EXHIBIT 4.3
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SERIES A PREFERRED STOCK PURCHASE AGREEMENT
AND
SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
BY AND AMONG
SATELLINK PAGING INC.
AND
THE SEVERAL PURCHASERS AND SECURITYHOLDERS
NAMED ON THE SIGNATURE PAGES HEREOF
Dated as of ________ __, 1990
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TABLE OF CONTENTS
Page
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SECTION 1. THE SERIES A SHARES .....................................
1.1 Issuance, Sale, and Delivery of
the Series A Shares ................................
1.2 Closing .................................................
SECTION 2. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY .....................................
2.1 Organization, Standing, and Qualifications ..............
2.2 Subsidiaries and other Equity Interests .................
2.3 Authorization of Agreements, Etc. .......................
2.4 Compliance with Other Instruments .......................
2.5 Authorized Capital Stock ................................
2.6 Litigation; Compliance with Law .........................
2.7 Proprietary Information of Third Parties ................
2.8 Title to Properties .....................................
2.9 Leasehold Interests .....................................
2.10 Loans and Advances ......................................
2.11 Governmental Approvals ..................................
2.12 Brokers .................................................
2.13 Transactions With Affiliates ............................
2.14 Financial Statements ....................................
2.15 Disclosure ..............................................
SECTION 3. REPRESENTATIONS AND WARRANTIES OF
THE PURCHASERS .....................................
3.1 Representations and Warranties by Purchaser .............
3.2 Legends .................................................
SECTION 4. CONDITIONS TO THE OBLIGATIONS OF
THE PURCHASERS .....................................
SECTION 5. CONDITIONS TO THE OBLIGATIONS OF
THE COMPANY ........................................
SECTION 6. COVENANTS OF THE COMPANY ................................
6.1 Financial and Technical Information .....................
6.2 Reserve for Conversion Shares ...........................
SECTION 7. AMENDMENT TO STOCKHOLDERS AGREEMENT .....................
7.1 Acknowledgement .........................................
7.2 Amendments ..............................................
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SECTION 8. MISCELLANEOUS ...........................................
8.1 Expenses ................................................
8.2 Survival Agreements .....................................
8.3 Finder's Fees ...........................................
8.4 Parties in Interest .....................................
8.5 Notices .................................................
8.6 Governing Law ...........................................
8.7 Entire Agreement ........................................
8.8 Counterparts ............................................
8.9 Amendments and Waivers ..................................
8.10 Severability ............................................
8.11 Titles and Subtitles ....................................
TABLE OF SCHEDULES
SCHEDULE I Schedule of Purchasers
SCHEDULE II Schedule of Exceptions
SCHEDULE III Investor Certification
TABLE OF EXHIBITS
EXHIBIT A Articles of Amendment
TABLE OF DEFINED TERMS
TERM DEFINED IN SECTION
Agreement Preamble
Class A Common Stock Recitals
Class B Common Stock 2.5
Closing 1.2
Closing Date 1.2
Common Stock 2.5
Company Preamble
Conversion Shares 2.3
Financial Statements 2.14
Preferred Stock 2.5
Purchased Securities 3.1
Purchasers Preamble
Securities Act 2.11
Securityholder Preamble
Series A Shares Recitals
Stockholders Agreement Recitals
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SERIES A PREFERRED STOCK PURCHASE AGREEMENT
AND
SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of ________ __, 1990
by and among SATELLINK PAGING INC., a Georgia corporation (the "Company"), the
several purchasers named on the signature pages hereof (individually a
"Purchaser" and collectively the "Purchasers"), and the several securityholders
of the Company (who are not purchasers) also named on the signature pages hereof
(individually a "Securityholder" and collectively the "Securityholders"). The
Securityholders are made parties to this Agreement with respect to the
provisions of Section 5 hereof only and shall not be entitled to the benefits of
any other provisions hereof.
W I T N E S E T H
WHEREAS, the Company wishes to issue and sell to the Purchasers up to an
aggregate of 7,500 shares of its preferred stock, $.01 par value, designated as
"Series A Convertible Preferred Stock" (the "Series A Shares"); and
WHEREAS, the Purchasers, severally and not jointly, wish to purchase the
Series A Shares on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the Company, certain of the Purchasers and the Securityholders
are also parties to the Stockholders Agreement dated as of August 1, 1988, as
amended by Debenture Purchase Agreement and Amendment to Stockholders Agreement
dated as of July 25, 1989 (such Stockholders Agreement, as amended, is
hereinafter referred to as the "Stockholders Agreement"), to make all of the
Purchasers, the Series A Shares and the shares of Class A common stock, $.01 par
value (the "Class A Common Stock") into which the Series A Shares are
convertible, subject to the Stockholders Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties hereby agree as follows:
SECTION 1.
THE SERIES A SHARES
1.1 Issuance, Sale, and Delivery of the Series A Shares. The Company has
authorized the sale and issuance of the Series A Shares to the Purchasers in
accordance with the terms of this
Agreement. The Company agrees to issue and sell to each Purchaser, and each
Purchaser hereby agrees to purchase from the Company, the number of Series A
Shares set forth opposite the name of such Purchaser under the heading "Number
of Series A Shares Purchased" on Schedule I, at a price of $100.00 per Series A
Share.
1.2 Closing. The closing of the purchase and sale of the Series A Shares
shall take place at the offices of Powell, Goldstein, Xxxxxx & Xxxxxx, Xxxxx
0000, 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx, 00000 at 10:00 a.m.,
Eastern Standard time, on _______ __, 1990, or at such other location, date, and
time as may be fixed by mutual agreement between the Purchasers and the company
(such closing being the "Closing" and the date the Closing actually occurs being
the "Closing Date"). At the Closing, the Company shall issue and deliver to each
Purchaser a certificate evidencing the number of Series A Shares set forth
adjacent to such Purchaser's name on Schedule I under the caption "Number of
Shares Purchased" in definitive form, registered in the name of such Purchaser,
against delivery by each Purchaser of the purchase consideration set forth
adjacent to such Purchaser's name on Schedule I under the caption "Purchase
Consideration," payable in such form and on such terms as described under such
caption.
SECTION 2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Purchaser that, except
as otherwise set forth in the Schedule of Exceptions attached hereto as Schedule
II (which Schedule of Exceptions makes explicit reference to the particular
representation or warranty as to which exception is taken, which in each case
shall constitute the sole representation and warranty as to which such exception
shall apply):
2.1 Organization, Standing, and Qualification. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Georgia and is duly qualified to transact business as a
foreign corporation and is in good standing in each state in which the nature of
the business transacted by it or the character of the properties owned or leased
by it requires such qualification. The Company has the requisite corporate power
and authority to own, lease, and operate its properties and assets, and to carry
on its business as presently conducted and as proposed to be conducted.
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2.2 subsidiaries and Other Equity Interests. The Company does not (i) own
of record or beneficially, directly, or indirectly, (A) any shares of capital
stock or securities convertible into capital stock of any corporation, or (B)
any participating interest in any partnership, joint venture, or other
non-corporate business enterprise or (ii) control, directly or indirectly, any
other entity.
2.3 Authorization of Agreements, Etc. All corporate action on the part of
the Company, its officers, directors, and stockholders necessary for the sale
and issuance of the Series A Shares, the issuance of the Class A Common Stock
issuable upon conversion of the Series A Shares (the "Conversion Shares"), and
the execution, delivery, and performance by the Company of this Agreement has
been duly and validly taken. This Agreement is the valid and binding obligation
of the Company enforceable against the Company in accordance with its terms
except as enforcement may limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other laws of general application relating to or
affecting enforcement of creditors' rights and to the exercise of judicial
discretion in accordance with general equitable principles.
2.4 Compliance With Other Instruments. The Company is not in violation of
or default under any provision of its Articles of Incorporation, as amended, or
Bylaws, or any provision of any indenture, contract, agreement, mortgage, deed
of trust, loan, commitment, judgment, decree, order, or obligation to which it
is a party or by which any of its properties or assets are bound, except for
violations or defaults which, individually or in the aggregate, do not and will
not have a material adverse effect on the operations, business or financial
condition of the Company. The execution and delivery by the Company of this
Agreement and the other documents and instruments contemplated hereby, the
performance by the Company of its obligations hereunder and thereunder, the
issuance, sale, and delivery of the Series A Shares and the Conversion Shares
will not result in any such violation, conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under any such
provision, require any consent or waiver under any such provision, or result in
the creation or imposition of any lien, charge, restriction, claim, or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Company.
2.5 Authorized Capital Stock. The authorized capital stock of the Company
will, immediately prior to the Closing, consist of 50,000 shares of Class A
Common Stock, of which 27,970.54 shares are validly issued and outstanding,
fully paid and nonassessable, 20,000 shares of Class B common stock, $.0l par
value ("Class B Common Stock"), of which 2,821.32 shares are validly issued and
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outstanding, fully paid and nonassessable (the Class A Common Stock and the
Class B Common Stock hereinafter sometimes referred to as the "Common Stock"),
and 30,000 shares of preferred stock, $.01 par value ("Preferred Stock")
(including 7,500 shares of Preferred Stock designated as Series A Shares), none
of which are issued and outstanding. The Conversion Shares have been duly and
validly reserved for issuance upon conversion of the Series A Shares and, when
so issued, will be duly authorized, validly issued, fully paid, and
nonassessable, and will be free of any liens or encumbrances created, or
imposed, by operation of law or otherwise, upon such shares, by the Company
except for certain restrictions on transfer under state and/or federal
securities laws as set forth herein or otherwise required by such laws at the
time a transfer is proposed. The designations, powers, preferences, rights,
qualifications, and limitations of the Series A Shares are as set forth in the
Company's Articles of Amendment, in substantially the form of Exhibit A hereto.
There are no outstanding rights, plans, options, warrants, conversion rights, or
agreements for the purchase or acquisition from the Company of any shares of the
capital stock of the Company, except that up to 5,650.01 shares of Class A
Common Stock have been reserved for issuance upon conversion of the Company's
outstanding 10% Convertible Debentures due June 30, 1992. Neither the issuance,
sale, or delivery of the Series A Shares nor the issuance or delivery of the
Conversion Shares is subject to any preemptive right of stockholders of the
Company or to any right of first refusal or other right in favor of any person
which has not been waived.
2.6 Litigation; Compliance with Law. There is no (i) action, suit, claim,
proceeding, or investigation pending or, to the best of the Company's knowledge,
threatened against or affecting the Company, at law or in equity, by or before
any Federal, state, municipal, or other governmental department, commission,
board, bureau, agency, or instrumentality, domestic or foreign, (ii) arbitration
proceeding relating to the Company pending under collective bargaining
agreements or otherwise, or (iii) governmental inquiry pending or, to the best
of the Company's knowledge, threatened against or affecting the Company
(including without limitation any inquiry as to the qualification of the Company
to hold or receive any license or permit), and there is no basis known to the
Company for any of the foregoing. The Company is not subject to any order, writ,
injunction, or decree known to or served upon the Company of any court or of any
Federal, state, municipal, or other governmental department, commission, board,
bureau, agency, or instrumentality, domestic or foreign. The Company is, to the
best of its knowledge, in material compliance with all laws, rules, regulations,
and orders applicable to the Company's business. There is no existing law, rule,
regulation, or order nor is the Company aware of any
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proposed law, rule, regulation, or order, whether Federal or state, which would
prohibit or restrict the Company from, or otherwise materially adversely affect
the Company in, conducting its business in any jurisdiction in which it is now
conducting business or in which it proposes to conduct business.
2.7 Title to Properties. The Company has good and marketable title to all
the tangible properties and assets owned by it, free and clear of all mortgages,
pledges, security interests, liens, charges, claims, restrictions, and other
encumbrances, except liens for current taxes not yet due and payable and minor
imperfections of title, if any, not material in nature or amount and not
materially detracting from the value or impairing the use of the property
subject thereto or impairing the operations or proposed operations of the
Company. The Company owns or leases all tangible properties and assets necessary
to the operation of its business as now conducted.
2.8 Leasehold Interests. Each lease or agreement to which the Company is a
party under which it is a lessee of any property, real or personal, is a valid
and subsisting agreement without any default of the Company thereunder and, to
the best of the Company's knowledge, without any default thereunder of any other
party thereto. No event has occurred and is continuing which, with due notice or
lapse of time or both, would constitute a default or event of default by the
Company under any such lease or agreement or, to the best of the Company's
knowledge, by any other party thereto. The Company's possession of such property
has not been disturbed and, to the best of the Company's knowledge, no claim has
been asserted against the Company adverse to its rights in such leasehold
interests.
2.9 Loans and Advances. Except as reflected in the Financial Statements
(as hereinafter defined), the Company does not have any outstanding loans or
advances to any person and is not obligated to make any such loans or advances,
except for advances to employees of the Company in respect of reimbursable
business expenses anticipated to be incurred by them in - -connection with
performance of services for the Company.
2.10 Governmental Approvals. Subject to the accuracy of the
representations and warranties of the Purchasers set forth in Section 3 hereof,
no registration, qualification, or filing with, or consent or approval of or
other action by, any Federal, state, or other governmental agency or
instrumentality is or will be necessary for the valid execution, delivery, and
performance by the Company of this Agreement, the offer, issuance, sale, and
delivery of the Series A Shares, the issuance and delivery of the Conversion
Shares, or the consummation of any other transaction contemplated hereby, other
than filings pursuant to state
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securities laws (all of which filings have been made or will be made within the
applicable time frame for such filings) in connection with the offer and sale of
the Series A Shares, and the filing of a notice under Regulation D under the
Securities Act of 1933, as amended (the "Securities Act").
2.11 Brokers. The Company has no contract, arrangement, or understanding
with any broker, finder, or similar agent with respect to the transactions
contemplated by this Agreement.
2.12 Financial Statements. The Company's financial statements (consisting
of an unaudited balance sheet and unaudited statements of operations,
stockholders' deficiency, and cash flows) for the period from __________, 19__
(inception) to __________, 19__ (together the "Financial Statements") have been
furnished to Purchasers. The Financial Statements are true, correct, and
complete in all material respects and have been prepared in accordance with
generally accepted accounting principles consistently applied, are in accordance
with the books and records of the Company, and present fairly the financial
position of the Company as of the dates, and for the periods indicated, with the
unaudited financial statements being subject to normal year-end audit
adjustments.
2.13 Disclosure. Neither this Agreement nor any Schedule or Exhibit hereto
contains any untrue statement of a material fact or omits a material fact
necessary to make the statements contained herein or therein not misleading.
None of the statements, documents, certificates, or other items prepared or
supplied by the Company with respect to the transactions contemplated hereby
contains an untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein not misleading. There is no
material fact which the Company has not disclosed to the Purchasers and of which
the Company is aware which materially and adversely affects or could materially
and adversely affect the business, prospects, financial condition, operations,
property, or affairs of the Company.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
3.1 Representations and Warranties by Purchasers. Each Purchaser
acknowledges that the Series A Shares and the Conversion Shares (the "Purchased
Securities") have not been registered under the Securities Act, and are being
offered and sold pursuant to an exemption from registration contained in the
Securities Act based in part upon the representations of the
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Purchasers contained herein. Each Purchaser represents and warrants to the
Company, severally and not jointly, and only as to itself that:
(a) The Purchased Securities are being acquired for Purchaser's own
account, for investment and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act or the securities laws of any other state applicable to
Purchaser.
(b) During the negotiation of the transactions contemplated hereby,
Purchaser and its representatives have been afforded full and free access to
corporate books, records, contracts, documents, and other information concerning
the Company and to offices and facilities of the Company, have been afforded an
opportunity to ask such questions of the Company's officers, employees, agents,
accountants, and representatives concerning the Company's business, operations,
financial condition, assets, liabilities, and other relevant matters as they
have deemed necessary or desirable, and have been given all such information as
has been requested, in order to evaluate the merits and risks of the prospective
investments contemplated herein.
(c) Purchaser and Purchaser's representatives have been solely
responsible for Purchaser's own "due diligence" investigation of the Company and
the Company's management and business, for Purchaser's own analysis of the
merits and risks of this investment, and for Purchaser's own analysis of the
fairness and desirability of the terms of the investment. In taking any. action
or performing any role relative to the arranging of the proposed investment,
Purchaser has acted solely in Purchaser's own interest and not as an agent of
the Company. Purchaser has such knowledge and experience in financial and
business matters that Purchaser is capable of evaluating the merits and risks of
the purchase of the Purchased Securities pursuant to the terms of this Agreement
and of protecting Purchaser's interests in connection therewith.
(d) Purchaser is able to bear the economic risk of the purchase of
the Purchased Securities pursuant to the terms of this Agreement, including a
complete loss of Purchaser's investment in the Purchased Securities.
(e) Purchaser acknowledges that (i) the Purchased Securities have
not been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act,
(ii) the Purchased Securities must be held indefinitely unless a subsequent
disposition thereof is registered under the Securities
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Act or is exempt from such registration, (iii) the Purchased Securities will
bear legends to such effect, (iv) the Company will make a notation on its
transfer books to such effect, and (v) the Company is under no obligation to
register any of the Purchased Securities under the Securities Act or any state
securities laws.
(f) Purchaser has furnished the Company with an Investor
Certification in substantially the form of Schedule III hereto and the
information set forth thereon with respect to Purchaser's organization and its
principal office or its principal residence, as the case may be, and Purchaser's
status as an accredited investor is true and correct.
(g) Purchaser has the full right, power, authority, and capacity to
enter into and perform Purchaser's obligations under this Agreement, and this
Agreement constitutes a valid and binding obligation of Purchaser enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other laws of general application
relating to or affecting enforcement of creditors' rights and rules or laws
concerning equitable remedies.
(h) Purchaser knows of no public solicitations or advertisements in
connection with the offer and sale of the Purchased Securities.
3.2 Legends. Purchaser acknowledges that each certificate representing the
Purchased Securities may be endorsed with the legend required by Section 6 of
the Stockholders Agreement and the following legend and Purchaser shall not make
any transfer of the Purchased Securities without first complying with the
restrictions on transfer described in such legends:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION UNDER SUCH ACT OR SUCH APPLICABLE STATE SECURITIES LAWS
COVERING SUCH SECURITIES OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES, REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH APPLICABLE STATE SECURITIES LAWS.
Purchaser agrees that the Company may also endorse any other legends required by
applicable state securities laws.
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The Company need not register a transfer of the Purchased Securities, and may
also instruct its transfer agent not to register the transfer of the Purchased
Securities, unless the conditions specified in the foregoing legends are
satisfied.
SECTION 4.
CONDITIONS TO THE OBLIGATIONS
OF THE PURCHASERS
The obligation of each Purchaser to purchase the Series A Shares being
purchased by it on the Closing Date is, at its option, subject to the
satisfaction or waiver on or before the Closing Date of the following
conditions:
(a) Representations and Warranties to be True and Correct. The
representations and warranties contained in Section 2 hereof shall be true,
complete, and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such date.
(b) Performance. The Company shall have performed and complied with
all covenants and agreements contained herein required to be performed or
complied with by it prior to or at the Closing Date.
(c) Consents and Waivers. The Company shall have obtained any and
all consents, permits, and waivers and made all filings necessary or appropriate
for the consummation of the transactions contemplated hereby.
(d) Supporting Documents. The Purchasers shall have received copies
of the following documents:
(i) (A) the Articles of Incorporation of the Company, as
amended, certified as of a recent date by the Secretary of State of the State of
Georgia, and (B) a certificate of said Secretary dated as of a recent date as to
the due incorporation and good standing of the Company, the payment of all
franchise taxes by the Company, and listing all documents of the Company on file
with said Secretary;
(ii) a certificate of the Secretary or an Assistant Secretary
of the Company dated the Closing Date certifying: (A) that attached thereto is a
true and complete copy of the Bylaws of the Company as in effect on the date of
such certification; (B) that attached thereto is a true and complete copy of all
resolutions adopted by the Board of Directors and/or the stockholders of the
Company authorizing the
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execution, delivery, and performance of this Agreement, the issuance, sale, and
delivery of the Series A Shares and the reservation, issuance and delivery of
the Conversion Shares and that all such resolutions are in full force and
effect, and are all the resolutions adopted in connection with the foregoing
agreements and the transactions contemplated thereby; (C) that the Articles of
Incorporation have not been amended since the date of the last amendment
referred to in the certificate delivered pursuant to clause (i)(B) above; and
(D) to the incumbency and specimen signature of each officer of the Company
executing this Agreement, and any certificate or instrument furnished pursuant
hereto, and a certification by another officer of the Company as to the
incumbency and signature of the officer signing the certificate referred to in
this clause (ii); and
(iii) such additional supporting documents and other
information with respect to the operations and affairs of the Company as the
Purchasers reasonably may request.
(e) Compliance Certificate. On the Closing Date, the Company shall
have delivered to Purchasers a certificate, executed by the President of the
Company, dated the Closing Date, certifying to the fulfillment of the conditions
specified in subsections (a), (b) and (c) of this Section 4.
(f) All Proceedings to be Satisfactory. All corporate and other
proceedings to be taken by the Company in connection with the transactions
contemplated hereby and all documents relating to such transactions shall be
satisfactory in form and substance to the Purchasers, and the Purchasers have
received all such counterpart originals or certified or other copies of such
documents as they reasonably may request.
SECTION 5.
CONDITIONS TO THE OBLIGATIONS
OF THE COMPANY
The obligation of the Company to issue and sell the Series A Shares to the
Purchasers on the Closing Date is, at its option, subject to the satisfaction or
waiver, on or before the Closing Date, of the following conditions:
(a) Representations and Warranties to be True and Correct. All
representations and warranties of the Purchasers, and each of them, contained in
Section 3 hereof shall be true and correct on the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date.
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(b) All Proceedings to be Satisfactory. All corporate and other
proceedings to be taken by the Purchasers in connection with the transactions
contemplated hereby, and all documents incidental thereto, shall be satisfactory
in form and substance to the Company.
SECTION 6.
RESERVATION OF CONVERSION SHARES
The Company covenants and agrees with each of the Purchasers that, unless
waived in accordance with Section 9.9 hereof, so long as any of the Series A
Shares or Conversion Shares is outstanding the Company shall at all times
reserve and keep available out of its authorized but unissued shares of Class A
Common Stock, for the purpose of effecting the conversion of the Series A Shares
and otherwise complying with the terms of this Agreement. If at any time the
number of authorized but unissued shares of Class A Common Stock shall not be
sufficient to effect the conversion of the Series A Shares or otherwise fail to
comply with the terms of this Agreement, the Company will forthwith take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes.
SECTION 7.
AMENDMENT TO STOCKHOLDERS AGREEMENT
7.1 Acknowledgement. All of the parties hereto acknowledge and agree that
the preemptive rights accorded to the Stockholders (as defined in the
Stockholders Agreement) pursuant to Section 4 of the Stockholders Agreement are
not applicable to the sale of Series A Shares or the issuance of Class A Common
Stock of the Company upon conversion thereof, inasmuch as the minimum conversion
price under the Series A Shares is greater than $66.227 per share.
[Nevertheless, it is hereby acknowledged that Series A Shares have been
initially offered to the Stockholders in proportion to their respective
percentage equity interest in the Company.]
7.2 Amendments. The Stockholders Agreement is hereby amended as follows:
(a) Each of the Series A Shares purchased or to be purchased
pursuant hereto is hereby made subject to all of the
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options and restrictions set forth in Section 1 of the Stockholders Agreement.
[(b) In the event any option referred to in Section 1 of the
Stockholders Agreement shall become exercisable with respect to any Series A
Shares, the price payable by the Company or the purchasing Stockholders, as the
case may be, for such Series A Shares shall be $100.00 plus accrued and unpaid
dividends thereon and the amount of the cumulative liquidation preference to the
date of payment; and such price is expressly agreed to be applicable even in the
case of a proposed third-party sale as described in Section 1(a)(ii) of the
Stockholders Agreement. Because there is no need to determine the option price
of a Series A Share by appraisal, it is hereby acknowledged and agreed that the
periods for exercise of the options provided in Section 1 of the Stockholders
Agreement in the case of Series A Shares shall be 30 days for the Company's
initial repurchase option, followed by an additional 30 days for the options of
the other Stockholders, if applicable. All such periods shall begin on their
respective dates as provided in the Stockholders Agreement, and, in the case of
a Purchaser's death, shall be subject to tolling as provided in the Stockholders
Agreement pending the appointment of the deceased Purchaser's personal
representative.]
(c) Once any option described in Section 1 of the Stockholders
Agreement becomes applicable to any Series A Shares, the holder's right to
convert such Series A Shares shall be suspended until either the option has been
exercised and the Series A Shares have been purchased thereunder, or all option
periods described in the Stockholders Agreement have expired without exercise of
any applicable option. Upon the exercise of such an option and the purchase of
such Series A Shares, or upon the expiration of all applicable option periods,
any conversion rights then applicable to such Series A Shares shall again be
exercisable by the then holder of such Series A Shares.
(d) In addition to the restrictions and conditions set forth in the
Stockholders Agreement, it is further agreed that a Purchaser may transfer any
Series A Shares (or any Conversion Shares) to a third party if and only if,
prior to the consummation of any such transfer, in addition to complying with
any applicable warranties contained in Section 3 hereof, the transferring
Purchaser shall obtain the written agreement of such transferee that the
transferee will be bound by, and the Series A Shares or Conversion Shares
transferred will be subject to, this Agreement and the Stockholders Agreement.
Such written agreement shall be attached as an addendum to this Agreement and
the Stockholders Agreement and shall thereby be incorporated as a part of this
Agreement and the Stockholders Agreement, whereupon
-12-
such transferee shall have adopted this Agreement and the Stockholders
Agreement, and thereafter shall be a party hereto and thereto, and the term
"Stockholder" as used in the Stockholders Agreement shall thereafter mean and
include such transferee. The Company shall not give effect on its books to any
transfer or purported transfer of Series A Shares or Conversion Shares held or
owned by a Purchaser to any person unless each and all of the conditions hereof
affecting such transfer shall have been satisfied.
SECTION 8.
MISCELLANEOUS
8.1 Expenses. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby, whether or not such transactions
shall be consummated.
8.2 Survival of Agreements. All covenants, agreements, representations,
and warranties made herein or in any certificate or instrument delivered to the
Purchasers pursuant to or in connection with this Agreement shall survive the
execution and delivery of this Agreement, and the Closing of the transactions
contemplated hereby.
8.3 Finder's Fees.
(a) The Company (i) represents and warrants that it has retained no
finder or broker, in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold Purchasers harmless of
and from any liability for any commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which the
Company, or any of its employees or representatives, is responsible.
(b) Each Purchaser (i) represents and warrants that it has retained
no finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and hold the Company harmless of
and from any liability for any commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which Purchaser,
or any of Purchaser's employees or representatives, is responsible.
8.4 Parties in Interest. All representations, covenants, and agreements
contained in this Agreement shall bind and inure
-13-
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. Without limiting the generality of the foregoing,
all representations, covenants, and agreements benefiting the Purchasers shall
inure to the benefit of any and all subsequent holders from time to time of the
Series A Shares or Conversion Shares.
8.5 Notices. Every notice or other communication required or contemplated
by this Agreement by any party shall be delivered either by (a) personal
delivery, (b) postage prepaid return receipt requested certified mail (airmail
if available), or the equivalent of certified mail under the laws of the country
where mailed, (c) facsimile transmission or (d) "tested" telex (a telex for
which the proper answer back has been received) addressed to the party for whom
intended as follows:
If to a Securityholder, at the address of such Securityholder set forth in
the Stockholders Agreement.
If to a Purchaser, at the address of such Purchaser set forth in Schedule
I hereof.
If to the Company, at Satellink Paging Inc., 00 Xxxxxxxxx Xxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx, Attn: Xxxx X. Xxxxxxx, President, Telecopier:
(000) 000-0000; with a copy (which shall not constitute notice) to: Xxxxxx X.
Xxxxxx, Esq., Powell, Goldstein, Xxxxxx & Xxxxxx, 000 Xxxxxxxxx Xxxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx, 00000, Telecopier: (000) 000-0000.
or at such other address as the intended recipient previously shall have
designated by written notice to the other parties. Notice by certified mail
shall be effective on the date it is officially recorded as delivered to the
intended recipient by return receipt or equivalent. All notices and other
communications required or contemplated by this Agreement delivered in person or
sent by facsimile transmission or "tested" telex shall be deemed to have been
delivered to and received by the addressee and shall be effective on the date of
personal delivery or on the date sent, respectively. Notice not given in writing
shall be effective only if acknowledged in writing by a duly authorized
representative of the party to whom it was given.
8.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
8.7 Entire Agreement. This Agreement, including the Schedules and Exhibits
hereto, and the other documents delivered pursuant hereto constitute the full
and entire agreement of the parties with respect to the subject matter hereof
and thereof.
-14-
No representations or statements of any kind made be any representative of
either party which are not stated herein shall be binding. No course of dealing
or usage of trade or course of performance shall be relevant to explain or
supplement any term expressed in this Agreement.
8.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.9 Amendments and Waivers. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, or terminated orally, but only by a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, except that parties may be
added to this Agreement as provided in Section 6.02(d) hereof by written
instrument executed by the party to be added to this Agreement as provided in
that Section.
8.10 Severability. If any provision of this Agreement shall be declared
void or unenforceable by any judicial or administrative authority, to the extent
possible, it shall be construed in such manner as to be valid, legal, and
enforceable but so as to most nearly retain the intent of the parties and, if
such construction is not possible, such provision shall be severed from this
Agreement, and in either case, the validity and enforceability of any other
provision and of the entire Agreement shall not be affected thereby.
8.11 Titles and Subtitles. The title and subtitles used in this Agreement
are for convenience only and are not to be considered in construing or
interpreting any term or provision of this Agreement.
IN WITNESS WHEREOF, the Company and the Purchasers have executed
this Agreement as of the day and year first above written.
SATELLINK PAGING INC.
(Corporate Seal) By: ______________________________
Xxxx X. Xxxxxxx, President
Attest:
______________________________
Secretary
[Signatures Continued on Next Page]
-15-
[Signatures Continued From Preceding Page]
PURCHASERS:
______________________________
______________________________
NON-PURCHASER
SECURITYHOLDERS:
______________________________
______________________________
______________________________
-16-
SCHEDULE I
TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
AND SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
dated _______________, 1990
Schedule of Purchasers
Purchaser Name Number of Shares Purchase
and Address Purchased Consideration
----------- --------- -------------
Xxxx X. Xxxxxxx _____________ Cancellation of
Satellink Paging Inc. demand promissory
12 Perimeter Center East note in the principal
Suite 1200 amount of $__________
Xxxxxxx, XX 00000 (accrued interest to
Closing Date: $____)
Xxxxx X. Xxxxxxxx _____________ Cancellation of
Satellink Paging Inc. demand promissory
12 Perimeter Center East note in the principal
Suite 1200 amount of $__________
Xxxxxxx, XX 00000 (accrued interest to
Closing Date: $____)
Totals _____________ _____________
$
============= =============
Schedule I to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
I-1
SCHEDULE II
TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
AND SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
dated ___________, 1990
Schedule of Exceptions
Affected
Section Description of Exception or Qualification
-------- -----------------------------------------
2.8 [CUE and Xxxxxxxx Security Interests]
Schedule II to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
II-1
SCHEDULE III
TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
AND SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
dated __________, 1990
Investor Certification
ALL INFORMATION FURNISHED IS FOR THE SOLE USE OF SATELLINK PAGING INC. (THE
"COMPANY") AND ITS COUNSEL AND WILL BE HELD IN CONFIDENCE BY THE COMPANY AND ITS
COUNSEL, EXCEPT THAT THIS QUESTIONNAIRE MAY BE FURNISHED TO SUCH PARTIES AS THE
COMPANY AND COUNSEL DEEM NECESSARY TO ESTABLISH COMPLIANCE WITH FEDERAL OR STATE
SECURITIES LAWS OR TO THE EXTENT REQUIRED BY LAW. CAPITALIZED TERMS NOT DEFINED
HEREIN HAVE THE MEANINGS ASCRIBED IN THE SERIES A PREFERRED STOCK PURCHASE
AGREEMENT AND SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT DATED ____________,
1990.
The Series A Shares being offered by the Company are not registered under the
Securities Act of 1933, as amended (the "Act"), in reliance upon certain
exemptions from registration provided by the Act. One of the exemptions being
relied upon is provided by Regulation D of the Securities and Exchange
Commission. Regulation D requires, among other things, that prior to making a
sale of any shares of Series A Shares, the Company must have reasonable grounds
to believe, and shall believe after reasonable inquiry, that the offeree is an
"accredited investor" (as defined). The Company intends to limit the purchase of
the Series A Shares to accredited investors [AND UP TO 35 NON-ACCREDITED
INVESTORS?]. In order to obtain the facts needed to determine whether the
Company may accept a purchaser's investment, it is necessary for the purchaser
(the "Purchaser") to complete this Investor Certification. The form should be
signed, dated, and forwarded to the Company.
* * * * * * * * * * * *
Schedule III to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
III-1
Answer all questions. Write "N/A" if not applicable.
* * * * * * * * * * * *
A. PLEASE PROVIDE THE FOLLOWING INFORMATION.
1. (a) Name of Purchaser:
____________________________________________________________________
(b) If Purchaser is a corporation, partnership, trust or other entity,
state the name of individual(s) making the investment decision on behalf of the
entity:
____________________________________________________________________
____________________________________________________________________
2. (a) Purchaser's Address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. Telephone/Number: (___)___________________________________________________
4. Taxpayer Identification Number of Purchaser: _____________________________
5. Date of organization or incorporation: ___________________________________
B. THE FOLLOWING INFORMATION IS TO BE PROVIDED SO THAT THE COMPANY CAN
DETERMINE IF THE PURCHASER IS AN ACCREDITED INVESTOR.
Please indicate, by initialing, one or more of the following categories
which are applicable to you. If no category is applicable, please initial
Item 18.
Under Regulation D, an "accredited investor" is defined as any person who
comes within any of the following categories, or who the issuer reasonably
believes comes within any of the following categories, at the time of the sale
of the securities to that person:
1. _______ A bank as defined in Section 3(a) (2) of the Act
Schedule III to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
III-2
whether acting in its individual or fiduciary capacity.
2. _______ A savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity.
3. _______ A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
4. _______ An insurance company as defined in Section 2(13) of the Act.
5. _______ An investment company registered under the Investment Company
Act of 1940.
6. _______ A business development company as defined in Section 2(a)(48)
of the Investment Company Act of 1940 [a closed-end company,
operated for the purpose of investing in securities described
in Section 55(a)(l)-(3) of such Act and makes available
"significant managerial assistance" with respect to the
issuers of such securities and has elected to be regulated
pursuant to Sections 55-65 of such Act as a business
development company].
7. _______ A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
8. _______ A plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or
its political subdivisions, for the benefit of its employees,
if such plan has total assets in excess of $5,000,000.
9. _______ An employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 ("ERISA"), (a) if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which is either a bank, savings and
loan association, insurance company, or registered investment
adviser, or (b) if the employee benefit plan has total assets
in excess
Schedule III to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
III-3
of $5,000,000, or (c) if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors.
10. _______ A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940 [a company
which is a business development company but which need not be
closed-end and need not elect to be subject to regulation
under Sections 55-65 of the Investment Company Act of 1940].
11. _______ An organization described in Section 501(c)(3) of the Internal
Revenue Code, with total assets in excess of $5,000,000 not
formed for the specific purpose of acquiring the securities
offered.
12. _______ A corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring
the securities offered, with total assets in excess of
$5,000,000.
13. _______ A director or executive officer of the Company. (An "executive
officer" means the president, any vice president in charge of
a principal business unit, division or function (such as
sales, administration or finance), any other officer who
performs a policy making function, or any other person who
performs similar policy making functions for the Company.)
14. _______ A natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase
exceeds $1,000,000.
[For purposes of calculating net worth, any assets may be
considered including the fair market value of one's principal
residence and automobiles. The principal residence owned by an
individual should be valued either at (A) cost, including the
cost of improvements, net of current encumbrances upon the
property, or (B) the appraised value of the property as
determined upon a recent written appraisal used by an
institutional lender making a loan secured by the property,
including the cost of subsequent improvements, net of current
encumbrances upon the property.]
Schedule III to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
III-4
15. _______ A natural person who had an individual income (not including
income of spouse) in excess of $200,000 in each of the two
most recent years (1988 and 1989) or joint income with that
person's spouse in excess of $300,000 in each of those years
and who reasonably expects to reach the same income level in
the current year (1990).
["Income" may include amounts normally excluded from "adjusted
gross income" such as any amounts attributable to tax exempt
income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion,
contributions to an XXX or Xxxxx retirement plan, alimony
payments, and any amount by which income from long-term
capital gains has been reduced in arriving at adjusted gross
income. However, "income" is not necessarily synonymous with
"revenue"; for example, a self-employed person should deduct
operating expenses to give an accurate indication of income.]
16. _______ A trust, with total assets in excess of $5,000,000 not formed
for the specific purpose of acquiring the securities offered,
whose purchase is directed by a sophisticated person is
described in Rule 506(b)(2)(ii) under the Act.
17. _______ An entity in which all of the equity owners meet the
requirements of Items B1, B2, B3, B4, B5, B6, B7, B8, B9, B10,
B11, B12, B13 or B14 and/or B15 immediately above. (If this
item is checked, complete the "Accredited Investor
Certificate" below.)
18. _______ Check here if none of the above are applicable.
Schedule III to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
III-5
C. THE FOLLOWING INFORMATION IS TO BE PROVIDED BY PURCHASERS WHO ARE
INDIVIDUALS, OR BY THE PERSON MAKING THE INVESTMENT DECISION ON BEHALF OF
CORPORATIONS, PARTNERSHIPS, TRUSTS, OR OTHER ENTITIES.
1. Are you aware of the fact that you have the opportunity to question a
representative of the Company about this investment, the Company, the
Company's properties, the Company's operations and the Company's methods
of doing business?
________ ________
Yes No
2. (a) Do you understand the merits and risks associated with investments in
closely-held companies?
________ ________
Yes No
(b) Do you understand the merits and risks associated with an investment
in the Company?
________ ________
Yes No
3. Do you understand that there is no guarantee of any financial return on
this investment and that you run the risk of losing your entire
investment?
________ ________
Yes No
4. Do you understand that this investment is illiquid?
________ ________
Yes No
5. Do you understand that you may purchase an interest in the Company for
investment only, and not with a view to the sale or other distribution
thereof?
________ ________
Yes No
Schedule III to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
III-6
SIGNATURE
The undersigned hereby represents to the Company that (a) the information
contained herein is complete and accurate and may be relied upon by the Company,
(b) the Company will be notified by the undersigned of any material adverse
change in any of the information contained herein occurring prior to the
purchase of the Series A Shares, (c) the undersigned has received or had access
to all material information enabling the undersigned to make an informed
investment decision and that all information requested has been furnished to the
undersigned.
_______________________________________________
Name of Purchaser (please print)
By: _______________________
Title: ____________________
Executed at ___________________________________________, _______________________
on this _____ day of ____________, 19___.
Schedule III to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
III-7
EXHIBIT A
TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
AND SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
dated ___________, 1990
Articles of Amendment
Exhibit A to Series A Preferred Stock Purchase Agreement
and Second Amendment to Stockholders Agreement
A-l
PGFM DRAFT 9/28/90
EXHIBIT A
TO
SERIES A STOCK PURCHASE AGREEMENT
AND SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
FORM OF
ARTICLES OF AMENDMENT
OF
SATELLINK PAGING INC.
1. The name of the corporation is Satellink Paging Inc.
2. The date of incorporation was June 2, 1988.
3. Effective upon the filing hereof with the Secretary of State of
Georgia, the Articles of Incorporation of Satellink Paging Inc. shall be amended
by deleting Article V thereof in its entirety and in lieu thereof inserting the
following:
V
A. Authorized Capitalization. The total number of shares of capital
stock that the corporation shall be authorized to issue is One
Hundred Thousand (100,000) divided into three classes as follows:
(a) Fifty Thousand (50,000) shares of Class A common stock, $.01 par
value ("Class A Common Stock"), (b) Twenty Thousand (20,000) shares
of Class B common stock, $.0l par value ("Class B Common Stock"),
and (c) Thirty Thousand (30,000) shares of preferred stock, $.01 par
value ("Preferred Stock").
B. Common Stock. The shares of Class A Common Stock shall have
unlimited voting rights. The holders of shares of Class A Common
Stock shall be entitled to one vote per share in all proceedings in
which action may be or is required to be taken by the shareholders
of the corporation. The shares of Class A Common Stock and the Class
B Common Stock (together, "Common Stock") shall be identical in all
respects and for all purposes except that the holders of shares of
Class B Common Stock shall not be entitled to vote except with
respect to those matters as to which the Georgia Business
Corporation Code expressly
Exhibit A
A-1
confers voting rights upon non-voting shares. Each share of Common
Stock shall be entitled to participate equally in all dividends
payable with respect to the Common Stock as, if, and when declared
by the Board of Directors of the corporation, subject to any
dividend preferences of the Preferred Stock then outstanding, and
share ratably in all assets of the corporation in the event of any
voluntary or involuntary liquidation, dissolution, or winding up of
the affairs of the corporation or upon any distribution of the
assets of the corporation, subject to any liquidation preferences of
the Preferred Stock then outstanding.
C. Preferred Stock. Subject to the provisions of the Articles of
Incorporation and to the provisions of the Georgia Business
Corporation Code, as it exists now or as hereafter may be amended,
the Board of Directors of the corporation may determine the
preferences, limitations, and relative rights of any series of
Preferred Stock and may designate the number of shares within that
series prior to the issuance of any shares of that series.
D. Series A Convertible Preferred Stock. The authorized shares of
Preferred Stock of the corporation shall include a series designated
as Series A Convertible Preferred Stock (the "Series A Preferred
Stock") which shall consist of Seven Thousand Five Hundred (7,500)
shares. The rights, preferences, privileges, and restrictions
granted to and imposed upon the Series A Preferred Stock are:
(1) Voting. The holders of shares of Series A Preferred Stock
shall be entitled to vote on all matters submitted to a vote
of the shareholders of the corporation, voting together with
the holders of Class A Common Stock as one class. Each share
of Series A Preferred Stock shall be entitled to the number of
votes equal to the number of shares of Class A Common Stock
into which such share of Series A Preferred Stock could be
converted on the record date for determining the shareholders
entitled to vote, rounded to the nearest hundredth of a vote;
it being understood that whenever the Conversion Price (as
hereinafter defined) is adjusted as provided in paragraph (5)
of this Article V.D., the voting rights of the Series A
Preferred Stock shall also be similarly adjusted.
Exhibit A
A-2
Except as required by law or set forth in this paragraph (1)
of this Article V.D., the shares of Series A Preferred Stock
shall have no special voting rights and their consent shall
not be required for the taking of any corporate action.
(2) Dividends. The holders of shares of Series A Preferred Stock
shall be entitled to receive out of funds legally available
therefor and before any cash, stock, or other dividend is
declared or paid with respect to any class or series of Common
Stock or any other class or series of capital stock of the
Company, whether now existing or hereafter issued, when, as,
and if declared by the Board of Directors, dividends at the
rate per annum of $12.00 per share payable annually on
November 15 (or, if such date is not a business day, on the
business day immediately following such date) commencing on
November 15, 1991, to holders of record on the 10th business
day preceding the dividend payment date. Commencing on the
date of original issuance of the shares of Series A Preferred
Stock (the "Original Issue Date"), dividends shall accrue from
day to day, whether or not earned or declared, and shall be
cumulative; provided, however, that except as provided in
paragraphs (3) and (11) of this Article V.D., the corporation
shall be under no obligation to pay dividends unless and until
declared by the Board of Directors. Dividends accrued on
shares of Series A Preferred Stock for any period less than a
full annual period between dividend payment dates (or, in the
case of the first dividend payment, from the Original Issue
Date through the first dividend payment date) shall be
computed on the basis of a 360-day year of 30-day months.
Accrued but unpaid dividends shall accumulate as of the
dividend payment date on which they first become payable, but
no interest shall accrue or be payable on accumulated but
unpaid dividends. Any partial payment of then accrued
dividends on shares of Series A Preferred Stock shall be made
pro rata.
(3) Liquidation. Upon any liquidation, dissolution, or winding up
of the corporation, whether voluntary or involuntary, the
holders of shares of Series A
Exhibit A
A-3
Preferred Stock shall be entitled to receive, out of the
assets or funds of the corporation which remain after
satisfaction in full of all valid claims of creditors and
which are available for distribution to shareholders, and
prior to and in preference of any distribution or payment of
any such assets or funds of the corporation to the holders of
shares of Common Stock or of any class or series of capital
stock of the corporation, whether now existing or hereafter
created, a liquidation payment in an amount per share equal to
$100.00, plus an amount equal to all dividends accrued but
unpaid thereon (whether or not declared) to the date payment
thereof is made available to holders of shares of Series A
Preferred Stock, plus a cumulative liquidation premium at the
rate of $38.00 per share per annum accruing from the Original
Issue Date to the date payment is made available to holders of
shares of Series A Preferred Stock, computed on the basis of a
360-day year of 30-day months; provided, however, that if the
liquidation, dissolution, or winding up of the corporation,
whether voluntary or involuntary, occurs following the fifth
anniversary of the Original Issue Date, the liquidation
premium shall be $190.00 per share. The amount payable with
respect to a share of Series A Preferred Stock pursuant to
this paragraph (3) of this Article V.D. upon the liquidation,
dissolution or winding up of the corporation, whether
voluntary or involuntary, is hereinafter referred to as the
"Liquidation Payment". If upon the liquidation, dissolution,
or winding up of the corporation, whether voluntary or
involuntary, the assets or funds which remain after
satisfaction in full of all valid claims of creditors and
which are available for distribution to the holders of shares
of Series A Preferred Stock shall be insufficient to permit
payment to the holders of shares of Series A Preferred Stock
of the full amounts of their Liquidation Payments, then the
assets or funds of the corporation available for such
distribution shall be distributed pro rata among the holders
of shares of Series A Preferred Stock then outstanding based
on the number of shares of Series A Preferred Stock held by
each. After the holders of Series A Preferred Stock have been
paid in full their Liquidation Payments, the remaining assets
or funds of the corporation, if any, may be
Exhibit A
A-4
distributed to the holders of stock ranking on liquidation
junior to the Series A Preferred Stock. Written notice of the
liquidation, dissolution, or winding up of the corporation,
whether voluntary or involuntary, stating a payment date, the
amount of the Liquidation Payment per share, and the place
where Liquidation Payments shall be payable, shall be given by
mail, postage prepaid not less than twenty (20) days prior to
the payment date stated therein, to the holders of record of
shares of Series A Preferred Stock, such notice to be
addressed to each such holder at his or its address as shown
by the records of the corporation. A consolidation or merger
of the corporation into or with any other entity or entities
or a sale, lease, exchange, or transfer by the corporation of
all or any part of its assets which shall not in fact result
in the liquidation (in whole or in part) of the corporation,
and the distribution of its assets to its shareholders, shall
be deemed to be a liquidation, dissolution, or winding up of
the corporation within the meaning of the provisions of this
paragraph (3) of this Article V.D.
(4) Conversion. The holders of shares of Series A Preferred Stock
shall have the following conversion rights:
(a) Right to Convert. Subject to the terms and conditions of
this paragraph (4) of this Article V.D., each share of
Series A Preferred Stock shall be convertible, at the
option of the holder thereof, at any time after the date
of issuance of such share, into fully paid and
nonassessable shares of Class A Common Stock initially
at a conversion price equal to $100.00 per share of
Class A Common Stock, with each share of Series A
Preferred Stock being valued at $100.00 for such
purpose, which conversion price shall be adjusted as
hereinafter provided in this Article V.D. (such
conversion price, as so adjusted, is hereinafter
sometimes referred to as the "Conversion Price") (that
is, a conversion rate initially equivalent to one (1)
share of Class A Common Stock for each share of Series A
Preferred Stock so converted, subject to adjustment as
the Conversion Price
Exhibit A
A-5
is adjusted as hereinafter provided in this Article
V.D.).
(b) Mechanics of Conversion. The conversion rights of
holders of shares of Series A Preferred Stock shall be
exercised by giving written notice that the holder
elects to convert a stated number of shares of Series A
Preferred Stock into Class A Common Stock to the
corporation at its principal office (or such other
office or agency of the corporation as the corporation
may designate by notice in writing to the holders of
shares of Series A Preferred Stock). Before any holder
of shares of Series A Preferred Stock shall be entitled
to convert the same into shares of Class A Common Stock
and to receive certificates therefor, the holder shall
surrender the certificate or certificates representing
the shares of Series A Preferred Stock to be converted,
duly endorsed, at the principal office of the
corporation (or such other office or agency of the
corporation as the corporation may designate by notice
in writing to the holders of Series A Preferred Stock)
(or shall notify the corporation that such certificate
has been lost, stolen or destroyed and shall execute an
agreement satisfactory to the corporation to indemnify
the corporation for any loss it may incur in connection
with such lost, stolen or destroyed certificate), and
shall give written notice to the corporation at such
office specifying the name or names in which such holder
wishes the certificate or certificates for shares of
Class A Common Stock to be issued if different from the
name of such holder shown on the books and records of
the corporation. No fractional shares of Class A Common
Stock shall be issued upon conversion of shares of
Series A Preferred Stock. In lieu of any fractional
share to which the holder would otherwise be entitled,
the corporation may, in its sole discretion, elect to
pay a cash amount equal to such fraction multiplied by
the then effective Conversion Price. The corporation
shall, as soon as practicable after delivery of such
certificate or certificates, or such agreement and
indemnification in the case of
Exhibit A
A-6
lost, stolen or destroyed certificate or certificates,
issue and deliver to such holder of shares of Series A
Preferred Stock a certificate or certificates for the
number of shares of Class A Common Stock to which such
holder shall be entitled as aforesaid, and, if the
corporation elects not to issue fractional shares, a
check payable to the holder in the amount of any cash
amounts payable in lieu of a fractional share of Class A
Common Stock resulting from the conversion. Such
conversion shall be deemed to have been made immediately
prior to the close of business (the "Conversion Date")
on the date of surrender of the certificate or
certificates representing the shares of Series A
Preferred Stock to be converted, and the person or
persons entitled to receive the certificate or
certificates for the shares of Class A Common Stock
issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares
of Class A Common Stock on such date. The corporation
shall not be obligated to pay any dividends which shall
have been declared and shall be payable to holders of
shares of Series A Preferred Stock on a dividend payment
date if the dividend record date for such dividend is
subsequent to the Conversion Date.
(5) Adjustment of Conversion Price. If and whenever the
corporation shall issue or sell, or is, in accordance with the
applicable provisions of this paragraph (5) of this Article
V.D., deemed to have issued or sold, any shares of Common
Stock for consideration per share less than the Conversion
Price in effect immediately prior to such issuance or sale,
then, forthwith upon such issuance or sale, the Conversion
Price of the shares of Series A Preferred Stock shall be
reduced to a price equal to the price per share at which the
corporation issued or sold or is deemed to have issued or
sold, such shares of Common Stock. Notwithstanding anything
contained herein to the contrary, no adjustment of the
Conversion Price shall be made as a result of the issuance of:
(i) any shares issued pursuant to any other stock option or
other plan duly adopted by the Board of Directors of the
corporation, provided that this
Exhibit A
A-7
exception shall not apply to issuances made pursuant to such
plans which exceed ten (10%) percent of the Common Stock of
the corporation then outstanding on a fully diluted basis,
counting as outstanding all shares of Common Stock issuable
upon exercise or conversion of all outstanding options,
warrants, and convertible securities; and (ii) any shares of
Common Stock issued pursuant to the conversion of any shares
of Class A Preferred Stock.
(a) Issuance of Rights or Options. In case at any time the
corporation shall grant (whether directly or by
assumption in a merger or otherwise) any warrants or
other rights to subscribe for or purchase, or grant any
options for the purchase of, Common Stock or any
security convertible into or exchangeable for Common
Stock (such warrants, rights, options are hereinafter
the "Options" and such convertible or: exchangeable
stock or securities are hereinafter "Convertible
Securities") whether or not the Options or the right to
convert or exchange the Convertible Securities are
immediately exercisable, and the price per share for
which Common Stock is issuable upon the exercise of such
Options or upon the conversion or exchange of such
Convertible Securities (determined by dividing (i) the
total amount, if any, received or receivable by the
corporation as consideration for the granting of such
Options, plus the minimum aggregate amount of additional
consideration payable to the corporation upon the
exercise of all such Options, plus, in the case of such
Options which relate to Convertible Securities, the
minimum aggregate amount of additional consideration, if
any, payable upon the issuance or sale of such
Convertible Securities and upon the conversion or
exchange thereof, by (ii) the total maximum number of
shares of Common Stock issuable upon the exercise of
such Options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise
of such Options) shall be less than the Conversion Price
in effect immediately prior to the time of the granting
of such Options, then the total maximum number of
Exhibit A
A-8
shares of Common Stock issuable upon the exercise of
such Options or upon conversion or exchange of the total
maximum amount of such Convertible Securities issuable
upon the exercise of such Options shall be deemed to
have been issued for such price per share as of the date
of granting of such Options and thereafter shall be
deemed to be outstanding, except as otherwise provided
in paragraph (5)(c) of this Article V.D., no adjustment
of the Conversion Price shall be made upon the actual
issuance of such Common Stock or of such Convertible
Securities upon exercise of such Options or upon the
actual issuance of such Common Stock upon conversion or
exchange of such Convertible Securities.
(b) Issuance of Convertible Securities. In case the
corporation shall issue or sell (whether directly or by
assumption in a merger or otherwise) any Convertible
Securities (other than Convertible Securities issued
upon the exercise of Options referred to in paragraph
(5)(a) of this Article V.D.), whether or not the rights
to exchange or convert the Convertible Securities are
immediately exercisable, and the price per share for
which Common Stock is issuable upon such conversion or
exchange (determined by dividing (i) the total amount
received or receivable by the corporation as
consideration for the issuance or sale of such
Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to
the corporation upon the conversion or exchange thereof,
by (ii) the total maximum number of shares of Common
Stock issuable upon the conversion or exchange of all
such Convertible Securities) shall be less than the
Conversion Price in effect immediately prior to the time
of such issue or sale, then the total maximum number of
shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall be
deemed to have been issued for such price per share as
of the date of the issuance or sale of such Convertible
Securities and thereafter shall be deemed to be
outstanding, and, except as otherwise provided in
paragraph (5) (c) of
Exhibit A
A-9
this Article V.D., no adjustment of the Conversion Price
shall be made upon the actual issuance of such Common
Stock upon conversion or exchange of such Convertible
Securities.
(c) Change in Option Price or Conversion Rate. Upon the
occurrence of any of the following events, namely, if
the purchase price provided for in any Option referred
to in paragraph (5)(a) of this Article V.D., the
additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities
referred to in paragraphs (5)(a) or (5)(b) of this
Article V.D., or the rate at which Convertible
Securities referred to in paragraphs (5)(a) or (5)(b) of
this Article V.D. are convertible into or exchangeable
for Common Stock shall change at any time (including,
but not limited to, changes under or by reason of
provisions designed to protect against dilution), the
Conversion Price in effect at the time of such event
shall forthwith be adjusted to the Conversion Price
which would have been in effect at such time had such
Options or Convertible Securities still outstanding
provided for such changed purchase price, additional
consideration, or conversion rate, as the case may be,
at the time initially granted, issued, or sold, but only
if as a result of such adjustment the Conversion Price
then in effect hereunder is thereby reduced; and on the
expiration of any such Option or the termination of any
such right to convert or exchange such Convertible
securities referred to in paragraphs (5)(a), (5)(b) or
(5)(c) of this Article V.D., the Conversion Price then
in effect hereunder shall forthwith be increased to the
Conversion Price which would have been in effect at the
time of such expiration or termination had such Option
or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination,
never been issued.
(d) Stock Dividends. In case the corporation shall declare a
dividend or make any other
Exhibit A
A-10
distribution upon or with respect to any security of the
corporation which dividend or distribution is payable in
Common Stock (except for dividends or distributions upon
the Common Stock), Options, or Convertible Securities,
any Common Stock, Options, or Convertible Securities
issuable in payment of such dividend or distribution
shall be deemed to have been issued or sold for
consideration equal to the fair value of such Common
Stock, Options, or Convertible Securities as determined
in good faith by the Board of Directors of the
corporation and the Conversion Price of the outstanding
Series A Preferred Stock shall be adjusted, if
appropriate, pursuant to the applicable provisions of
this paragraph (5) of this Article V.D.
(e) Consideration for Stock. In case any shares of Common
Stock, Options, or Convertible Securities shall be
issued or sold for cash, the consideration received
therefor shall be deemed to be the amount received by
the corporation therefor, without deduction therefrom of
any expenses incurred or any underwriting commissions or
concessions paid or allowed by the corporation in
connection therewith. In case any shares of Common
Stock, Options, or Convertible Securities shall be
issued or sold for a consideration other than cash, the
amount of the consideration other than cash received by
the corporation shall be deemed to be the fair value of
such consideration as determined in good faith by the
Board of Directors of the corporation, without deduction
of any expenses incurred or any underwriting commissions
or concessions paid or allowed by the corporation in
connection therewith. In case any Options shall be
issued in connection with the issue and sale of other
securities of the corporation, together comprising one
integral transaction in which no specific consideration
is allocated to such Options by the parties thereto,
such Options shall be deemed to have been issued for
such consideration as determined in good faith by the
Board of Directors of the corporation.
Exhibit A
A-11
(f) Record Date. In case the corporation shall take a record
of the holder or holders of a class of securities for
the purpose of determining the holders thereof who are
entitled (i) to receive a dividend or other distribution
payable in Common Stock, Options, or Convertible
Securities, (ii) to subscribe for or otherwise acquire
any shares of stock of any class or any other securities
or property, or (iii) to receive any other distribution,
payment, or right, the corporation shall mail to each
holder of shares of Series A Preferred Stock at least
twenty (20) days prior to such record date, a notice
specifying the date on which any such record is to be
taken for the purpose of such dividend, distribution,
payment or right, and a description of the amount and
character of such dividend, distribution, payment, or
right.
(g) Treasury Shares. The disposition of any shares of Common
Stock owned or held by or for the account of the
corporation shall be considered an issue or sale of
Common Stock for the purpose of this paragraph (5) of
this Article V.D.
(h) Subdivision or Combination of Common Stock. In case the
corporation shall at any time subdivide (by any stock
split, stock dividend, recapitalization, or otherwise)
its outstanding shares of Common Stock into a greater
number of shares, the Conversion Price in effect
immediately prior to such subdivision shall be
proportionally reduced, and, conversely, in case the
outstanding shares of Common Stock shall be combined
into a smaller number of shares (by a reverse stock
split, recapitalization, or otherwise), the Conversion
Price in effect immediately prior to such combination
shall be proportionately increased.
(i) Reorganization or Reclassification. If any capital
reorganization or reclassification of the capital stock
of the corporation (other than any reorganization or
reclassification effected in a transaction that is
deemed a
Exhibit A
A-12
liquidation, dissolution, or winding up of the
corporation pursuant to paragraph (3) of this Article
V.D.) shall be effected, and, as a result thereof,
holders of shares of Class A Common Stock shall be
entitled to receive securities or assets with respect to
or in exchange for shares of Class A Common Stock, then,
as a condition of such reorganization or
reclassification, lawful and adequate provisions shall
be made whereby each holder of shares of Series A
Preferred Stock shall have the right to receive, upon
conversion of the shares of Series A Preferred Stock
held by such holder, in lieu of the shares of Class A
Common Stock immediately theretofore issuable upon the
conversion of shares of Series A Preferred Stock, the
number and kind of securities or the amount and kind of
assets to which a holder of a number of shares of Class
A Common Stock into which such shares of Series A
Preferred Stock could have been converted immediately
prior to such reorganization or reclassification, and in
any such case, appropriate provisions shall be made with
respect to the rights and interests of holders of Series
A Preferred Stock such that the provisions of this
Article V.D. (including, without limitation, provisions
for adjustments of the Conversion Price) shall
thereafter be applicable, as nearly as possible, with
respect to any securities or assets thereafter
deliverable upon the exercise of the conversion rights
of the shares of Series A Preferred Stock.
(j) Notice of Adjustment. Upon any adjustment of the
Conversion Price the corporation shall give written
notice thereof, by first class mail, postage prepaid,
addressed to each holder of shares of Series A Preferred
Stock at the address of such holder as shown on the
books of the corporation, which notice shall state the
Conversion Price resulting from such adjustment, setting
forth in reasonable detail the method upon which such
calculation is based.
Exhibit A
A-13
(6) Other Notices. In case at any time:
(a) the corporation shall declare any dividend upon its
Common Stock or any class thereof payable in cash or
stock or make any other distribution to the holders of
its Common Stock or any class thereof;
(b) the corporation shall offer for subscription pro rata to
the holders of its Common Stock or any class thereof any
additional shares of stock of any class or the rights;
(c) there shall be any capital reorganization or
reclassification of the capital stock of the
corporation, or a consolidation or merger of the
corporation with or into, or a sale of all or
substantially all its assets to, another entity or
entities;
(d) there shall be voluntary or involuntary dissolution,
liquidation, or winding up of the corporation; or
(e) the corporation shall be in default under any of its
material contracts, agreements, commitments or
instruments;
then, in any one or more of said cases, the corporation shall
give, by first class mail, postage prepaid, addressed to each
holder of shares of Series A Preferred Stock at the address of
such holder as shown on the books of the corporation, (i) at
least twenty (20) days prior written notice of the date on
which the books of the corporation shall close or a record
shall be taken for such dividend, distribution, or
subscription rights or for determining rights to vote in
respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or
winding up, and (ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up, at least twenty (20) days prior
written notice of the date when the same shall take place.
Such notice in accordance with the foregoing clause shall also
specify, in the case of any such dividend, distribution, or
subscription rights, the date on which the holders of Common
Stock shall be entitled thereto, and such notice in accordance
Exhibit A
A-14
with the foregoing clause shall also specify the date on which
the holders of Common Stock shall be entitled to exchange
their Common Stock for securities or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be.
(7) Stock to Be Reserved. The corporation shall at all times
reserve and keep available out of its authorized but unissued
Class A Common Stock, solely for the purpose of effecting the
conversion of the shares of Series A Preferred Stock as herein
provided, such number of shares of Class A Common Stock as
shall from time to time be sufficient to effect the conversion
of all outstanding shares of Series A Preferred Stock; and if
at any time the number of authorized but unissued shares of
Class A Common Stock shall not be sufficient to effect the
conversion of all the then outstanding Series A Preferred
Stock, the corporation will take such corporate action as may,
in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Class A Common Stock to such
number of shares as shall be sufficient for such purpose.
(8) No Reissuance of Converted, Redeemed or Repurchased Series A
Preferred Stock. Any shares of Series A Preferred Stock which
are converted into shares of Class A Common Stock as provided
in this Article V.D., and any shares of Series A Preferred
Stock redeemed pursuant to paragraph (11) of this Article V.D.
or otherwise acquired by the corporation in any manner
whatsoever, shall be cancelled and shall not under any
circumstances be reissued, and the corporation may from time
to time take such appropriate corporate action as may be
necessary to reduce accordingly the number of authorized
shares of Series A Preferred Stock.
(9) Issue Tax. The issuance of certificates for shares of Class A
Common Stock upon conversion of shares of Series A Preferred
Stock shall be made without charge to the holders thereof for
any issuance tax in respect thereof, provided that the
corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance
and delivery of any certificate in a name other than that of
the
Exhibit A
A-15
holder of shares of Series A Preferred Stock which is being
converted.
(10) Closing of Books. The corporation will at no time close its
transfer books against the transfer of any shares of Series A
Preferred Stock or of any shares of Class A Common Stock
issued or issuable upon the conversion of any shares of Series
A Preferred Stock in any manner which interferes with the
timely conversion of such shares of Series A Preferred Stock,
except as may otherwise be required to comply with applicable
securities laws or by agreement among the holders of the
shares of Series A Preferred Stock.
(11) Right of Corporation to Call Shares. The corporation shall
have the right to call for redemption all or any part of the
outstanding shares of Series A Preferred Stock, at any time or
from time to time following the third anniversary of the
Original Issue Date, at a price per share equal to the
Liquidation Payment that would be payable thereon if the
corporation were liquidated, dissolved, or wound up on the
date fixed for redemption. The amount payable with respect to
each share of Series A Preferred Stock is hereinafter referred
to as the "Call Price". Written notice of the corporation's
election to purchase all or part of the then outstanding
shares of Series A Preferred Stock stating a payment date, the
amount of the Call Price, and the place where the Call Price
shall be payable, shall be given by mail, postage prepaid, not
less than thirty (30) but not more than sixty (60) days prior
to the payment date stated therein, to the holders of record
of all shares of Series A Preferred Stock called for
redemption, such notice to be addressed to each such holder at
its address as shown by the records of the corporation. Each
holder of shares of Series A Preferred Stock shall be entitled
to convert the shares of Series A Preferred Stock held by such
holder pursuant to paragraph (4) of this Article V.D. at any
time prior to the payment date set forth in the written
notice.
All other provisions of the Articles of Incorporation shall remain in full
force and effect.
Exhibit A
A-16
4. This amendment was adopted by the Board of Directors of the corporation
on _______, 1990 and approved by the shareholders of the corporation on _______,
1990.
5. This amendment was duly approved by the shareholders of the corporation
in accordance with the provisions of Section 14-2-1003 of the Georgia Business
Corporation Code.
IN WITNESS WHEREOF, the corporation has caused these Articles of Amendment
to be executed by its duly authorized officer this day of _____________, 1990.
SATELLINK PAGING INC.
By: _____________________
Xxxx X. Xxxxxxx,
President
Exhibit A
A-17
JT 1334
COPYRIGHT, 1930 BY
XXXXXX & X. X. XXXXXXX
CHICAGO
PATENT PENDING
INCORPORATED UNDER THE LAWS OF THE STATE OF
GEORGIA
-------
[NUMBER] [SHARES]
SATELLINK PAGING INC.
Series A Convertible Preferred Stock
AUTHORIZED CAPITAL 100,000 SHARES $.01 PAR VALUE
AUTHORIZED SERIES A CONVERTIBLE PREFERRED STOCK 7,500 SHARES
-----
THIS CERTIFIES THAT is the owner of
-------------------------------------------
full paid and non-assessable
--------------------------------------------------
SHARES OF THE CAPITAL STOCK OF
--------------------------------------------------
transferable on the books of the Corporation in person or by duly authorized
Attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF the said Corporation has caused this Certificate to be signed
by its duly authorized officers and sealed with the Seal of the Corporation,
this day of A.D. 19
------------------ ------------- -----
------------------------- ---------------------------
SECRETARY PRESIDENT
No. S4 XXXXXX & X. X. XXXXXXX CORPORATION SUPPLY CO
MINUTES OF A SPECIAL MEETING
OF THE BOARD OF DIRECTORS OF
SATELLINK PAGING INC. HELD ON OCTOBER 23, 1990
A special meeting of the Board of Directors of Satellink Paging Inc. (the
"Corporation") was held at the offices of the Corporation in Atlanta, Georgia on
October 23, 1990, commencing at approximately 6:30 p.m. Participating in the
meeting were Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxx (both present in person), and
Xxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxx III and E. Xxxx Xxxxxx (all participating by
telephone conference, by means of which all persons participating in the
telephone conference could hear each other). Xxxxxx Xxxxxx was absent from the
meeting.
Also present by invitation of the Board of Directors were Xxxxx X.
Xxxxxxxxxx, Esq. of Xxxxxx, Xxxxxxxxxx & Xxxxxx, P.C., counsel to Cue Paging
Corporation, and Xxxxxx X. Xxxxxx, Esq. and Xxxxxxx Xxxxxxxxxx, Esq. of Powell,
Goldstein, Xxxxxx & Xxxxxx, counsel to the Corporation. Xx. Xxxxxxx acted as
Chairman of the meeting and Xx. Xxxxxxxx acted as Secretary of the meeting.
Xx. Xxxxxxx opened the meeting by stating that the only item on the agenda
for the meeting was the discussion of a proposed issuance of convertible
preferred stock and approval of the agreements and corporate documents that are
necessary to effect this issuance. Xx. Xxxxxxx noted that a package of material
relating to this transaction, containing, among other things, drafts dated
September 28, 1990 of (i) resolutions of the Board of Directors authorizing the
convertible preferred stock, (ii) purchase agreement to be entered into between
the Corporation and the prospective investors, and (iii) articles of amendment
to the Articles of Incorporation of the Corporation, containing the proposed
terms of the convertible preferred stock, had been mailed to all the directors
the previous week.
Xx. Xxxxxxx then reviewed for the Board of Directors the principal
features of the proposed transaction. He stated that the Corporation is
proposing to issue up to 7,500 shares of convertible preferred stock at an issue
price of $100 per share in cash. The Corporation's existing shareholders would
be given the first opportunity to offer to subscribe for the convertible
preferred stock until November 4, 1990. If all the 7,500 shares are not
subscribed for by existing shareholders on or before November 4, 1990, then up
to 2,000 shares may be issued to outside investors.
Xx. Xxxxxxx then stated that the Company proposes to ask the potential
investors to subscribe for shares by executing purchase agreements with the
Corporation on or prior to November 21, 1990 and that if on such date the shares
of convertible preferred stock are oversubscribed the number of shares to be
issued to each investor will be reduced pro rata.
At the invitation of the Chairman, Xx. Xxxxxx then reviewed with the Board
of Directors the draft resolutions that had been mailed to the members of the
Board of Directors. During the discussion that ensued, a number of corrections
to the resolutions circulated to the Board of Directors have been suggested and
duly noted.
After further discussion, and upon motion duly made by Xx. Xxxxxxxx and
seconded by Xx. Xxxxxx, the following resolutions were unanimously (with one
director absent) adopted by the Board of Directors:
RESOLVED, that the resolutions attached as Annex I hereto (which are the
resolutions circulated to the members of the Board of Directors prior to this
meeting with the changes and corrections suggested at this meeting) be, and they
hereby are, approved and adopted in all respects;
RESOLVED, that the Corporation be, and it hereby is, authorized and
directed to offer and sell up to 7,500 newly-issued shares of Series A
Convertible Preferred Stock ("Series A Shares") on the following general terms
and conditions:
1. The Series A Shares will be issued for a consideration of $100 per
share in cash, payable upon the issuance thereof;
2. The Series A Shares will be offered first to the Corporation's
existing shareholders until November 4, 1990;
3. If any of the offered Series A Shares are not subscribed for by
existing stockholders on or prior to November 4, 1990, up to 2,000
of such shares may be offered to outside potential investors; and
4. If on November 21, 1990 the Series A Shares are oversubscribed, the
number of shares to be sold to each individual investor will be
reduced pro rata based on the number of shares originally subscribed
for.
There being no further business to come before the meeting, upon motion
duly made by Xx. Xxxxxxxx and seconded by Xx. Xxxxxx, the meeting was adjourned.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx, Secretary
of the Meeting
-2-
ANNEX I
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS OF
SATELLINK PAGING INC. AT A SPECIAL MEETING
HELD ON OCTOBER 23, 1990
WHEREAS, the Board of Directors of the Corporation has determined that it
is in the best interest of the Corporation and its shareholders to amend the
Articles of Incorporation of the Corporation to (i) increase the number of
shares of authorized capital stock of the Corporation from 70,000 to 100,000
shares, (ii) create a class of capital stock to be designated "preferred stock,
$.01 par value" of the Corporation ("Preferred Stock"), (iii) create a series of
convertible Preferred Stock to be issued and sold in a private placement
pursuant to individual stock purchase agreements with various purchasers, and
(iv) authorize the Board of Directors of the Corporation to determine, with
respect to unissued and undesignated shares of Preferred Stock the preferences,
limitations, and relative rights of any series of Preferred Stock and to
designate the number of shares within that series prior to the issuance of any
shares of that series;
NOW THEREFORE, BE IT HEREBY RESOLVED, that the proposed amendment (the
"Amendment") to the Articles of Incorporation of the Corporation set forth in
the form of the Articles of Amendment (the "Articles of Amendment") attached as
Exhibit A to the Stock Purchase Agreement (as defined below) be, and it hereby
is, approved and adopted; and the Amendment be, and it hereby is, recommended to
the shareholders of the Corporation for approval;
RESOLVED, that upon the approval of the Amendment by the shareholders of
the Company, the appropriate officers of the Corporation are authorized and
directed to execute the Articles of the Amendment and file, or cause to be
filed, executed Articles of Amendment with the Secretary of State of Georgia and
to do any all other such acts and take all such other actions as may be
necessary or appropriate to cause the Articles of Amendment to become affective;
RESOLVED, that the Corporation is hereby authorized to offer and sell up
to 7,500 authorized but unissued shares of Preferred Stock designated as "Series
A Convertible Preferred Stock" (the "Series A Shares"), at the price per share
of not less than $100.00; and that the Board of Directors has specifically
determined that the per share price for the Series A Shares constitutes adequate
consideration for the issuances of such shares;
RESOLVED, that the Series A Preferred Stock Purchase Agreement and Second
Amendment to the Stockholders Agreement (the "Stockholders Agreement"), proposed
to be entered by and among the Corporation, the several purchasers named on the
signature pages thereof (the "Purchasers"), and certain other security holders
of the
Corporation also named on the signature pages and thereof be, and it hereby is,
approved and adopted substantially in the form presented to the Board of
Directors and attached as Attachment A hereto;
RESOLVED, that the Corporation reserve and keep available out of its
authorized Class A common stock $.01 par value ("Class A Common Stock"), solely
for the purpose of issuance pursuant to the terms of the Series A Shares, such
number of shares of Class A Common Stock as shall from time to time be issuable
pursuant to the terms of the Series A Shares upon conversion thereof (the
"Conversion Shares");
RESOLVED, that the form of stock certificate attached as Attachment B
hereto be, and it hereby is, adopted as and for the stock certificate for the
Series A Shares;
RESOLVED, that the President or any Vice President of the Corporation are
authorized to determine the states, if any, in which appropriate action shall be
taken to qualify or register for sale all or such part of the Series A Shares of
the Corporation as said officers may deem advisable; that said officers are
hereby authorized to perform on behalf of the Corporation any and all such acts
as they deem necessary or advisable in order to comply with applicable laws of
any such states; and in connection therewith to execute and file all requisite
papers and documents, including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; and the execution by such officers of any such paper or document or the
doing by them of any act in connection with the foregoing matters shall
conclusively establish their authority to do so, such papers or documents being
hereby approved and ratified by the Corporation;
RESOLVED, that in connection with the foregoing, the Board of Directors
hereby adopts and makes a part of these resolutions, as if fully recited herein,
any prescribed forms of resolutions or consents as may be required or specified
by any of said states;
RESOLVED, that the foregoing approvals of each of the Amendment, the Stock
Purchase Agreement, the issuance and sale of the Series A Shares and the
Conversion Shares and the authorization of the Corporation to enter into and
perform the Stock Purchase Agreement and each transaction contemplated thereby
shall extend to and include all changes to the form of such agreements attached
hereto as shall be approved by the President or any Vice President of the
Corporation and deemed by such officer or officers to be in the best interest of
the Corporation;
RESOLVED, that the President or any Vice President of the Corporation are
each authorized and directed to execute and deliver the Stock Purchase Agreement
in substantially in the form attached as Attachment A hereto, together with such
changes as the President or any Vice President of the Corporation shall approve
and deem to be in the best interests of the Corporation, with the authority of
the President or any Vice President to make such changes and modifications being
conclusively evidenced
by the signature of such officer to said agreements in the form thereof finally
so executed and delivered by the Corporation;
RESOLVED, that the Secretary and any Assistant Secretary of the
Corporation are each authorized to attest the signature of the President or any
Vice President of the Corporation under the documents referred to in the
preceding resolutions, and to affix the corporate seal thereto and to attest the
same (provided that no attestation or seal shall be required to make such
documents effective, valid, binding, and enforceable);
RESOLVED, that each of the officers of the Corporation is authorized and
directed to proceed with the sale, issuance, and delivery of the Series A Shares
and to do any and all such further acts and things as may be necessary on the
part of the Corporation to consummate the transactions provided for in the Stock
Purchase Agreement and to otherwise carry out the spirit and purpose of these
resolutions, and to resolve, in their discretion, all questions of method, form,
and detail and to execute, acknowledge, and deliver in the name and on behalf of
the Corporation such other agreements, papers, instruments, and documents as are
required by the Stock Purchase Agreement or as such officers deem necessary or
advisable in order to carry out the transactions described in the Stock Purchase
Agreement.
