect but the Credit Agreement is not in effect, the Senior Indenture Trustee; and (iv) at any time thereafter, the Junior Indenture Trustee. "Approved Securities Intermediary" means a Securities Intermediary or commodity intermediary selected or approved by the Applicable Representative and with respect to which a Grantor has delivered to the Collateral Agent an executed Control Account Letter. "Arch" has the meaning set forth in the preamble to this Security Agreement. "AWHI" has the meaning set forth in the preamble to this Security Agreement. "Bank Credit Party" means the Administrative Agent, a Lender or the Issuing Bank, as the case may be. -2- "Bankruptcy Code" has the meaning assigned to such term in Recital I. "Bankruptcy Court" has the meaning assigned to such term in Recital II. "Blockage Notice" has the meaning specified in each Blocked Account Letter. "Blocked Account" means a Deposit Account maintained by any Grantor with a Blocked Account Bank which account is the subject of an effective Blocked Account Letter, and includes all monies on deposit therein and all certificates and instruments, if any, representing or evidencing such Blocked Account. "Blocked Account Bank" means a financial institution selected or approved by the Applicable Representative and with respect to which a Grantor has delivered to the Collateral Agent an executed Blocked Account Letter. "Blocked Account Letter" means a letter agreement, substantially in the form of Exhibit B (with such changes thereto as may be agreed to by the Collateral Agent with the written consent of the Applicable Representative), executed by the relevant Grantor and the Collateral Agent and acknowledged and agreed to by the relevant Blocked Account Bank. "Business Day" means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are required or authorized by law or other governmental action to close, and (ii) a day of the year on which the Collateral Agent is not required or authorized to close. "Capital Lease" means, with respect to any Person, any lease of property by such Person as lessee which would be accounted for as a capital lease on a balance sheet of such Person prepared in conformity with GAAP. "Cash Collateral Account" means any Deposit Account or Securities Account established by the Collateral Agent pursuant to the Collateral Agent Agreement in which cash and/or Cash Equivalents may from time to time be on deposit or held therein as provided herein. "Cash Equivalents" means (a) securities issued or fully guaranteed or insured by the United States government or any agency thereof; (b) certificates of deposit, eurodollar time deposits, overnight bank deposits and bankers' acceptances of any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations) which, at the time of acquisition, are rated at least "A-1" by Standard & Poor's Rating Services ("S&P") or "P-1" by Moody's Investors Services, Inc. ("Moody's"); (c) commercial paper of an issuer rated at least "A-1" by S&P or "P-1" by Moody's; and (d) shares of any money market fund that (i) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (a) through (c) above, (ii) has net assets of not less than $500,000,000, and (iii) is rated at least "A-1" by S&P or "P-1" by Moody's; provided, however, that the maturities of all obligations of the type specified in clauses (a) through (c) above shall not exceed 180 days. "Chattel Paper" means all "chattel paper" as defined in Article 9 of the UCC. -3- "Claim Proceeds" means, with respect to any Commercial Tort Claim or any Collateral Support or Supporting Obligation relating thereto, all Proceeds thereof, including all insurance proceeds and other amounts and recoveries resulting or arising from the settlement or other resolution thereof, in each case regardless of whether characterized as a "commercial tort claim" under Article 9 of the UCC or "proceeds" under the UCC. "Code" means the Internal Revenue Code of 1986. "Collateral" has the meaning assigned to such term in Section 1.3(a). "Collateral Account" has the meaning assigned to such term in Section 5.2 of the Collateral Agent Agreement. "Collateral Agent" means The Bank of New York, in its capacity as collateral agent or any successor thereto. "Collateral Agent Agreement" means the Collateral Agent Agreement, dated as of May 29, 2002, among the Grantors, the Administrative Agent, the Indenture Trustees and the Collateral Agent. "Collateral Agreement Collateral" has the meaning assigned to such term in Section 5.3(a) of the Collateral Agent Agreement. "Collateral Records" means all books, instruments, certificates, Records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals and other documents, and all computer software, computer printouts, tapes, disks and related data processing software and similar items, in each case that at any time represent, cover or otherwise evidence, or contain information relating to, any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon. "Collateral Support" means all property (real or personal) assigned, hypothecated or otherwise securing any of the Collateral, and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property. "Commercial Tort Claims" means (i) all "commercial tort claims" as defined in Article 9 of the UCC and (ii) all Claim Proceeds with respect to any of the foregoing; including all claims described on Schedule 3.8. "Communications Act" means the Federal Communications Act of 1934. "Concentration Account" means a Deposit Account of the Grantors with the bank or financial institution acceptable to the Applicable Representative, which shall be a Blocked Account. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms "Controlling" and "Controlled" have meanings correlative thereto. "Control Account" means a Securities Account or commodity account -4- maintained by any Grantor with an Approved Securities Intermediary which account is the subject of an effective Control Account Letter, and includes all Financial Assets held therein and all certificates and instruments, if any, representing or evidencing the Financial Assets held therein. "Control Account Letter" means a letter agreement, substantially in the form of Exhibit C (with such changes thereto as may be agreed to by the Collateral Agent with the written consent of the Applicable Representative), executed by any Grantor and the Collateral Agent and acknowledged and agreed to by the relevant Approved Securities Intermediary. "Copyright License" means any written agreement, now or hereafter in effect, granting any right to any third party under any Copyright now or hereafter owned or held by or on behalf of any Grantor or which any Grantor otherwise has the right to license, or granting any right to any Grantor under any Copyright, including the grant of rights to copy, publicly perform, create derivative works, manufacture, distribute, exploit and sell materials derived from any Copyright, now or hereafter owned by any third party, and all rights of any Grantor under any such agreement, including each agreement described on Schedule 3.7. "Copyrights" means all of the following: (i) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, and (ii) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office or any similar offices in the United States or any other country, including those described on Schedule 3.7. "Credit Agreement" means one or more debt facilities or agreements, in each case with banks or other institutional lenders providing for revolving credit loans and the issuance of letters of credit in an amount not to exceed $35,000,000 to be used on a revolving credit basis for working capital purposes, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, restated or refinanced (including any agreement to extend the maturity thereof and adding additional borrowers or guarantors) in whole or in part from time to time under the same or any other agent, lender or group of lenders. "Credit Agreement Event of Default" shall have the meaning attributed to the term "Event of Default" set forth in the Credit Agreement. "Credit Agreement Obligations" means, as of any date, the Obligations, to the extent owing to the Bank Credit Parties under the Loan Documents. Notwithstanding anything in this Security Agreement to the contrary, for purposes of this Security Agreement and the Collateral Agent Agreement, the Credit Agreement Obligations in respect of the principal amount of Loans and all reimbursement obligations in respect of Letters of Credit shall not exceed $35,000,000. "Default" means an Actionable Default or an Acceleration Default. "Deposit Accounts" means all "deposit accounts" as defined in Article 9 of the UCC, including all such accounts described on Schedule 3.4. "Documents" means all "documents" as defined in Article 9 of the UCC. "Domestic Subsidiary" means, as to the Parent, a Subsidiary organized under the -5- laws of the United States of America, any state thereof or the District of Columbia. "Equipment" means (i) all "equipment" as defined in Article 9 of the UCC, (ii) all machinery, manufacturing equipment, data processing equipment, computers, office equipment, furnishings, furniture, appliances, fixtures and tools, in each case, regardless of whether characterized as "equipment" under the UCC, and (iii) all accessions or additions to any of the foregoing, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefor, wherever located, now or hereafter existing. "Excluded Property" means, with respect to any Grantor, (i) any outstanding Stock in a Non-Material Foreign Subsidiary of the Parent which is a "controlled foreign corporation" as defined in the Code in excess of 65% of the voting power of all classes of Stock of such corporation entitled to vote and (ii) for so long as a PageNet Foreign Subsidiary is not a Subsidiary pursuant to the definition thereof, any outstanding Stock in such PageNet Foreign Subsidiary. "FCC" means the United States Federal Communications Commission. "FCC Licenses" means all of the licenses granted to the Grantors by the FCC. "Financial Assets" means all "financial assets" as defined in Article 8 of the UCC. "Foreign Pledge Agreements" means, collectively, each pledge agreement executed and delivered to grant a security interest in the Stock of a Foreign Subsidiary of the Parent, other than Excluded Property, each in form and substance satisfactory to the Collateral Agent. "Foreign Subsidiary" means, as to the Parent, a subsidiary other than a Domestic Subsidiary. "GAAP" means generally accepted accounting principles in effect in the United States of America as of the date hereof unless another date is specified herein. "General Intangibles" means (i) all "general intangibles" as defined in Article 9 of the UCC and (ii) all choses in action and causes of action, all indemnification claims, all goodwill, all Hedging Contracts, all tax refunds, all licenses, permits, concessions, franchises and authorizations, all Intellectual Property, all Payment Intangibles and all Software, in each case, regardless of whether characterized as a "general intangible" under the UCC. "Goods" means (i) all "goods" as defined in Article 9 of the UCC and (ii) all Equipment and Inventory and any computer program embedded in goods and any supporting information provided in connection with such program, to the extent (a) such program is associated with such goods in such a manner that it is customarily considered part of such goods or (b) by becoming the owner of such goods, a Person acquires a right to use the program in connection with such goods, in each case, regardless of whether characterized as a "good" under the UCC. "Governmental Authority" means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, -6- legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. "Grantor" and "Grantors" means, collectively, AWHI and the Guarantors. "Guarantee" means each guarantee by the Parent or any of the Subsidiaries of any Secured Debt Document. "Guarantor" and "Guarantors" means, collectively, the Parent and each of the Subsidiaries other than AWHI. "Guaranty Obligation" means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the purpose or intent of such Person in incurring the Guaranty Obligation is to provide assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof, including: (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business) or co-making of Indebtedness of another Person; and (b) any liability of such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another Person, (iii) to make take-or-pay or similar payments, if required, regardless of non-performance by any other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, or (v) to supply funds to or in any other manner invest in such other Person (including to pay for property or services irrespective of whether such property is received or such services are rendered), if in the case of any agreement described under subclause (i), (ii), (iii), (iv) or (v) of clause (b) of this sentence the primary purpose or intent thereof is as described in the preceding sentence. The amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so guaranteed or otherwise supported. "Hedging Contracts" means all Interest Rate Contracts, foreign exchange contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or option agreements, other commodity price hedging arrangements, and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices. "Indebtedness" of any Person means without duplication: (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments or which bear interest; (c) all reimbursement and all obligations with respect to letters of credit, bankers' acceptances, surety bonds and performance bonds, whether or not matured; (d) all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business; (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (f) all obligations of such Person under Capital Leases and the present value of future rental payments under all synthetic leases; (g) all Guaranty Obligations of such Person; (h) all obligations of such Person to purchase, redeem, retire, -7- defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (i) all payments that such Person would have to make in the event of an early termination on the date Indebtedness of such Person is being determined in respect of Hedging Contracts of such Person; and (j) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including Accounts (as defined in the Security Agreement) and general intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. "Indemnitee" means the Collateral Agent and its Related Parties. "Indenture Trustees" means, collectively, the Senior Indenture Trustee and the Junior Indenture Trustee. "Indentures" means, collectively, the Senior Indenture and the Junior Indenture. "Instruments" means all "instruments" as defined in Article 9 of the UCC. "Insurance" means all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent or any other Secured Party is the loss payee thereof). "Intellectual Property" means all intellectual and similar property of any Grantor of every kind and nature, including inventions, designs, Patents, Copyrights, Trademarks, Licenses, domain names, Trade Secrets, confidential or proprietary technical and business information, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing. "Interest Rate Contracts" means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance. "Inventory" means (i) all "inventory" as defined in Article 9 of the UCC and (ii) all goods held for sale or lease or to be furnished under contracts of service or so leased or furnished, all raw materials, work in process, finished goods and materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in any Grantor's business, all goods which are returned to or repossessed by or on behalf of any Grantor, and all computer programs embedded in any goods, and all accessions thereto and products thereof, in each case, regardless of whether characterized as "inventory" under the UCC. "Investment" means, with respect to any Person: (a) any purchase or other acquisition by that Person of (i) any security issued by, (ii) a beneficial interest in any security issued by, or (iii) any other equity ownership interest in, any other Person; (b) any purchase by that Person of all or a significant part of the assets of a business conducted by another Person; (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary course of business as presently conducted), or capital contribution by that Person to any other Person, including all Indebtedness of any other Person to that Person arising from a sale of property by that Person other than in the ordinary course of its business; and (d) any guarantee incurred by that Person in respect of Indebtedness of any other Person. -8- "Investment Property" means all "investment property" as defined in Article 9 of the UCC. "Issuing Bank" means in the event that the Credit Agreement provides for a letter of credit subfacility, the Person acting as the letter of credit issuing bank under the Credit Agreement. "Junior Indenture" means the Indenture, dated as of May 29, 2002, among AWHI, as issuer, the Parent and each of the Subsidiaries (other than AWHI), as guarantors, and the Junior Indenture Trustee pursuant to which AWHI issued the Junior Notes. "Junior Indenture Trustee" means The Bank of New York, in its capacity as trustee under the Junior Indenture or any successor. "Junior Note Event of Default" shall have the meaning attributed to the term "Event of Default" in the Junior Indenture. "Junior Note Obligations" means, as of any date, the Obligations, to the extent owing to the Junior Indenture Trustee and the Junior Noteholders under the Junior Indenture and the Junior Notes (and the guarantees thereof). "Junior Noteholder" means a holder of Junior Notes. "Junior Notes" means the 12% Subordinated Secured Compounding Notes due 2009 issued and outstanding under the Junior Indenture. "Leased Real Property" has the meaning assigned to such term in Section 3.9(a)(ii)(A). "Lenders" means, collectively, (i) the Lenders (as such term is defined in the Credit Agreement) party from time to time to the Credit Agreement, (ii) the Issuing Bank and (iii) each counterparty to a Secured Hedging Contract. "Letter of Credit" means, in the event that the Credit Agreement provides for a letter of credit subfacility, a letter of credit issued by the Issuing Bank under the Credit Agreement. "Letter of Credit Rights" means all "letter-of-credit rights" as defined in Article 9 of the UCC and (ii) all rights, title and interests of each Grantor to any letter of credit, in each case regardless of whether characterized as a "letter-of-credit right" under the UCC. "License" means any Copyright License, Patent License, Trademark License, Trade Secret License or other license or sublicense to which any Grantor is a party. "Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or other obligation, including any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the UCC or comparable law of any jurisdiction naming the owner of the asset to which such Lien -9- relates as debtor (other than those financing statements filed soley for precautionary reasons in connection with operating leases). "Loan Documents" means the Credit Agreement, the promissory notes issued thereunder, any guarantees thereof, the documentation in respect of each Letter of Credit and the Security Documents relating to the Loans. "Loans" means the loans made under the Credit Agreement. "Majority Creditors" means: (i) at any time during which the Credit Agreement and/or the Senior Note Indenture are in effect, Lenders and Senior Noteholders representing more than 50% of the sum at such time of (A) the commitments under the Credit Agreement (or, if such commitments do not then exist, of the sum of (x) the aggregate outstanding principal balance of the Loans, plus (y) the aggregate amount available to be drawn (whether or not the conditions therefor have been or may be satisfied) under all Letters of Credit, plus (z) the aggregate outstanding principal balance of all reimbursement obligations of AWHI with respect to Letters of Credit), plus (B) the aggregate outstanding principal amount of Senior Notes which are Outstanding (as defined in the Senior Indenture); and (ii) at all times thereafter, Junior Noteholders representing more than 50% of the sum at such time of the aggregate outstanding principal amount of Junior Notes which are Outstanding (as defined in the Junior Indenture). "Material Adverse Effect" means a material adverse effect on any of (a) the condition (financial or otherwise), business, performance, prospects (as such prospects relate to the Parent's and the Subsidiaries' ability to repay the Obligations), operations or properties of any of the Parent and the Subsidiaries, taken as a whole, (b) the legality, validity or enforceability of any Secured Debt Document; (c) the perfection or priority of the Liens granted pursuant to the Security Documents; (d) the ability of the Parent or any of the Subsidiaries to repay the Obligations or perform its respective obligations under the Secured Debt Documents; or (e) the ability of the Administrative Agent, the Indenture Trustees or the Collateral Agent to enforce the rights and remedies under the Secured Debt Documents. "Material Foreign Subsidiary" means, as to any Person, a Foreign Subsidiary of such Person which, as of the last day of the most recently completed fiscal quarter, satisfied any one or more of the following three tests: (i) the amount of the Investments in such Foreign Subsidiary made by the Parent and the Subsidiaries on or after the date hereof exceeds $5,000,000 in the aggregate, (ii) the Parent's and the Subsidiaries' (other than such Foreign Subsidiary's) proportionate share (after intercompany eliminations) consisting of the property of such Foreign Subsidiary exceeds 2% of consolidated total assets of the Parent and the Subsidiaries or (iii) the Parent's and the Subsidiaries' (other than such Foreign Subsidiary's) equity in the income (not to include losses) from continuing operations before income taxes, extraordinary items and the cumulative effect of a change in accounting principles of such Foreign Subsidiary exceeds 2% of the income (not to include losses) from continuing operations before income taxes, extraordinary items and the cumulative effect of a change in accounting principles of the Parent and the Subsidiaries determined on a consolidated basis in accordance with GAAP. -10- "Material Intellectual Property" means Intellectual Property owned by or leased to a Grantor which is material to its business. "Mellon Account" means the Deposit Account(s) of the Grantors with Mellon Bank, N.A., each of which shall be a Blocked Account or, if Mellon Bank, N.A. no longer has such Deposit Account(s), the Deposit Account(s) of the Grantors into which all of their bank accounts are swept at a financial institution reasonably acceptable to the Applicable Representative, each of which shall be a Blocked Account. "Mortgage" means a mortgage, deed of trust, assignment of leases and rents or other security document granting a Lien on any Mortgaged Property to secure the Obligations. Each Mortgage shall be satisfactory in form and substance to the Applicable Representative. "Mortgaged Property" means, initially, (i) each parcel of Owned Real Property and the improvements thereto owned by any Grantor and identified on Schedule 3.9(a)(i), and includes each other parcel of Owned Real Property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 3.9(b)(i) and (ii) each Real Property Lease identified on Schedule 3.9(a)(ii)(D), and includes each other Real Property Lease with respect to which a Mortgage is granted pursuant to Section 3.9(b)(ii). "Mortgage Opinion of Counsel" means an Opinion of Counsel with respect to a Mortgage, which counsel shall be licensed to practice in the State in which the Mortgaged Property is located, stating that: (i) such Mortgage is in proper form under the laws of the applicable State to be accepted for recording by the applicable recording office (the "Recording Office"), (ii) such Mortgage is enforceable against the applicable Grantor in accordance with its terms, (iii) upon due recordation of such Mortgage in such Recording Office, such Mortgage will create, as security for the payment and performance of the Obligations secured thereby, a valid, perfected and enforceable Lien of record on the entire interest of the applicable Grantor in such Mortgaged Property (including fixtures to the extent such fixtures constitute Real Property), (iv) such Mortgage creates valid security interests in all of the personal property covered thereby to the extent such security interests can be created under the Uniform Commercial Code of such State and, upon indexing of the applicable UCC financing statement with such Recording Office and the Office of the Secretary of the State of the State of incorporation or formation of such Grantor and recording of such Mortgage with the Recorder's Office, such Mortgage and such financing statements will be effective to perfect the security interests created thereby in the Mortgaged Property described therein (including any exhibits thereto) to the extent security interests in the Mortgaged Property covered thereby may be perfected by the filing or recording with said offices under the Uniform Commercial Code of such State, (v) upon the occurrence of a Default, the Collateral Agent will have the right to take the actions specified in such Mortgage, (vi) in order to enforce such Mortgage, neither the Collateral Agent, any Representative nor any Secured Party need qualify to do business in such State and the Collateral Agent has the power, without naming any Representative or any Secured Party in any applicable legal proceeding to exercise its remedies under the Security Documents for the realization on such Mortgaged Property in its own name as Collateral Agent, (vii) all rights of redemption of the applicable Grantor shall be extinguished upon the consummation of the sale of the such Mortgaged Property pursuant to any remedial provisions provided for in such Mortgage as a matter of law or otherwise, (viii) neither the Collateral Agent, any Representative nor any Secured Party will be subject to taxation by such State or any political subdivision thereof solely by reason of or in connection with the transactions contemplated by the Secured Debt Documents and (ix) as to such other customary matters. "Non-Material Foreign Subsidiary" means, as to any Person at any time of -11- determination, a Foreign Subsidiary of such Person other than a Material Foreign Subsidiary. "Noteholders" means, collectively, Senior Noteholders and Junior Noteholders. "Notes" means, collectively, Senior Notes and Junior Notes. "Notice of Acceleration Default" means a written certification to the Collateral Agent and AWHI (i) from the Administrative Agent, certifying that an Acceleration Default has occurred with respect to the Credit Agreement Obligations, (ii) from the Senior Indenture Trustee certifying that an Acceleration Default has occurred with respect to Senior Note Obligations, or (iii) from the Junior Indenture Trustee certifying that an Acceleration Default has occurred with respect to Junior Note Obligations. "Notice of Actionable Default" means a written certification to the Collateral Agent and AWHI (i) from the Administrative Agent, certifying that an Actionable Default has occurred with respect to the Credit Agreement Obligations, (ii) from the Senior Indenture Trustee certifying that an Actionable Default has occurred with respect to Senior Note Obligations, or (iii) from the Junior Indenture Trustee certifying that an Actionable Default has occurred with respect to Junior Note Obligations. "Notice of Default" means a Notice of Acceleration Default or a Notice of Actionable Default. "Obligations" means (a) the due and punctual payment of (i) principal and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) owing by the Grantors under the Secured Debt Documents (including Guarantees thereof), when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations, including fees, commissions, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Grantors to the Secured Parties, or that are otherwise payable to any Secured Party, under the Secured Debt Documents (including Guarantees thereof), (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Grantors under or pursuant to the Secured Debt Documents (including Guarantees thereof), and (c) unless otherwise agreed upon in writing by the applicable Person party thereto, all obligations of AWHI, monetary or otherwise, under each Secured Hedging Contract. "Opinion of Counsel" means a written opinion of counsel, who may (unless otherwise required by the Trust Indenture Act) be counsel for a Grantor and who may rely as to factual matters on a certificate signed by the Chairman of the Board, the President or a Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of such Grantor delivered to the Collateral Agent, and who shall be reasonably acceptable to the Applicable Representative. "Owned Real Property" has the meaning assigned to such term in Section 3.9(a)(i)(A). -12- "PageNet Foreign Subsidiaries" means, collectively, PageNet Argentina S.A., Paging Network International N.V., PageNet Chile S.A. and Paging Network (UK), Ltd. "Parent" has the meaning set forth in the preamble to this Security Agreement. "Patent License" means any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention on which a Patent, now or hereafter owned or held by or on behalf of any Grantor or which any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell any invention on which a Patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement, including each agreement described on Schedule 3.7. "Patents" means all of the following: (i) all letters patent of the United States or any other country, all registrations and recordings thereof and all applications for letters patent of the United States or any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in the United States or any other country, including those described on Schedule 3.7, and (ii) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein. "Payment Intangibles" means all "payment intangibles" as defined in Article 9 of the UCC. "Permitted Liens" means Liens expressly permitted by each of the Credit Agreement and each of the Indentures. "Person" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. "Plan" has the meaning assigned to such term in Recital III. "Pledged Collateral" means, collectively, the Pledged Notes, the Pledged Stock, the Pledged Partnership Interests, the Pledged LLC Interests, any other Investment Property of any Grantor, all certificates or other instruments representing any of the foregoing, all Security Entitlements of any Grantor in respect of any of the foregoing, all dividends, interest distributions, cash, warrants, rights, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing. "Pledged LLC Interests" means all of any Grantor's right, title and interest as a member of any limited liability companies and all of such Grantor's right, title and interest in, to and under any limited liability company agreement to which it is a party, including all interests in the limited liability companies listed on Schedule 3.4. "Pledged Notes" means all right, title and interest of any Grantor in the Instruments evidencing all Indebtedness owed to such Grantor, including all Indebtedness described on Schedule 3.4, issued by the obligors named therein, and all interest, cash, Instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Indebtedness. -13- "Pledged Partnership Interests" means all of any Grantor's right, title and interest as a limited and/or general partner in all partnerships and all of such Grantor's right, title and interest in, to and under any partnership agreements to which it is a party, including all partnership interests listed on Schedule 3.4. "Pledged Stock" means the shares of Capital Stock, Stock and Stock Equivalents owned by each Grantor, including all shares of capital stock listed on Schedule 3.4. "Proceeds" means (i) all "proceeds" as defined in Article 9 of the UCC, (ii) payments or distributions made with respect to any Pledged Collateral or Investment Property, (iii) any payment received from any insurer or other Person or entity as a result of the destruction, loss, theft, damage or other involuntary conversion of whatever nature of any asset or property that constitutes the Collateral, and (iv) whatever is receivable or received when any of the Collateral or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary, including any claim of any Grantor against any third party for (and the right to sue and recover for and the rights to damages or profits due or accrued arising out of or in connection with) (a) past, present or future infringement of any Patent now or hereafter owned or held by or on behalf of any Grantor, or licensed under a Patent License, (b) past, present or future infringement or dilution of any Trademark now or hereafter owned or held by or on behalf of any Grantor, or licensed under a Trademark License, or injury to the goodwill associated with or symbolized by any Trademark now or hereafter owned or held by or on behalf of any Grantor, (c) past, present or future infringement of any Copyright now or hereafter owned or held by or on behalf of any Grantor, or licensed under a Copyright License, (d) past, present or future infringement of any Trade Secret now or hereafter owned or held by or on behalf of any Grantor, or licensed under a Trade Secret License, and (e) past, present or future breach of any License, in each case, regardless of whether characterized as "proceeds" under the UCC. "Real Property" means all of those plots, pieces or parcels of land now owned, leased or hereafter acquired or leased by any Grantor or any of its subsidiaries (the "Land"), together with the right, title and interest of such Grantor or such subsidiaries, if any, in and to the streets, the land lying in the bed of any streets, roads or avenues, opened or proposed, in front of, the air space and development rights pertaining to the Land and the right to use such air space and development rights, all rights of way, privileges, liberties, tenements, hereditaments and appurtenances belonging or in any way appertaining thereto, all fixtures, all easements now or hereafter benefiting the Land and all royalties and rights appertaining to the use and enjoyment of the Land, including all alley, vault, drainage, mineral, water, oil and gas rights, together with all of the buildings and other improvements now or hereafter erected on the Land, and any fixtures appurtenant thereto. "Real Property Lease" has the meaning assigned to such term in Section 3.9(a)(ii)(B). "Receivables" means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including all such rights constituting or evidenced by any Account, Chattel Paper, Instrument or other document, General Intangible or Investment Property, together with all of the applicable Grantor's rights, if any, in any goods or other property giving rise to such right to payment, and all Collateral Support and Supporting Obligations related thereto and all Receivables Records. -14- "Receivables Records" means (i) all originals of all documents, instruments or other writings or electronic records or other Records evidencing any Receivable, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to any Receivable, including all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to any Receivable, whether in the possession or under the control of the applicable Grantor or any computer bureau or agent from time to time acting for such Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or secured parties, and certificates, acknowledgments, or other writings, including lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto, and (v) all other written forms of information related in any way to the foregoing or any Receivable. "Record" means a "record" as defined in Article 9 of the UCC. "Related Parties" means, with respect to any specified Person, such Person's Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person's Affiliates. "Secured Debt Documents" means the Security Documents, the Loan Documents, the Indentures, the Notes and the Guarantees thereof. "Secured Hedging Contract" means each Hedging Contract entered into by AWHI with a Person that, at the time of the entry thereof, was a Lender (or an Affiliate thereof). "Secured Parties" means (i) the Bank Credit Parties, (ii) the Indenture Trustees, (iii) the Noteholders, (iv) the beneficiaries of each indemnification obligation undertaken by a Grantor under any Senior Debt Document, (v) unless otherwise agreed upon in writing by it, each counterparty to a Secured Hedging Contract, and (vi) the successors and assigns of each of the foregoing. "Securities Accounts" means all "securities accounts" as defined in Article 8 of the UCC, including all such accounts described on Schedule 3.4. "Securities Intermediary" has the meaning specified in Article 8 of the UCC. "Security" means any Stock, Stock Equivalent, voting trust certificate, bond, debenture, note or other evidence of Indebtedness, whether secured, unsecured, convertible or subordinated, or any certificate of interest, share or participation in, or any temporary or interim certificate for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, but shall not include any evidence of the Obligations. "Security Documents" means, collectively, all of the agreements, instruments, documents, pledges or filings executed in connection with granting, or that otherwise evidence, the Lien of the Collateral Agent in the Collateral, including, without limitation, this Security Agreement, the Collateral Agent Agreement, the Foreign Pledge Agreements and each Mortgage creating a Lien that secures the Loan Documents, the Notes and the guarantees thereof, and any other document, agreement, instrument, pledge or filing executed in connection with the granting, or that otherwise evidence, the Lien of the Collateral Agent on the Collateral. -15- "Security Entitlement" means a "security entitlement" as defined in Article 8 of the UCC. "Security Interest" has the meaning assigned to such term in Section 1.3(a). "Senior Indenture" means the Indenture, dated as of May 29, 2002, among AWHI, as issuer, the Parent and each of the Subsidiaries (other than AWHI), as guarantors, and the Senior Indenture Trustee pursuant to which AWHI issued the Senior Notes. "Senior Indenture Trustee" means The Bank of New York, in its capacity as trustee under the Senior Indenture or any successor. "Senior Note Event of Default" shall have the meaning attributed to the term "Event of Default" in the Senior Indenture. "Senior Note Obligations" means, as of any date, the Obligations, to the extent owing to the Senior Indenture Trustee and the Senior Noteholders under the Senior Indenture and the Senior Notes (and the guarantees thereof). "Senior Noteholder" means a holder of Senior Notes. "Senior Notes" means the 10% Senior Subordinated Secured Notes due 2007 issued and outstanding under the Senior Indenture. "Software" means all "software" as defined in Article 9 of the UCC. "Stock" means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or non-voting. "Stock Equivalents" means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable. "subsidiary" means, with respect to any Person (the "parent") at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, trust, joint venture, association, company, partnership or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power is or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent or one or more subsidiaries of the parent. "Subsidiary" means any subsidiary of the Parent other than (i) any subsidiary of Paging Network Canadian Holdings, Inc. that is organized under the laws of Canada or any province thereof and that is in existence on the date hereof, (ii) for the period from the date hereof through the date which is 367 days after the later of (x) June 1, 2002 and (y) the termination of the Asset Acquisition -16- Agreement, dated as of January 24, 2001, by and among Unrestricted Subsidiary Funding Company, the Parent, PageNet SMR Sub, Inc., and AWI Spectrum Co., LLC, AWI Spectrum Co., LLC and AWI Spectrum Co. Holdings, Inc. shall not be deemed to be Subsidiaries for purposes of this Security Agreement; provided that on and after such date, each of AWI Spectrum Co., LLC and AWI Spectrum Co. Holdings, Inc. shall be deemed to be Subsidiaries for purposes of this Security Agreement, and (iii) each PageNet Foreign Subsidiary; provided that if such PageNet Foreign Subsidiary is not dissolved or merged into a Grantor on or before the first anniversary of the date hereof and the Collateral Agent shall not have received a certificate of the applicable Governmental Authority (with a certified translation thereof if such certificate is not in English) evidencing the dissolution thereof or the merger thereof into a Grantor, such PageNet Foreign Subsidiary shall thereafter be deemed to be Subsidiaries for purposes of this Security Agreement. "Supplement" means a supplement hereto, substantially in the form of Exhibit A. "Supporting Obligation" means (i) all "supporting obligations" as defined in Article 9 of the UCC and (ii) all Guarantees and other secondary obligations supporting any of the Collateral, in each case regardless of whether characterized as a "supporting obligation" under the UCC. "Trade Secret Licenses" means any written agreement, now or hereafter in effect, granting to any third party any right to use any Trade Secrets now or hereafter owned or held by or on behalf of any Grantor or which such Grantor otherwise has the right to license, or granting to any Grantor any right to use any Trade Secrets now or hereafter owned by any third party, and all rights of any Grantor under any such agreement. "Trade Secrets" means all trade secrets and all other confidential or proprietary information and know-how now or hereafter owned or used in, or contemplated at any time for use in, the business of any Grantor (all of the foregoing being collectively called a "Trade Secret"), whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating or referring in any way to such Trade Secret, the right to sue for any past, present and future infringement of any Trade Secret, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages and proceeds of suit. "Trademark License" means any written agreement, now or hereafter in effect, granting to any third party any right to use any Trademark now or hereafter owned or held by or on behalf of any Grantor or which such Grantor otherwise has the right to license, or granting to any Grantor any right to use any Trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement, including each agreement described on Schedule 3.7. "Trademarks" means all of the following: (i) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in the United States or any other country, and all extensions or renewals thereof, including those described on Schedule 3.7, (ii) all goodwill associated therewith or symbolized by any of the foregoing and (iii) all other assets, rights and interests that uniquely reflect or embody such goodwill. -17- "UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York or, when the context implies, the Uniform Commercial Code as in effect from time to time in any other applicable jurisdiction. Section 1.2 Interpretation; References to the UCC (a) Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified, (ii) any definition of or reference to any law shall be construed as referring to such law as from time to time amended and any successor thereto and the rules and regulations promulgated from time to time thereunder, (iii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iv) the words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Security Agreement in its entirety and not to any particular provision hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Security Agreement, (vi) all references to a Schedule to this Security Agreement shall refer to such Schedule hereto or to a Supplement, as applicable and (vii) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. (b) References to the UCC. All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC. Section 1.3 Grant of Security (a) Grant. As security for the payment or performance, as applicable, in full of the Obligations, each Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates and transfers to the Collateral Agent (and its successors and assigns), for the benefit of the Secured Parties, and hereby grants to the Collateral Agent (and its successors and assigns), for the benefit of the Secured Parties, a security interest (the "Security Interest") in, all personal property and fixtures of such Grantor, including all of such Grantor's right, title and interest in, to and under the following, in each case whether now owned or existing or hereafter acquired or arising and wherever located (all of which being hereinafter collectively referred to as the "Collateral"): (i) all Accounts; (ii) all Cash Collateral Accounts, Blocked Accounts and other deposit accounts; (iii) all Commercial Tort Claims; (iv) all Documents, Instruments and Chattel Paper; (v) all Equipment; -18- (vi) all General Intangibles; (vii) all Goods; (viii) all Insurance; (ix) all Intellectual Property; (x) all Inventory; (xi) all Investment Property, including all Control Accounts; (xii) all Letter of Credit Rights; (xiii) all Proceeds of FCC Licenses; (xiv) all Owned Real Property; (xv) all Pledged Collateral; (xvi) all Receivables and Receivables Records; (xvii) all other goods and personal property of such Grantor, whether tangible or intangible, wherever located, including money and letters of credit; (xviii) to the extent not otherwise included in clauses (i) through (xvii) of this Section, all Collateral Records, Collateral Support and Supporting Obligations in respect of any of the foregoing, (xix) to the extent not otherwise included in clauses (i) through (xviii) of this Section, all other property in which a security interest may be granted under the UCC or which may be delivered to and held by the Collateral Agent pursuant to the terms hereof (including the Collateral Account and all funds and other property from time to time therein or credited thereto), and (xx) to the extent not otherwise included in clauses (i) through (xix) of this Section, all Proceeds, products, substitutions, accessions, rents and profits of or in respect of any of the foregoing. (b) Revisions to UCC. For the avoidance of doubt, it is expressly understood and agreed that, to the extent the UCC is revised after the date hereof such that the definition of any of the foregoing terms included in the description or definition of the Collateral is changed, the parties hereto desire that any property which is included in such changed definitions, but which would not otherwise be included in the Security Interest on the date hereof, nevertheless be included in the Security Interest upon the effective date of such revision. Notwithstanding the immediately preceding sentence, the Security Interest is intended to apply immediately on the date hereof to all of the Collateral to the fullest extent permitted by applicable law, regardless of whether any particular item of the Collateral was then subject to the UCC. -19- (c) Certain Limited Exclusions. Notwithstanding anything in this Section 1.3 to the contrary, in no event shall the Collateral include, and no Grantor shall be deemed to have granted a Security Interest in, (i) any right under any lease, license or other contract or agreement constituting a General Intangible, if the granting of a security interest therein or an assignment thereof would violate any enforceable provision of such lease, license or other contract or agreement, as applicable, subject, however, to the provisions of Section 9-406 of the UCC; provided that (A) each of the Grantors, jointly with the other Grantors and severally, hereby represents and warrants to the Collateral Agent and the other Secured Parties that such leases, licenses and other contracts and agreements, taken as a whole, are not material and (B) immediately upon such provision no longer being enforceable, the Collateral shall include, and the Grantors shall be deemed to have granted a Security Interest in, such right as if such provision had never been enforceable, (ii) any Excluded Property; provided that if any such property ceases to be Excluded Property, the security interest granted pursuant to Section 1.3(a) shall automatically and without further action attach to such property and become fully effective at that time, or (iii) any FCC Licenses to the extent that a security interest therein is prohibited by law; provided that (A) to the extent that such security interest at any time hereafter shall no longer be prohibited by law, such security interest shall automatically and without any further action attach and become fully effective at that time (giving effect to any retroactive effect to any change in applicable law or regulation) and (B) nothing in this clause (iii) shall affect the grant of the Security Interest in the Proceeds of FCC Licenses pursuant to Section 1.3(a)(xii). Section 1.4 Ranking of Obligations The Security Interest granted herein shall constitute (i) a first priority security interest and Lien securing the Credit Agreement Obligations, (ii) a second priority security interest and Lien securing the Senior Note Obligations, and (iii) a third priority security interest and Lien securing the Junior Note Obligations. All (i) Credit Agreement Obligations shall rank pari passu as to the Collateral and shall be secured equally and ratably without regard to the date or terms of issue of the instruments evidencing such Credit Agreement Obligations, (ii) Senior Note Obligations shall rank pari passu as to the Collateral and shall be secured equally and ratably without regard to the date or terms of issue of the instruments evidencing such Senior Note Obligations, and (iii) Junior Note Obligations shall rank pari passu as to the Collateral and shall be secured equally and ratably without regard to the date or terms of issue of the instruments evidencing such Junior Note Obligations. Section 1.5 Power of Attorney to AWHI Pursuant to Section 3.5(b) of the Collateral Agent Agreement, each Grantor (other than AWHI) has irrevocably constituted and appointed AWHI and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of such Grantor or in its own name, from time to time in AWHI's discretion, to take or omit taking any and all actions hereunder for the purpose of carrying out the terms of this Security Agreement and any of the other Security Documents, to receive and give all notices to be given by or received by such Grantor, to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes hereof and, without limiting the generality of the foregoing, has granted to AWHI the power and right on behalf of such Grantor, without assent by such Grantor, to bind such Grantor in all respects hereunder and under any of the other Security Documents, with the intent that all action taken by AWHI on behalf of such Grantor shall be binding upon and inure to the benefit of such Grantor as effectively as if such action were taken directly by such Grantor. Each such power of attorney is a power coupled with an interest and shall be irrevocable until all of the Obligations are paid in full in cash. -20- ARTICLE 2. SECURITY FOR OBLIGATIONS; NO ASSUMPTION OF LIABILITY Section 2.1 Security for Obligations Subject to Section, 1.4, this Security Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, or any similar provision of any other bankruptcy, insolvency, receivership or other similar law), of all Obligations with respect to each Grantor. Section 2.2 No Assumption of Liability Notwithstanding anything to the contrary herein, the Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. ARTICLE 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS Section 3.1 Generally (a) Representations and Warranties. Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that: (i) As of the Applicable Date, (A) such Grantor's chief executive office or its principal place of business is, and for the preceding four months has been, located at the office indicated on Schedule 3.1(a)(i), (B) such Grantor's jurisdiction of organization is the jurisdiction indicated on Schedule 3.1(a)(i), and (C) such Grantor's Federal Employer Identification Number and Company Organizational Number are as set forth on Schedule 3.1(a)(i). (ii) As of the Applicable Date, (A) such Grantor's full legal name is as set forth on Schedule 3.1(a)(ii) and (B) such Grantor has not done in the preceding five years, and does not do, business under any other name (including any trade name or fictitious business name), except for those names set forth on Schedule 3.1(a)(ii). (iii) Such Grantor has not within the five years preceding the Applicable Date become bound (whether as a result of merger or otherwise) as debtor under a security agreement entered into by another Person, which has not heretofore been terminated. (iv) As of the Applicable Date, (A) all of such Grantor's FCC Licenses are as listed on Schedule 3.1(a)(iv) and are valid and in full force and effect, except to the extent that any such invalidity or ineffectiveness would not have a Material Adverse Effect, (B) such Grantor is in compliance in all material respects with all terms required for the continued effectiveness of all such FCC Licenses, (C) there is no pending or threatened non-renewal, expiration, termination or revocation of any such FCC Licenses that could have a Material Adverse Effect, (D) no other material license, in addition to the FCC Licenses currently held by such Grantor, each of which is set forth on Schedule 3.1(a)(iv), is necessary to conduct its business as it is now conducted, (E) all FCC Licenses are renewable by their terms or in the ordinary course of business without the need to pay any amounts other than routine filing fees -21- and upon compliance with routine FCC renewal procedures, and (F) such material FCC Licenses will not be adversely affected by consummation of the transactions contemplated hereby. (v) Such Grantor has good and valid rights in, and title to, the Collateral with respect to which it has purported to grant a Security Interest, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such Collateral for its intended purposes, and except for Permitted Liens. (vi) Set forth on Schedule 3.1(a)(vi) hereto is a complete and accurate list showing, as of the Applicable Date, each Subsidiary, the number of shares of each class of Stock authorized (if applicable), the number outstanding on the Applicable Date and the number and percentage of the outstanding shares of each such class owned (directly or indirectly) by the Parent and the Subsidiaries (as applicable). No Stock of any Subsidiary is subject to any outstanding option, warrant, right of conversion or purchase or any similar right. All of the outstanding Stock of each Subsidiary owned (directly or indirectly) by the Parent has been validly issued, is fully paid and non-assessable and is owned by the Parent or a Subsidiary, free and clear of all Liens (other than the Lien in favor of the Secured Parties created pursuant to the Security Documents). Neither the Parent nor any such Subsidiary is a party to, or has knowledge of, any agreement restricting the transfer or hypothecation of any Stock of any such Subsidiary, other than the Security Documents. (vii) All actions and consents, including all filings, notices, registrations and recordings, necessary or desirable to create, perfect or ensure the first priority (subject only to Permitted Liens) of the Security Interest in the Collateral owned or held by it or on its behalf or for the exercise by the Collateral Agent or any other Secured Party of any voting or other rights provided for in this Security Agreement or the exercise of any remedies in respect of any such Collateral have been made or obtained, (A) except for (1) the filing of UCC financing statements naming such Grantor as "debtor" and the Collateral Agent as "secured party," or the making of other appropriate filings, registrations or recordings, containing a description of such Collateral in each applicable governmental, municipal or other office specified on Schedule 3.1(a)(vii) and (2) the filing, registration or recordation of this Security Agreement or other fully executed security agreements in the form hereof (or in such other form as shall be in all respects satisfactory to the Collateral Agent) and containing a description of all such Collateral consisting of Patents, Trademarks and Copyrights, together with all other necessary documents, in each applicable governmental registry or office, (B) except for any such Collateral as to which the representations and warranties in this Section 3.1(a)(vii) would not be true solely by virtue of such Collateral having been used or disposed of in a manner expressly permitted hereunder or under any other Secured Debt Document, and (C) except to the extent that such Security Interest may not be perfected by filing, registering, recording or taking any other action in the United States. (viii) It has not filed or consented to the filing of (A) any financing statement or analogous document under the UCC or any other applicable laws covering any such Collateral, (B) any assignment in which it assigns any such Collateral or any security agreement or similar instrument covering any such Collateral with the United States Patent and Trademark Office or the United States Copyright Office, or (C) any assignment in which it assigns any such Collateral or any security agreement or similar instrument covering any such Collateral with any foreign governmental, municipal or other office, in each case, which financing statement, analogous -22- document, assignment or other instrument, as applicable, is still in effect, except for Permitted Liens. (ix) The Security Interest in the Collateral owned or held by it or on its behalf (A) is effective to vest in the Collateral Agent, on behalf of the Secured Parties, the rights of the Collateral Agent in such Collateral as set forth herein and (B) does not violate Regulation T, U or X as of the Applicable Date. (x) No PageNet Foreign Subsidiary has any significant assets and its business is not material to the business of the Parent and the Subsidiaries taken as a whole. The Parent intends to dissolve each PageNet Foreign Subsidiary or merge the same into a Grantor as soon as reasonably practicable after the date hereof. (b) Covenants and Agreements. Each Grantor hereby covenants and agrees as follows: (i) It will promptly notify the Collateral Agent in writing of any change (A) in its legal name or in any trade name used to identify it in the conduct of its business or in the ownership of its properties, (B) in the location of its chief executive office, principal place of business, any office in which it maintains books or records relating to any of the Collateral owned or held by it or on its behalf or, except to the extent permitted by Section 3.1(b)(vii) or Section 3.2, any office or facility at which any such Collateral is located (including the establishment of any new office or facility), (C) in its identity or legal or organizational structure or its jurisdiction of formation, or (D) in its Federal Taxpayer Identification Number or Company Organization Number. It agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral with the priority required hereby. (ii) It shall maintain, at its own cost and expense, such complete and accurate Records with respect to the Collateral owned or held by it or on its behalf as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which it is engaged, but in any event to include complete accounting Records indicating all payments and proceeds received with respect to any part of such Collateral, and, at such time or times as the Collateral Agent may reasonably request, promptly to prepare and deliver to the Collateral Agent a duly certified schedule or schedules in form and detail satisfactory to the Collateral Agent showing the identity and amount of any and all such Collateral. (iii) It shall, at its own cost and expense, take any and all actions necessary to defend title to the Collateral owned or held by it or on its behalf against all Persons and to defend the Security Interest in such Collateral and the priority thereof against any Lien or other interest not expressly permitted by the Secured Debt Documents, and in furtherance thereof, it shall not take, or permit to be taken, any action not otherwise expressly permitted by the Secured Debt Documents that could impair the Security Interest or the priority thereof or any Secured Party's rights in or to such Collateral. (iv) The Collateral Agent and such Persons as the Collateral Agent may designate shall have the right, at the cost and expense of such Grantor, to inspect all of its Records (and to make extracts and copies from such Records), to discuss its affairs with its -23- officers and independent accountants and to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Collateral owned or held by or on behalf of such Grantor, including, in the case of Receivables, Pledged Notes, General Intangibles, Commercial Tort Claims or Collateral in the possession of any third person, by contacting Account Debtors, contract parties or other obligors thereon or any third person possessing such Collateral for the purpose of making such a verification. The Collateral Agent shall have the absolute right to share on a confidential basis any information it gains from such inspection or verification with any Secured Party. (v) At its option and without any obligation whatsoever, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral owned or held by or on behalf of such Grantor, and not permitted by the Secured Debt Documents, and may pay for the maintenance and preservation of such Collateral to the extent such Grantor fails to do so as required by the Secured Debt Documents, and such Grantor agrees, jointly with the other Grantors and severally, to promptly reimburse the Collateral Agent on demand for any payment made or any expense incurred by the Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any other Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Secured Debt Documents. (vi) It shall remain liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral owned or held by it or on its behalf, all in accordance with the terms and conditions thereof, and it agrees, jointly with the other Grantors and severally, to indemnify and hold harmless the Collateral Agent and the other Secured Parties from and against any and all liability for such performance. (vii) It shall not make, or permit to be made, an assignment, pledge or hypothecation of the Collateral owned or held by it or on its behalf, or grant any other Lien in respect of such Collateral, except as expressly permitted by the Secured Debt Documents. Except for Permitted Liens, it shall not make or permit to be made any transfer of such Collateral, and it shall remain at all times in possession of such Collateral and the direct owner, beneficially and of record, of the Pledged Stock included in such Collateral, except that (A) Inventory may be sold in the ordinary course of business, (B) obsolete or worn out Equipment may be sold or disposed of in the ordinary course of business, and (C) unless and until a Notice of Default shall have been delivered, it may use and dispose of such Collateral in any lawful manner not inconsistent with the provisions of this Security Agreement or any other Secured Debt Document; provided, however, that nothing in this paragraph shall be interpreted as prohibiting the merger or liquidation of any Grantor (other than AWHI) into another Grantor, the transfer by the Parent of any Stock or Stock Equivalents to Arch or AWHI or the transfer of any assets of any Grantor to any Subsidiary of AWHI. (viii) It shall, at its own cost and expense, maintain or cause to be maintained insurance covering (A) physical loss or damage to the Collateral owned or held by it or on its behalf against all risks and (B) liability arising from the use or intended use, or otherwise attributable or relating to, such Collateral, in each case in accordance with the provisions of the -24- Secured Debt Documents. The policies covering such insurance (1) shall, in the case of each policy under clause (A) of the immediately preceding sentence, contain a standard loss payable clause and shall name the Collateral Agent or its agent as sole loss payee in respect of each claim relating to such Collateral and resulting in a payment thereunder, (2) shall, in the case of each policy under clause (B) of the immediately preceding sentence, be indorsed to provide, in respect of the interests of the Collateral Agent and the other Secured Parties, that the Collateral Agent shall be an additional insured, and (3) shall, in the case of each policy under such clauses (A) and (B), provide that 30 days' prior written notice of any cancellation or modification thereof or any reduction of amounts payable thereunder shall be given to the Collateral Agent, and in the event that such Grantor at any time or times shall fail to pay any premium in whole or part relating thereto, the Collateral Agent may, in its sole discretion, but shall have no obligation whatsoever to, pay such premium. Such Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact) for the purpose, during the continuance of a Default, of making, settling and adjusting claims in respect of such Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that such Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Collateral Agent may, without waiving or releasing any obligation or liability of the Grantors hereunder or any Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent deems advisable. All sums disbursed by the Collateral Agent in connection with this subsection, including reasonable attorneys' fees and expenses, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by such Grantor to the Collateral Agent and shall be additional Obligations secured hereby. (ix) No later than 45 days after the end of each of the first three fiscal quarters of each fiscal year and 90 days after the end of the fourth fiscal quarter of each fiscal year, AWHI will deliver to the Collateral Agent a certificate signed by a financial officer thereof (or such other officer as is acceptable to the Collateral Agent) either (i) certifying that there has been no change to information disclosed in the schedules to this Security Agreement or, after the delivery of the first certification delivered pursuant to this subsection as previously certified or, if so, specifying all such changes and (ii) certifying that all UCC financing statements or other appropriate filings, recordings or registrations, including all refilings, rerecordings and reregistrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to Schedule 3.1(a)(vii) and each other jurisdiction as is necessary to perfect the Liens in the Collateral. Section 3.2 Equipment and Inventory Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that, as of the Applicable Date, all of the Equipment and Inventory included in the Collateral owned or held by it or on its behalf (other than mobile goods and Inventory and Equipment in transit) is kept only at the locations specified on Schedule 3.2. In addition, each Grantor covenants and agrees that it shall not permit any Equipment or Inventory owned or held by it or on its behalf to be in the possession or control of any warehouseman, bailee, agent or processor for a period of greater than thirty (30) consecutive days, unless such warehouseman, bailee, -25- agent or processor shall have been notified of the Security Interest and shall have agreed in writing to hold such Equipment or Inventory subject to the Security Interest and the instructions of the Collateral Agent (given at the request of the Applicable Representative) and to waive and release any Lien held by it with respect to such Equipment or Inventory, whether arising by operation of law or otherwise. Section 3.3 Receivables (a) Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that no Receivable is evidenced by an Instrument or Chattel Paper that has not been delivered to the Collateral Agent. (b) Each Grantor hereby covenants and agrees that: (i) It shall maintain adequate records of its Receivables and shall mark conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Collateral Agent as provided herein), as well as the related Receivables Records, with an appropriate reference to the fact that the Collateral Agent has a security interest therein. (ii) It will not, without the Collateral Agent's prior written consent acting at the direction of the Applicable Representative (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices and in accordance with such practices reasonably believed by such Grantor to be prudent. (iii) Except as otherwise provided in this Section, it shall continue to collect all amounts due or to become due to it under all such Receivables and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense. In connection with such collections and exercise, at any time during the continuation of a Default, it shall take such action as it or the Collateral Agent, acting at the direction of the Applicable Representative or, after the occurrence and during the continuance of an Actionable Default, Majority Creditors, may reasonably deem necessary. Notwithstanding the foregoing, at any time during the continuation of a Default, the Collateral Agent shall have the right at any time to notify, or require such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent's security interest therein, and in addition, the Collateral Agent may: (i) direct such Account Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent and (ii) enforce, at the cost and expense of such Grantor, collection thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor would be able to have done. If the Collateral Agent notifies such Grantor that it has elected to collect any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments thereof received by such Grantor shall not be commingled with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for -26- the benefit of the Collateral Agent hereunder and shall be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary indorsement), and such Grantor shall not grant any extension of the time of payment thereof, compromise, compound or settle the same for less than the full amount thereof, release the same, wholly or partly, or allow any credit or discount whatsoever thereon. (iv) It shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable. (v) During the continuance of an Acceleration Default, at the request of the Collateral Agent acting at the direction of the Applicable Representative, or during the continuance of an Actionable Default, acting at the direction of Majority Creditors, it shall direct each Account Debtor to make payment on each Receivable to a Blocked Account or the Concentration Account. Section 3.4 Investment Property (a) Representations and Warranties. Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that: (i) Schedule 3.4 sets forth, as of the Applicable Date, all of the Pledged Collateral owned or held by or on behalf of such Grantor. (ii) All Pledged Stock have been duly authorized and validly issued and are fully paid and nonassessable, and such Grantor is the direct owner, beneficially and of record, thereof, free and clear of all Liens (other than Permitted Liens). (iii) All Pledged Notes have been duly authorized, issued and delivered and, where necessary, authenticated, and constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and general equitable principles (whether considered in a proceeding in equity or at law). (iv) All Pledged Collateral consisting of certificated securities or Instruments has been delivered to the Collateral Agent. (v) All Pledged Collateral held by a Securities Intermediary in a Securities Account or a commodities account is in a Control Account. (vi) Other than the Pledged Partnership Interests and the Pledged LLC Interests that constitute General Intangibles, there is no Pledged Collateral other than that represented by certificated securities or Instruments in the possession of the Collateral Agent or that consisting of Financial Assets held in a Control Account. (vii) No Person other than the Collateral Agent has "control" (within the meaning of Article 8 of the UCC) over any Investment Property of such Grantor. -27- (b) Registration in Nominee Name; Denominations. Each Grantor hereby agrees that (i) without limiting Article 5, the Collateral Agent, on behalf of the Secured Parties, shall have the right, upon the written direction of (x) the Applicable Representative (in its sole and absolute discretion) after the occurrence of an Acceleration Default or (y) Majority Creditors after the occurrence of an Actionable Default, to hold any Pledged Stock in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned, where applicable, in blank or in favor of the Collateral Agent, (ii) at the Collateral Agent's request, such Grantor will promptly give to the Collateral Agent copies of any material notices or other communications received by it with respect to any Pledged Stock registered in its name, and (iii) the Collateral Agent shall have the right, upon the written direction of (x) the Applicable Representative (in its sole and absolute discretion) after the occurrence of an Acceleration Default or (y) Majority Creditors after the occurrence of an Actionable Default, to exchange any certificates, instruments or other documents representing or evidencing any Pledged Collateral or Investment Property owned or held by or on behalf of such Grantor for certificates, instruments or other documents of smaller or larger denominations for any purpose consistent with this Security Agreement. (c) Voting and Distributions. (i) Unless and until an (x) Acceleration Default shall have occurred and be continuing or (y) an Actionable Default shall have occurred and be continuing and Majority Creditors shall have directed to the contrary: (A) Each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of the Pledged Stock, or any part thereof, for any purpose consistent with the terms of this Security Agreement and the other Secured Debt Documents. (B) The Collateral Agent shall execute and deliver to each Grantor, or cause to be executed and delivered to each Grantor, all such proxies, powers of attorney and other instruments as such Grantor may reasonably request for the purpose of enabling it to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subsection (c)(i)(A) and to receive the cash payments it is entitled to receive pursuant to subsection (c)(i)(C). (C) Each Grantor shall be entitled to receive, retain and use any and all cash dividends, interest and principal paid on the Pledged Stock owned or held by it or on its behalf to the extent and only to the extent that such cash dividends, interest and principal are not prohibited by, and otherwise paid in accordance with, the terms and conditions of the Secured Debt Documents and applicable laws. All non-cash dividends, interest and principal, and all dividends, interest and principal paid or payable in cash or otherwise in connection with a partial or total liquidation or dissolution, return of capital, capital surplus or paid-in surplus, and all other distributions (other than distributions referred to in the preceding sentence) made on or in respect of the Pledged Stock whether paid or payable in cash or otherwise, whether resulting from a subdivision, combination or reclassification of the outstanding Pledged Stock in any issuer thereof in exchange for any Pledged Stock, or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Collateral, and, if received by such Grantor, shall not be commingled with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent -28- hereunder and shall be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement). (ii) Without limiting the generality of the foregoing, if the Collateral Agent, acting at the direction of (x) the Applicable Representative, upon the occurrence and during the continuance of an Acceleration Default, or (y) Majority Creditors, upon the occurrence and during the continuance of an Actionable Default, shall so direct, then: (A) All rights of each Grantor to dividends, interest or principal that it is authorized to receive pursuant to subsection (c)(i)(C) shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest or principal, as applicable. All dividends, interest and principal received by or on behalf of any Grantor contrary to the provisions of this Section shall be held in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of such Grantor and shall be forthwith delivered to the Collateral Agent upon demand in the same form as so received (with any necessary endorsement). Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this subsection (c)(ii)(A) shall be retained by the Collateral Agent in the Collateral Account for the benefit of the Secured Parties. After all Defaults have been cured or waived, the Collateral Agent shall, within five Business Days thereafter, repay to the applicable Grantor all cash dividends, interest and principal (without interest) that such Grantor would otherwise be permitted to retain pursuant to the terms of subsection (c)(i)(C) and which remain in the Collateral Account. (B) All rights of each Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to subsection (c)(i)(A), and the obligations of the Collateral Agent under subsection (c)(i)(B), shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that unless otherwise directed by the Collateral Agent acting pursuant to the directions of (1) the Applicable Representative in the case of an Acceleration Default or (2) Majority Creditors in the case of an Actionable Default, the Collateral Agent shall have the right from time to time following and during the continuance of a Default to permit such Grantor to exercise such rights. After all Defaults have been cured or waived, the applicable Grantor will have the right to exercise the voting and consensual rights and powers that it would otherwise be entitled to exercise pursuant to the terms of subsection (c)(i)(A). Section 3.5 Deposit Accounts (a) Representations and Warranties. The only Deposit Accounts maintained by any Grantor on the Applicable Date are those listed on Schedule 3.5 which sets forth such information separately for each Grantor. (b) Covenants and Agreements. Each Grantor hereby covenants and agrees as follows: (i) Each Grantor shall (A) cause all cash and all Proceeds received by such Grantor to be deposited in, or swept into, either the Mellon Account or, to the extent required by the Collateral Agent, acting at the direction of the Applicable Representative, the Concentration Account on a daily basis, except that cash to make Investments permitted by the Secured Debt -29- Documents may be deposited in a Control Account; provided that after giving effect to such deposit and/or cash sweep, the amount of such cash and Proceeds on deposit in accounts other than the Mellon Account or the Concentration Account shall not exceed $1,000,000 (exclusive of the amounts in accounts for unpaid payroll, payroll taxes and withholding taxes), (B) to the extent required by the Collateral Agent, acting at the direction of the Applicable Representative, and to the extent that such cash and Proceeds are deposited in the Mellon Account and such cash and Proceeds exceed an amount not to exceed $2,000,000, such cash and Proceeds shall be deposited in, or swept into, the Concentration Account on a daily basis, (C) not establish or maintain, or permit any other Grantor to establish or maintain, any Securities Account or commodities account that is not a Control Account, and (D) not establish or maintain, or permit any other Grantor to establish or maintain, any account with any financial or other institution in which Proceeds are deposited other than the accounts listed on Schedule 3.5; provided that amounts in all such accounts are deposited in, or swept into, the Mellon Account as set forth in clause (A); provided, further, that the amount in the accounts so indicated on Schedule 3.5 which are for unpaid payroll, payroll taxes and withholding taxes are not required to be swept on a daily basis. So long as no Default has occurred and is continuing, a Grantor may transfer funds from the Blocked Account to any existing disbursement or Deposit Accounts of such Grantor. (ii) In the event (A) any Grantor or any Approved Securities Intermediary or Blocked Account Bank shall, after the date hereof, terminate an agreement with respect to the maintenance of a Control Account or Blocked Account for any reason, (B) the Collateral Agent shall demand the termination of an agreement with respect to the maintenance of a Control Account or a Blocked Account as a result of the failure of an Approved Securities Intermediary or Blocked Account Bank to comply with the terms of the applicable Control Account Letter or Blocked Account Letter, or (C) the Applicable Representative determines in its sole discretion that the financial condition of an Approved Securities Intermediary or Blocked Account Bank, as the case may be, has materially deteriorated, such Grantor agrees to notify all of its obligors that were making payments to such terminated Control Account or Blocked Account, as the case may be, to make all future payments to another Control Account or Blocked Account, as the case may be. Section 3.6 Letter of Credit Rights Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that Schedule 3.6 sets forth, as of the Applicable Date, each letter of credit giving rise to a Letter of Credit Right included in the Collateral owned or held by or on behalf of such Grantor. Section 3.7 Intellectual Property (a) Representations and Warranties. Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that Schedule 3.7 sets forth, as of the Applicable Date, all of the Material Intellectual Property owned or held by or on behalf of such Grantor, specifically identifying that owned by the Grantors and that licensed to the Grantors. (b) Covenants and Agreements. Each Grantor hereby covenants and agrees as follows: -30- (i) It will not, nor will it permit any of its licensees (or sublicensees) to, do any act, or omit to do any act, whereby any Patent that is material to the conduct of its business may become invalidated or dedicated to the public, and it shall continue to mark any products covered by a Patent with the relevant patent number as necessary and sufficient to establish and preserve its maximum rights under applicable patent laws. (ii) It will (either directly or through its licensees or its sublicensees), for each Trademark that is material to the conduct of its business, (A) maintain such Trademark in full force free from any claim of abandonment or invalidity for non-use, (B) maintain the quality of products and services offered under such Trademark, (C) display such Trademark with notice of Federal or other analogous registration to the extent necessary and sufficient to establish and preserve its rights under applicable law, and (D) not knowingly use or knowingly permit the use of such Trademark in violation of any third party's valid and legal rights. (iii) It will (either directly or through its licensees or its sublicensees), for each work covered by a Copyright that is material to the conduct of its business, continue to publish, reproduce, display, adopt and distribute the work with appropriate copyright notice as necessary and sufficient to establish and preserve its maximum rights under applicable copyright laws. (iv) It will promptly notify the Collateral Agent in writing if it knows or has reason to know that any Material Intellectual Property material to the conduct of its business may become abandoned, lost or dedicated to the public, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office, or any similar offices or tribunals in the United States or any other country) regarding such Grantor's ownership of any such Material Intellectual Property, its right to register the same, or to keep and maintain the same. (v) In no event shall it, either directly or through any agent, employee, licensee or designee, file an application for any Material Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any similar offices in the United States or any other country, unless it promptly notifies the Collateral Agent in writing thereof and executes and delivers any and all agreements, instruments, documents and papers as are necessary or appropriate to evidence the Collateral Agent's security interest in such Material Intellectual Property, and such Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable. (vi) It will take all necessary steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any similar offices or tribunals in the United States or any other country, to maintain and pursue each application relating to the Material Intellectual Property owned or held by it or on its behalf (and to obtain the relevant grant or registration) and to maintain each issued Patent and each registered Trademark and Copyright that is material to the conduct of its business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent, in good faith, with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties. In the event that it has reason to believe that any Material Intellectual Property has been or is about to be -31- infringed, misappropriated or diluted by a third party, it promptly shall notify the Collateral Agent in writing and shall, if consistent with good business judgment, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as are appropriate under the circumstances to protect such Intellectual Property. (vii) During the continuance of a Default, it shall use its best efforts to obtain all requisite consents or approvals by the licenser of each License to effect the assignment (as collateral security) of all of its right, title and interest thereunder to the Collateral Agent or its designee. (viii) It shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets that is material to the conduct of its business relating to the products and services sold or delivered under or in connection with the Material Intellectual Property owned or held by or on its behalf, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents. (ix) It shall continue to collect all amounts due or to become due to such Grantor under all Intellectual Property, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of (A) an Acceleration Default, take such action as it or the Collateral Agent acting at the direction of the Applicable Representative, may reasonably deem necessary or (B) an Actionable Default, take such action as it or the Collateral Agent acting at the direction of Majority Creditors may reasonably deem necessary. Notwithstanding the foregoing, upon the occurrence and during the continuance of a Default, the Collateral Agent, acting at the direction of (A) the Applicable Representative in the case of an Acceleration Default or (b) Majority Creditors in the case of an Actionable Default, shall have the right to notify, or require such Grantor to notify, any relevant obligors with respect to such amounts of the Collateral Agent's security interest therein. Section 3.8 Commercial Tort Claims (a) Representations and Warranties. Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that Schedule 3.8 sets forth, as of the Applicable Date, all Commercial Tort Claims involving an amount in excess of $500,000 made by it or on its behalf or, to the best of its knowledge, to which it otherwise has any right, title or interest. (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that promptly after the same shall have been commenced, written notice of any Commercial Tort Claim and any judgment, settlement or other disposition thereof shall be given to the Collateral Agent. Section 3.9 Real Property (a) Representations and Warranties. Each of the Grantors, jointly with the other Grantors and severally, represents and warrants to the Collateral Agent and the other Secured Parties that: (i) Owned Real Property. -32- (A) Schedule 3.9(a)(i) sets forth a complete list of all Real Property owned by each of the Grantors as of the Applicable Date (individually, an "Owned Real Property" and collectively, the "Owned Real Properties") as well as all contracts, agreements or options to acquire other Real Property, or to sell or lease Owned Real Property, in each case binding on each of the Grantors showing, as of the Applicable Date, the street address, county or other relevant jurisdiction, state, and record owner. (B) Each of the Grantors has good, indefeasible, marketable and insurable fee simple title to all Owned Real Properties owned by it and all buildings, structures and other improvements located thereon, free and clear of all Liens, other than Permitted Liens. (ii) Leased Real Property. (A) Schedule 3.9(a)(ii)(A) sets forth, as of the Applicable Date, a complete list of all Real Property leased, subleased, or otherwise occupied or used by each of the Grantors as lessee other than tower site leases (individually, a "Leased Real Property" and collectively, the "Leased Real Properties") showing, the street address, county or other relevant jurisdiction, state, and leasehold owner. (B) Each of the Grantors has valid, binding and enforceable leasehold interests in, good marketable and insurable leasehold title to, and actual and exclusive possession of the Leased Real Properties leased, subleased or otherwise occupied or used by it free and clear of all Liens of any nature whatsoever, other than Permitted Liens, and all buildings, structures or other improvements located thereon pursuant to the leases, subleases, licenses and occupancy agreements listed on Schedule 3.9(a)(ii)(B) (each, a "Real Property Lease" and collectively, the "Real Property Leases"). (C) Each of the Real Property Leases is in full force and effect and, except as set forth on Schedule 3.9(a)(ii)(B), has not been amended, modified, supplemented or assigned. (D) Except for the Real Property Leases set forth on Schedule 3.9(b)(ii)(D), there are no Real Property Leases which, if terminated, could reasonably be expected to result in a Material Adverse Effect. (b) Covenants and Agreements. (i) Each Grantor hereby covenants and agrees that if at any time on or after the date hereof, it shall acquire any Owned Real Property, then it shall, at its own cost and expense, promptly (A) notify the Collateral Agent thereof in writing and (B) execute and deliver to the Collateral Agent (1) counterparts of a Mortgage with respect to such Owned Real Property, signed on behalf of the record owner of such Owned Real Property, (2) a policy or policies of title insurance issued by a nationally recognized title insurance company, insuring the Lien of each such Mortgage as a valid first Lien on such Owned Real Property described therein, free of any other Liens other than Permitted Liens, in form and substance reasonably acceptable to the Applicable Representative, together with such endorsements, coinsurance and reinsurance as the Applicable Representative or the Majority Creditors may reasonably request, (3) such surveys as may be required pursuant to such Mortgages or as the Applicable Representative or the Majority Creditors may reasonably request, (4) a copy of the original permanent certificate or temporary -33- certificate of occupancy as the same may have been amended or issued from time to time, covering each improvement located upon such Real Property that were required to have been issued by the appropriate Governmental Authority for such improvement, (5) written confirmation from the applicable zoning commission or other appropriate Governmental Authority stating that, with respect to Real Property as built, it complies with existing land use and zoning ordinances, regulations and restrictions applicable to such Real Property, (6) a copy of a phase I environmental report issued for each such Real Property, each such report to be satisfactory to the Applicable Representative, (7) a Mortgage Opinion of Counsel and (8) such other customary documentation with respect to the Mortgages and the Real Property, including copies of all appraisals issued with respect thereto, as the Applicable Representative or the Majority Creditors may reasonably request. (ii) Each Grantor agrees that no later than 90 days after the date hereof, it will use commercially reasonable efforts to deliver to the Collateral Agent, a Mortgage with respect to each Leased Real Property listed on Schedule 3.9(a)(ii)(D), together with a landlord's consent thereto substantially in the form of Exhibit D, a recorded memorandum of lease and such other customary documentation with respect thereto as the Collateral Agent, acting at the direction of the Applicable Representative may reasonably request. In addition, each Grantor hereby covenants and agrees that if at any time on or after the date hereof, it shall become the lessee with respect to any Leased Real Property which, if terminated, could reasonably be expected to result in a Material Adverse Effect, then it shall, at its own cost and expense, promptly (A) notify the Collateral Agent thereof in writing and (B) use commercially reasonable efforts to deliver to the Collateral Agent, a Mortgage thereon together with a landlord's consent thereto substantially in the form of Exhibit D, a recorded memorandum of lease, a Mortgage Opinion of Counsel and such other customary documentation with respect thereto as the Collateral Agent, acting at the direction of the Applicable Representative may reasonably request. ARTICLE 4. FURTHER ASSURANCES Section 4.1 Further Assurances Each Grantor hereby covenants and agrees, at its own cost and expense, to execute, acknowledge, deliver and/or cause to be duly filed all such further agreements, instruments, Foreign Pledge Agreements and other documents (including favorable legal opinions in connection with the pledge of the Stock in Foreign Subsidiaries as provided in Section 4.2), and take all such further actions, that the Collateral Agent may from time to time reasonably request to preserve, protect and perfect (including as a result of any change in applicable law) the Security Interest granted by it and the rights and remedies created hereby, including the payment of any fees and taxes required in connection with its execution and delivery of this Security Agreement, the granting by it of the Security Interest and the filing of any financing statements or other documents in connection herewith or therewith. In addition, to the extent permitted by applicable law, each Grantor hereby irrevocably authorizes the Collateral Agent to file one or more financing or continuation statements and amendments thereto (and to use the power of attorney granted in Article 5 to sign such statements, if required), relative to all or any part of the Collateral owned or held by it or on its behalf without the signature of such Grantor and agrees that a photographic or other reproduction of this Security Agreement or of a financing statement signed by such Grantor shall be sufficient as a financing statement and may be filed as a financing statement in any and all jurisdictions. Each Grantor hereby further irrevocably authorizes the Collateral Agent to file a Record or Records, including financing statements, in all jurisdictions and with all filing offices as are necessary, advisable or prudent to perfect the Security Interest granted by it and agrees that such financing -34- statements may describe the Collateral owned or held by it or on its behalf in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner that the Applicable Representative may determine, in its sole and absolute discretion, is necessary, advisable or prudent to perfect the Security Interest granted by such Grantor, including describing such property as "all assets" or "all personal property." Section 4.2 Additional Subsidiaries; Foreign Subsidiaries (a) If any Domestic Subsidiary or Material Foreign Subsidiary (other than AWHI, a Domestic Subsidiary or a Material Foreign Subsidiary that is a party to the Security Documents) is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Security Agreement) after the date of this Security Agreement, or a Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary, the Parent will notify the Collateral Agent in writing thereof not later than the fifth Business Day after the date on which such Domestic Subsidiary or Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Security Agreement) or such Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary, as applicable, and, in addition, the Parent will cause such new Domestic Subsidiary or Material Foreign Subsidiary or such Non-Material Foreign Subsidiary that has become a Material Foreign Subsidiary, as applicable, to become an Additional Grantor in accordance with Article 13 not later than the fifth Business Day after the date on which such new Domestic Subsidiary or Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Security Agreement) or such Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary, as applicable. In connection therewith, the Parent will deliver or cause to be delivered to the Collateral Agent such agreements and other documents as may be necessary or appropriate to grant a first priority security interest in (i) the outstanding Stock of such Material Foreign Subsidiary which is owned by or on behalf of a Grantor (including one or more Foreign Pledge Agreements) and (ii) the assets of such Material Foreign Subsidiary constituting Collateral, together with (A) such UCC-1 financing statements or amendments thereto and other documents as requested by the Collateral Agent, together with either (x) satisfactory evidence that all taxes payable in connection with the filing of the UCC-1 financing statements have been paid or (y) a check payable to each applicable Governmental Authority in payment of each such tax, and (B) opinions of counsel (including foreign counsel opinions) as the Collateral Agent may request. (b) If any Non-Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Security Agreement) after the date of this Security Agreement, the Parent will notify the Collateral Agent in writing thereof not later than the fifth Business Day after the date on which such Non-Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Security Agreement) and, in addition, the Parent will pledge or cause to be pledged to the Collateral Agent as additional Collateral not later than the fifth Business Day after the date on which such Non-Material Foreign Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes of this Security Agreement) (x) if such Non-Material Foreign Subsidiary is a "controlled foreign corporation" as defined in the Code, Stock representing 65% of the voting power of all classes of Stock of such Non-Material Foreign Subsidiary entitled to vote and (y) in all other cases, 100% of the Stock thereof, together with (i) such UCC-1 financing statements or amendments thereto and other documents as requested by the Collateral Agent, together with either (x) satisfactory evidence that all taxes payable in connection with the filing of the UCC-1 financing statements have been paid or (y) a check payable to each applicable Governmental Authority in payment of each such tax, (ii) all promissory notes evidencing Indebtedness of such Non-Material Foreign Subsidiary to any Grantor, and (iii) such agreements (including one or more Foreign Pledge Agreements), certificates, instruments and opinions of counsel (including foreign counsel opinions) as the Collateral Agent may request. -35- Section 4.3 Opinion of Counsel AWHI and the Guarantors shall furnish to the Collateral Agent and each of the Representatives within three months after each anniversary of the date of this Security Agreement, an Opinion of Counsel dated as of such date, stating either that (i) in the opinion of such counsel all action has been taken with respect to the recording, registering, filing, re-recording, re-registering and refiling of all financing statements, continuation statements or other instruments of further assurance as is necessary to perfect the Security Interest and to maintain the Liens of the Security Documents and reciting the details of such action, subject to customary assumptions and exclusions or (ii) in the opinion of such counsel, no such action is necessary to maintain such Liens, which Opinion of Counsel also shall state what actions it then believes are necessary to maintain the effectiveness of such Liens during the next year, subject to customary assumptions and exclusions. ARTICLE 5. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT Each Grantor hereby appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful agent and attorney-in-fact for the purpose of carrying out the provisions of this Security Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest, and without limiting the generality of the foregoing, upon the occurrence and during the continuance of an Acceleration Default the Collateral Agent, acting at the direction of the Applicable Representative, and an Actionable Default, acting at the direction of Majority Creditors, shall have the right, with power of substitution for such Grantor and in such Grantor's name or otherwise, for the use and benefit of the Collateral Agent and the other Secured Parties, upon the occurrence and during the continuance of a Default and at such other time or times permitted by the Secured Debt Documents, (i) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral owned or held by it or on its behalf or any part thereof; (ii) to demand, collect, receive payment of, give receipt for, and give discharges and releases of, any of such Collateral; (iii) to sign the name of such Grantor on any invoice or bill of lading relating to any of such Collateral; (iv) to send verifications of Receivables owned or held by it or on its behalf to any Account Debtor; (v) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on any of the Collateral owned or held by it or on its behalf or to enforce any rights in respect of any of such Collateral; (vi) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to any of such Collateral; (vii) to notify, or to require such Grantor to notify, Account Debtors and other obligors to make payment directly to the Collateral Agent, and (viii) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with any of such Collateral, and to do all other acts and things necessary to carry out the purposes of this Security Agreement, as fully and completely as though the Collateral Agent were the absolute owner of such Collateral for all purposes; provided, however, that nothing herein contained shall be construed as requiring o r obligating the Collateral Agent or any other Secured Party to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent or any other Secured Party, or to present or file any claim or notice, or to take any action with respect to any of the Collateral or the moneys due or to become due in respect thereof or any property covered thereby, and no action taken or omitted to be taken by the Collateral Agent or any other Secured Party with respect to any of the Collateral shall give rise to any defense, counterclaim or offset in favor of such Grantor or to any claim or action against the Collateral Agent or any other Secured Party. The provisions of this Article shall in no event relieve any Grantor of any of its obligations hereunder or under the other Secured Debt Documents with respect to any of the Collateral or impose any obligation on the Collateral Agent or any other -36- Secured Party to proceed in any particular manner with respect to any of the Collateral, or in any way limit the exercise by the Collateral Agent or any other Secured Party of any other or further right that it may have on the date of this Security Agreement or hereafter, whether hereunder, under any other Secured Debt Document, by law or otherwise. Any sale pursuant to the provisions of this paragraph shall be deemed to conform to the commercially reasonable standards as provided in Section 9-504(3) of the UCC as in effect in the State of New York or its equivalent in other jurisdictions (or any successor provision, including those contained in Part 6 of Article 9 of the UCC). ARTICLE 6. REMEDIES UPON DEFAULT Section 6.1 Remedies Generally (a) General Rights. Upon the occurrence and during the continuance of a Default and the demand of the Collateral Agent, acting at the direction of the Applicable Representative in the case an Acceleration Default, and Majority Creditors, in the case of an Actionable Default, each Grantor agrees to deliver each item of Collateral owned or held by it or on its behalf to the Collateral Agent on demand, and it is agreed that the Collateral Agent shall have the right to take any of or all the following actions at the same or different times: (i) with respect to any Collateral consisting of Intellectual Property or Commercial Tort Claims, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any such Collateral by the applicable Grantors to the Collateral Agent, or, in the case of Intellectual Property, to license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (ii) with or without legal process and with or without prior notice or demand for performance, to take possession of the Collateral owned or held by it or on its behalf and without liability for trespass to enter any premises where such Collateral may be located for the purpose of taking possession of or removing such Collateral and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Grantor agrees that the Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of any of the Collateral owned or held by or on behalf of such Grantor, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. The Collateral Agent shall be irrevocably authorized at any such sale of such Collateral constituting securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing such Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of the applicable Grantor, and such Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. (b) Sale of Collateral. The Collateral Agent shall give each Grantor ten days' written notice (which such Grantor agrees is reasonable notice within the meaning of Section 9-504(3) of the UCC as in effect in the State of New York or its equivalent in other jurisdictions (or any successor provisions, including those contained in Part 6 of Article 9 of the UCC)) of the Collateral Agent's intention to make any sale of any of the Collateral owned or held by or on behalf of such Grantor. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at -37- a broker's board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which such Collateral will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of any of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of such Grantor (all said rights being also hereby waived and released to the extent permitted by law), any of the Collateral offered for sale and may make payment on account thereof by using any claim then due and payable to such Secured Party from such Grantor as a credit against the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to such Grantor therefor. For purposes hereof, (i) a written agreement to purchase any of the Collateral shall be treated as a sale thereof, (ii) the Collateral Agent shall be free to carry out such sale pursuant to such agreement, and (iii) no Grantor shall be entitled to the return of any of the Collateral subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Defaults shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon any of the Collateral and to sell any of the Collateral pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Article shall be deemed to conform to the commercially reasonable standards as provided in Section 9-504(3) of the UCC as in effect in the State of New York or its equivalent in other jurisdictions (or any successor provisions, including those contained in Part 6 of Article 9 of the UCC). Without limiting the generality of the foregoing, each Grantor agrees as follows: (A) if the proceeds of any sale of the Collateral owned or held by it or on its behalf pursuant to this Article are insufficient to pay all the Obligations, it shall be liable for the resulting deficiency and the fees, charges and disbursements of any counsel employed by the Collateral Agent or any other Secured Party to collect such deficiency, (B) it hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any such Collateral may have been sold at any private sale pursuant to this Article was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree, (C) there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensible in damages, and therefore agrees that its agreements in this Section may be specifically enforced, (D) the Collateral Agent may sell any such Collateral without giving any warranties as to such Collateral, and the Collateral Agent may specifically disclaim any warranties of title or the like, and (E) the Collateral Agent shall have no obligation to marshall any such Collateral. -38- (c) FCC Licenses. Notwithstanding anything to the contrary contained in any Secured Debt Document or in any other agreement, instrument or document executed by any Grantor and delivered to the Collateral Agent, the Collateral Agent will not take any action pursuant to any Secured Debt Document or any other document referred to above which would constitute or result in any assignment of any FCC Licenses or, to the extent failure to obtain such approval could reasonably be expected to have or cause a Material Adverse Effect, from any other applicable Governmental Authority, or any change of control (whether de jure or de facto) of such Grantor or any of its Subsidiaries if such assignment of any such FCC Licenses or change of control would require, under then existing law, the prior approval of the FCC or, to the extent failure to obtain such approval could reasonably be expected to have or cause a Material Adverse Effect, from any other applicable Governmental Authority, without first obtaining such prior approval of the FCC or such other Governmental Authority. (d) Upon the occurrence of a Default or at any time thereafter during the continuance thereof, such Grantor agrees to take any action which the Collateral Agent, acting at the direction of the Applicable Representative, in the case of an Acceleration Default, or Majority Creditors, in the case of an Actionable Default, may reasonably request in order to obtain from the FCC or any other Governmental Authority such approval as may be necessary to enable the Collateral Agent to exercise and enjoy the full rights and benefits granted to the Collateral Agent by this Security Agreement and the other documents referred to above, including specifically, at the cost and expense of such Grantor, the use of commercially reasonable efforts to assist in obtaining approval of the FCC or such other Governmental Authority for any action or transaction contemplated by this Security Agreement for which such approval is or shall be required by law, and specifically, without limitation, upon request, to prepare, sign and file with the FCC or such other Governmental Authority the assignor's or transferor's portion of any application or applications for consent to the assignment of license, FCC Licenses or transfer of control necessary or appropriate under the FCC's or such other Governmental Authority's rules and regulations for approval of (i) any sale or other disposition of the Pledged Stock by or on behalf of the Collateral Agent, or (ii) any assumption by the Collateral Agent of voting rights in the Pledged Stock effected in accordance with the terms of this Security Agreement. It is understood and agreed that all foreclosure and related actions will be made in accordance with the Communications Act and applicable regulations and published policies and decisions of the FCC, and the statutes, regulations and published policies and decisions enforced by such other Governmental Authorities pertaining to such foreclosure and related actions. Section 6.2 Pledged Stock In view of the position of each Grantor in relation to the Pledged Stock or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the "Federal securities laws") with respect to any disposition of the Pledged Stock permitted hereunder. Each Grantor understands that compliance with the Federal securities laws might very strictly limit the course of conduct of the Collateral Agent if the Collateral Agent were to attempt to dispose of all or any part of the Pledged Stock, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Stock could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part of the Pledged Stock under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect. Each Grantor recognizes that in light of such restrictions and limitations the Collateral Agent may, with respect to any sale of the Pledged Stock, limit the purchasers to those who will agree, among other things, to acquire such Pledged Stock for their own account, for investment, and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the Collateral -39- Agent, in its sole and absolute discretion, (i) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Stock, or any part thereof, shall have been filed under the Federal securities laws and (ii) may approach and negotiate with a single potential purchaser to effect such sale. Each Grantor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Pledged Stock at a price that the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Collateral Agent sells any such Pledged Stock. Section 6.3 Grant of License to Use Intellectual Property For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Article, at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to such Grantor) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or held or hereafter acquired or held by or on behalf of such Grantor, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. Upon the occurrence and during the continuation of a Default, the use of such license by the Collateral Agent shall be exercised by the Collateral Agent at the direction of the Applicable Representative, in the case of an Acceleration Default, and Majority Creditors, in the case of an Actionable Default; provided that any license, sub-license or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon such Grantor notwithstanding any subsequent cure of a Default. Any royalties and other payments received by the Collateral Agent shall be applied in accordance with the Collateral Agent Agreement. Section 6.4 Registration, etc. Each Grantor agrees that, upon the occurrence and during the continuance of a Default, if for any reason the Collateral Agent desires to sell any of the Investment Property owned or held by or on behalf of such Grantor at a public sale, it will, at any time and from time to time, upon the written request of the Collateral Agent, acting at the direction of the Applicable Representative, in the case of an Acceleration Default, and Majority Creditors, in the case of an Actionable Default, use its best efforts to take or to cause, where applicable, the issuer of such Investment Property to take such action and prepare, distribute and/or file such documents, as are required or advisable in the reasonable opinion of counsel for the Collateral Agent to permit the public sale of such Investment Property. Each Grantor further agrees to indemnify, defend and hold harmless the Collateral Agent, each other Secured Party, any underwriter and their respective officers, directors, affiliates and controlling Persons from and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses of legal counsel), and claims (including the costs of investigation) that they may incur, insofar as such loss, liability, expense or claim, as applicable, relates to such Grantor or any of its property, and arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not -40- misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to such Grantor or the issuer of such Investment Property, as applicable, by the Collateral Agent or any other Secured Party expressly for use therein. Each Grantor further agrees, upon such written request referred to above, to use its best efforts to qualify, file or register, or cause, where applicable, the issuer of such Investment Property to qualify, file or register, any of the Investment Property owned or held by or on behalf of such Grantor under the Blue Sky or other securities laws of such states as are necessary or appropriate under the circumstances and keep effective, or cause to be kept effective, all such qualifications, filings or registrations. Each Grantor will bear all costs and expenses of carrying out its obligations under this Section. Each Grantor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Section 6.5 Cash Proceeds In addition to the rights of the Collateral Agent specified in Section 3.3 with respect to payments of Receivables, if directed by the Collateral Agent acting at the direction of (i) the Applicable Representative upon the occurrence and during the continuance of an Acceleration Default or (ii) Majority Creditors upon the occurrence and during the continuance of an Actionable Default, all proceeds of any Collateral received by any Grantor consisting of cash, checks and other near-cash items shall be held by such Grantor in trust for the Collateral Agent, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Collateral Agent in the exact form received by such Grantor (duly indorsed by such Grantor to the Collateral Agent, if required) for application to the Obligations. Section 6.6 Application of Proceeds All proceeds received by the Collateral Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral shall be applied as provided in the Collateral Agent Agreement. ARTICLE 7. THE COLLATERAL AGENT The Collateral Agent has been appointed to act as Collateral Agent hereunder pursuant to the terms of the Collateral Agent Agreement. The duties, powers, rights, limitations of liability, the standard of care, the disclaimers and indemnifications in favor of the Collateral Agent are set forth in the Collateral Agent Agreement, the provisions for which are incorporated herein as if fully set forth herein. In the event of a conflict between any of the provisions of this Security Agreement and any of the provisions of the Collateral Agent Agreement, the provisions of the Collateral Agent Agreement shall control. ARTICLE 8. SECURITY INTEREST ABSOLUTE All rights of the Collateral Agent hereunder, the Security Interest and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of any Secured Debt Document, any agreement with respect to any of the Obligations, or any other agreement or instrument relating to any of the foregoing, (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other waiver, amendment, supplement or other modification of, or any consent to any departure from, any Secured Debt -41- Document or any other agreement or instrument relating to any of the foregoing, (iii) any exchange, release or non-perfection of any Lien on any other collateral, or any release or waiver, amendment, supplement or other modification of, or consent under, or departure from, any guaranty, securing or guaranteeing all or any of the Obligations, or (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Obligations or in respect of this Security Agreement or any other Secured Debt Document. ARTICLE 9. TERMINATION; RELEASE This Security Agreement and the Security Interest shall terminate at such time as the Collateral Agent releases the Security Interest pursuant to the provisions of Section 8.1 of the Collateral Agent Agreement. All releases of Collateral shall be subject to the provisions of Article 8 of the Collateral Agent Agreement. In connection with any termination or release pursuant to this Section, the Collateral Agent shall execute and deliver to the applicable Grantor, at such Grantor's own cost and expense, all UCC termination statements and similar documents that such Grantor may reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Article shall be without recourse to or warranty by the Collateral Agent or any other Secured Party. ARTICLE 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM The powers conferred on the Collateral Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property. Neither the Collateral Agent nor any Related Party shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Collateral Agent may, but shall not be obligated to, itself perform, or cause performance of, such agreement, and the expenses of the Collateral Agent incurred in connection therewith shall be payable by each Grantor as an additional Obligation secured by the Collateral. ARTICLE 11. INDEMNITY AND EXPENSES Section 11.1 Indemnification Each Grantor agrees: (a) to defend (subject to the Indemnitees' selection of counsel), indemnify, pay and hold harmless each Indemnitee, from and against any and all claims, losses and liabilities in any way relating to, growing out of or resulting from this Security Agreement and the transactions contemplated hereby (including without limitation enforcement of this Security Agreement), except to the extent such claims, losses or liabilities result from such Indemnitee's gross negligence or willful misconduct; and (b) to pay to the Collateral Agent promptly following written demand therefor, all reasonable out-of-pocket costs and expenses incurred by the Collateral Agent, including the reasonable -42- fees and expenses of its counsel and of any experts and agents, in connection with (i) the administration of the Security Documents, any workout, restructuring or negotiations in respect of the Secured Debt Documents and any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated thereby shall be consummated) and (ii) the enforcement or protection of its rights in connection with the Security Documents, including its rights under this Section. Section 11.2 Survival The obligations of each Grantor in this Article 11 shall survive the resignation or removal of the Collateral Agent and the termination of this Security Agreement and the discharge of such Grantor's other obligations under this Security Agreement and the Secured Debt Documents. ARTICLE 12. NOTICES All notices and other communications provided for herein shall be in writing and given as provided in Section 10.2 of the Collateral Agent Agreement. ARTICLE 13. ADDITIONAL GRANTORS Upon execution and delivery after the date hereof by the Collateral Agent and a Subsidiary of a Supplement, such Subsidiary shall become a Grantor hereunder and under the Collateral Agent Agreement with the same force and effect as if originally named as a Grantor herein and therein (each an "Additional Grantor"). The execution and delivery of any Supplement shall not require the consent of any other Grantor. The rights and obligations of each Grantor hereunder and under the other Secured Debt Documents shall remain in full force and effect notwithstanding the addition of any Additional Grantor as a party to this Security Agreement and the Collateral Agent Agreement. ARTICLE 14. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS Whenever in this Security Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party, and all covenants, promises and agreements by or on behalf of any Grantor that are contained in this Security Agreement shall bind and inure to the benefit of each party hereto and its successors and assigns. This Security Agreement shall become effective as to the Grantors at such time as the Credit Agreement and the Indentures have become effective and when a counterpart hereof executed on behalf of the Grantors shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon the Grantors and the Collateral Agent and their respective successors and assigns, and shall inure to the benefit of the Grantors, the Collateral Agent and the other Secured Parties, and their respective successors and assigns, except that no Grantor shall have the right to assign its rights or obligations hereunder or any interest herein or in any of the Collateral (and any such attempted assignment shall be void), except as expressly contemplated by this Security Agreement. This Security Agreement shall be construed as a separate agreement with respect to each of the Grantors and may be amended, supplemented, waived or otherwise modified or released with respect to any Grantor without the approval of any other Grantor and without affecting the obligations of any other Grantor hereunder. -43- ARTICLE 15. SURVIVAL OF AGREEMENT; SEVERABILITY All covenants, agreements, representations and warranties made by the Grantors herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Security Agreement shall be considered to have been relied upon by the Collateral Agent and the other Secured Parties and shall survive the execution and delivery hereof regardless of any investigation made by the Secured Parties or on their behalf, and shall continue in full force and effect until this Security Agreement shall terminate. In the event any one or more of the provisions contained in this Security Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. ARTICLE 16. AMENDMENTS AND WAIVERS This Security Agreement may not be amended, revised, restated or supplemented (other than by a Supplement) or any provision hereof waived without the prior written consent of AWHI, acting for itself and each other Grantor, and the Collateral Agent, acting with the consent of Majority Creditors. ARTICLE 17. GOVERNING LAW THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. ARTICLE 18. COUNTERPARTS This Security Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which, when taken together, shall constitute but one contract (subject to Article 14), and shall become effective as provided in Article 14. Delivery of an executed counterpart of this Security Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Security Agreement. ARTICLE 19. HEADINGS Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Security Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Security Agreement. ARTICLE 20. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS Each Grantor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of -44- America sitting in New York City, and any appellate court thereof, in any action or proceeding arising out of or relating to this Security Agreement or the other Secured Debt Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that, to the extent permitted by applicable law, all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by applicable law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Security Agreement shall affect any right that the Collateral Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Security Agreement or the other Secured Debt Documents against such Grantor or any of its property in the courts of any jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Security Agreement or the other Secured Debt Documents in any foregoing court referred to in this Article. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each of the parties hereto irrevocably consents to service of process in the manner provided for notices in Article 12. Nothing in this Security Agreement will affect the right of any party hereto to serve process in any other manner permitted by law. ARTICLE 21. WAIVER OF JURY TRIAL EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY AGREEMENT. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS ARTICLE. -45- ARCH WIRELESS HOLDINGS, INC. SECURITY AGREEMENT IN WITNESS WHEREOF, the parties hereto have duly executed this Security Agreement as of the day and year first above written. ARCH WIRELESS, INC. ARCH WIRELESS HOLDINGS, INC. ARCH WIRELESS COMMUNICATIONS, INC. ARCH CONNECTICUT VALLEY, INC. ARCH COMMUNICATIONS ENTERPRISES, LLC ARCHTEL, INC. MOBILEMEDIA COMMUNICATIONS, INC. MOBILE COMMUNICATIONS CORPORATION OF AMERICA MOBILEMEDIA LICENSE CO., L.L.C. BENBOW INVESTMENTS, INC. PAGING NETWORK, INC. PAGENET, INC. PAGING NETWORK FINANCE CORP. PAGING NETWORK INTERNATIONAL, INC. PAGING NETWORK OF AMERICA, INC. PAGING NETWORK OF COLORADO, INC. PAGING NETWORK OF MICHIGAN, INC. PAGING NETWORK OF NORTHERN CALIFORNIA, INC. PAGING NETWORK OF SAN FRANCISCO, INC. PAGING NETWORK CANADIAN HOLDINGS, INC. PAGENET SMR SUB, INC. AS TO EACH OF THE FOREGOING By: ----------------------------------- Name: --------------------------------- Title: -------------------------------- ARCH WIRELESS HOLDINGS, INC. SECURITY AGREEMENT THE BANK OF NEW YORK, as Collateral Agent By: ----------------------------------- Name: --------------------------------- Title: -------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----