SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 20, 1996
AERIAL COMMUNICATIONS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 0-28262 39-1706857
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(State of incorporation (Commission (I.R.S. Employer
or organization) File Number) Identification No.)
8410 WEST BRYN MAWR AVENUE, SUITE 1100, CHICAGO, IL 60631
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(Address of principal executives offices) (Zip Code)
Registrant's telephone number, including area code: (312) 399-4200
AMERICAN PORTABLE TELECOM, INC.
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(Former name or former address, if changed since last report)
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Item 5. Other Events
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On November 20, 1996, the Registrant filed a
Certificate of Ownership and Merger with the Secretary of State
of the State of Delaware to effect a change in its name from
"American Portable Telecom, Inc." to "Aerial Communications,
Inc." The NASDAQ ticker symbol has also been changed from "APTI" to "AERL".
Item 7. Financial Statements and Exhibits
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(c) Exhibits
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3.1 Restated Certificate of Incorporation, as amended,
of the Registrant
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SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
Date: November 27, 1996 AERIAL COMMUNICATIONS, INC.
(Registrant)
By: /s/ J. Clarke Smith
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J. Clarke Smith
Vice President-Finance and
Administration, Chief
Financial Officer and
Treasurer
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EXHIBIT INDEX
Exhibit No. Description
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3.1 Restated Certificate of Incorporation, as amended,
of the Registrant
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Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN PORTABLE TELECOM, INC.
AMERICAN PORTABLE TELECOM, INC., a corporation
organized and existing under the laws of the State of Delaware,
hereby certifies as follows:
1. The name of the corporation is AMERICAN PORTABLE
TELECOM, INC. The original Certificate of Incorporation of the
corporation was filed with the Secretary of State on July 23,
1991. The name of the corporation set forth in such original
Certificate of Incorporation was AMERICAN PORTABLE
TELECOMMUNICATIONS, INC.
2. On January 18, 1996 a Certificate of Amendment was
filed amending the corporation's Certificate of Incorporation to
change its name to AMERICAN PORTABLE TELECOM, INC.
3. This Restated Certificate of Incorporation restates
and integrates and further amends the Certificate of
Incorporation of this corporation by revising such document in
its entirety.
4. This text of the Certificate of Incorporation as
amended or supplemented heretofore is further amended hereby to
read as herein set forth in full:
ARTICLE I
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The name of the corporation is
AMERICAN PORTABLE TELECOM, INC.
ARTICLE II
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The address of its registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, New
Castle County, Delaware 19805. The name of its registered agent
at such address is Corporation Service Company.
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ARTICLE III
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The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware; provided, however, that the corporation, without the
written consent of TDS, shall not, directly or indirectly
(through a subsidiary of the corporation or any other person or
otherwise) for its own account or that of another, own, invest or
otherwise have an interest in, lease, operate or manage any
business other than a business engaged solely in the construction
of, the ownership of interests in and/or the management and
operation of personal communications systems. As used herein the
term "personal communication systems" shall mean wireless
telecommunications systems licensed by the Federal Communications
Commission which utilize radio frequencies within the following
bands:
1850-1865/1930-1945MHZ
1870-1885/1950-1965MHZ
1895-1910/1975-1990MHZ
1865-1870/1945-1950MHZ
1885-1890/1965-1970MHZ
1890-1895/1970-1975MHZ
ARTICLE IV
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Capitalization
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(a) Authorized Shares. The total number of shares of
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all classes of stock which the corporation shall have authority
to issue is one hundred ninety million (190,000,000) shares,
consisting of sixty million (60,000,000) Common Shares with a par
value of $1.00 per share; sixty million (60,000,000) Series A
Common Shares with a par value of $1.00 per share; sixty million
(60,000,000) Series B Common Shares with a par value of $1.00 per
share; and ten million (10,000,000) shares of Preferred Stock
with a par value of $1.00 per share.
(b) Common Shares, Series A Common Shares and Series B
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Common Shares. (1) The powers, preferences and rights of the
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Common Shares, Series A Common Shares and Series B Common Shares,
and the qualifications, limitations or restrictions thereof,
shall be in all respects identical, except as expressly provided
in this Restated Certificate of Incorporation, as amended, or as
otherwise required by law.
(2) At each annual or special meeting of stockholders,
each holder of Common Shares shall be entitled to one (1)
vote in person or by proxy for each Common Share standing in
such
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holder's name on the stock transfer records of the
corporation in connection with all actions submitted to a
vote of stockholders, each holder of Series A Common Shares
shall be entitled to fifteen (15) votes for each Series A
Common Share standing in such holder's name, and holders of
Series B Common Shares shall not vote on any matter, except
as expressly provided in this Restated Certificate of
Incorporation, as amended, or as otherwise required by the
Delaware General Corporation Law.
(3) The number of authorized Common Shares and Series
B Common Shares may be increased or decreased (but not below
the number of such shares then outstanding in such class,
respectively) by the affirmative vote of a majority of the
Series A Common Shares by the holders thereof.
(c) Dividends. Dividends may be declared and paid to
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the holders of the Common Shares, Series A Common Shares and
Series B Common Shares in cash, property, or other securities of
the corporation out of any net profits or net assets of the
corporation legally available therefor. If and when dividends on
the Common Shares, Series A Common Shares and Series B Common
Shares are declared by the board of directors, whether payable in
cash, in property or in shares of stock of the corporation, the
holders of Common Shares, Series A Common Shares and Series B
Common Shares shall be entitled to share equally, on a per share
basis, in such dividends; provided, however, that if at any time
a dividend or other distribution is to be paid in capital stock
of the corporation on capital stock of the corporation, such
dividend or other distribution shall be paid to all holders of
common stock of the corporation and may only be paid as follows:
(1) Common Shares may be paid to holders of Common
Shares and proportionately to holders of Series A Common
Shares and Series B Common Shares;
(2) Common Shares may be paid to holders of Common
Shares at the same time that Series A Common Shares are paid
proportionately to holders of Series A Common Shares and
Series B Common Shares are paid proportionately to holders
of Series B Common Shares;
(3) Series A Common Shares may be paid to holders of
Series A Common Shares and proportionately to holders of
Common Shares and Series B Common Shares; or
(4) Series B Common Shares may be paid to holders of
Series B Common Shares and proportionately to holders of
Common Shares and Series A Common Shares;
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and in the case of any such dividend or other distribution the
board of directors may permit the holders of any class of common
stock to elect to receive cash in lieu of stock.
(d) Stock Splits, Subdivisions and Combinations. If
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the corporation shall in any manner split, subdivide or combine
the outstanding shares of any class of common stock, the
outstanding shares of each other class of common stock shall be
proportionately split, subdivided or combined in the same manner
and on the same basis.
(e) Liquidation. The holders of Common Shares, Series
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A Common Shares and Series B Common Shares shall be entitled to
receive the same amount or distribution per share upon the
liquidation, dissolution or winding up of the affairs of the
corporation. A consolidation, merger or reorganization of the
corporation with any other corporation or corporations, or a sale
of all or substantially all of the assets of the corporation,
shall not be considered a liquidation, dissolution or winding up
of the corporation within the meaning of these provisions.
(f) Distributions of Subsidiaries. Notwithstanding
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the provisions of subsections (c) and (e) of Article IV, if the
corporation at any time distributes to the holders of common
stock of the corporation the stock of a Subsidiary (as
hereinafter defined) having two or more classes of common stock
outstanding that have relative rights, preferences and
limitations vis-a-vis each other that, in the judgment of the
board of directors, are similar in all material respects to the
relative rights, preferences and limitations of two or more
classes of common stock of the corporation vis-a-vis each other
(except for any variations in rights, preferences and limitations
that are (1) necessary to enable a class of common stock of the
Subsidiary to be traded on an exchange or through the National
Association of Securities Dealers, Inc. Automated Quotation
System (the "NASDAQ System"); (2) due to differences in the laws
of the states of incorporation of the corporation and the
Subsidiary; or (3) equally applicable to two or more classes of
common stock of the Subsidiary), then each class of common stock
of the Subsidiary shall be distributed to the extent practicable
to the holders of the corresponding class of common stock of the
corporation, provided that the same number of shares on a per
share basis shall be distributed with respect to shares of each
applicable class of common stock of the corporation.
(g) Pre-emptive Rights. No holder of stock of the
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corporation shall have any pre-emptive right to subscribe for or
acquire any unissued or treasury stock or other securities of the
corporation, whether such stock or securities be hereby or
hereafter authorized, except as may be specifically granted
pursuant to a contract with the corporation approved by the board
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of directors and except that holders of Series A Common Shares
shall have a pre-emptive right to acquire unissued or treasury
Series A Common Shares or securities convertible into or
exchangeable for, or carrying a right to subscribe to or acquire,
Series A Common Shares; provided, however, that no pre-emptive
right shall exist to acquire any Series A Common Shares sold
otherwise than for cash. The pre-emptive right of each holder of
Series A Common Shares may be exercised in full, or in part to
the extent determined by each holder, and in no event shall the
exercise of such right be conditioned on subscribing for or
acquiring any minimum amount or proportion of stock or other
securities.
(h) Conversion of Series A Common Shares. Each
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outstanding Series A Common Share shall be convertible into one
Common Share. Series A Common Shares so converted shall not be
reissued. Any such conversion shall be effected by the
presentation and surrender of the certificates representing the
Series A Common Shares to be converted, at the office of the
corporation or at such other place as may from time to time be
designated by the corporation, in such form and accompanied by
all transfer taxes (or proof of payment thereof), if any, as
shall be required for such transfer, and upon such surrender, the
holder of such shares shall be entitled to receive in exchange
therefor certificates for fully paid and nonassessable Common
Shares of the corporation at the rate aforesaid, and such holder
shall be registered as the holder of such Common Shares.
(i) Mandatory Redemption. Notwithstanding any other
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provision of this Restated Certificate of Incorporation to the
contrary, any outstanding shares of stock of the corporation
shall be subject to redemption by the corporation, by action of
the board of directors, if in the judgment of the board of
directors such action should be taken, pursuant to section 151(b) of
Title 8 of the Delaware Code or any other applicable provision of
law, to the extent necessary to prevent the loss or secure the
reinstatement of any license or franchise from any governmental
agency held by the corporation or any of its Subsidiaries to
conduct any portion of the business of the corporation or any of
its Subsidiaries, which license or franchise is conditioned upon
some or all of the holders of the corporation's stock possessing
prescribed qualifications. The terms and conditions of such
redemption shall be as follows:
(1) the redemption price of the shares to be redeemed
pursuant to this subsection (i) shall be equal to the lesser
of (A) the Fair Market Value (as hereinafter defined) of
such shares or (B) if such shares were purchased by a
Disqualified Holder (as hereinafter defined) within one year
of the Redemption Date (as hereinafter defined), such
Disqualified Holder's purchase price for such shares;
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(2) the redemption price of such shares may be paid in
cash, Redemption Securities (as hereinafter defined) or any
combination thereof;
(3) if less than all the shares held by Disqualified
Holders are to be redeemed, the shares to be redeemed shall
be selected in such manner as shall be determined by the
board of directors, which may include selection first of the
most recently purchased shares thereof, selection by lot or
selection in any other manner determined by the board of
directors;
(4) at least 30 days' written notice of the Redemption
Date shall be given to the record holders of the shares
selected to be redeemed (unless waived in writing by any
such holder), provided that the Redemption Date may be the
date on which written notice shall be given to record
holders if the cash or Redemption Securities necessary to
effect the redemption shall have been deposited in trust for
the benefit of such record holders and subject to immediate
withdrawal by them upon surrender of the stock certificates
for their shares to be redeemed;
(5) from and after the Redemption Date, any and all
rights of whatever nature, which may be held by the owners
of shares selected for redemption (including without
limitation any rights to vote or participate in dividends
declared on stock of the same class or series as such
shares), shall cease and terminate and they shall
thenceforth be entitled only to receive the cash or
Redemption Securities payable upon redemption; and
(6) such other terms and conditions as the board of
directors shall determine.
(j) Minority Protection Offers. (1) If, after the
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Effective Time (as hereinafter defined), any person or group
acquires beneficial ownership of 10% or more of the then issued
and outstanding Common Shares (other than upon original issuance
by the corporation, by operation of law, by will or the laws of
descent and distribution, by gift or by foreclosure of a bona
fide loan), and such person or group (a "Related Person") does
not own an equal or greater percentage of the Series B Common
Shares acquired after the record date for the first issuance of
Series B Common Shares (the "Distribution Date"), such person or
group shall, within a 90-day period beginning the day after
becoming a Related Person, make a public tender offer in
compliance with all applicable laws and regulations to acquire
Series B Common Shares as provided in this subsection (j) of
Article IV (a "Minority Protection Offer").
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(2) In each Minority Protection Offer, the Related
Person shall make a public tender offer to acquire that
number of Series B Common Shares determined by (A)
multiplying the percentage of outstanding Common Shares
beneficially owned on the date such person or group became a
Related Person and acquired after the Effective Time by such
Related Person by the total number of Series B Common Shares
outstanding on such date, and (B) subtracting therefrom the
total number of Series B Common Shares beneficially owned on
such date and acquired after the Distribution Date by such
Related Person (including shares acquired on such date at or
prior to the time such person or group became a Related
Person). The Related Person shall acquire all of such
shares validly tendered; provided, however, that if the
number of Series B Common Shares tendered to the Related
Person exceeds the number of shares required to be acquired
pursuant to the formula set forth in this clause (2), the
number of Common Shares acquired from each tendering holder
shall be pro rata in proportion to the total number of
Series B Common Shares tendered by all tendering holders.
(3) The offer price for any Series B Common Shares
required to be purchased by the Related Person pursuant to
this provision shall be the greater of (A) the highest price
per share paid by the Related Person for any Common Share in
the six-month period ending on the date such person or group
became a Related Person, or (B) the highest reported sales
price of a Common Share or Series B Common Share on the
NASDAQ System (or such securities exchange or other
quotation system as is then the principal trading market for
such shares) on the date such person or group became a
Related Person or, in case no such sale takes place, the
Closing Price (as hereinafter defined) on the prior trading
day. For purposes of clause (4) below, the applicable date
for the calculations required by the preceding sentence
shall be the date on which the Related Person becomes
required to engage in a Minority Protection Offer. In the
event that the Related Person has acquired Common Shares in
the six-month period ending on the date such person or group
becomes a Related Person for consideration other than cash,
the value of such consideration per Common Share shall be as
determined in good faith by the board of directors.
(4) A Minority Protection Offer shall also be required
to be effected by any Related Person that acquires
beneficial ownership of the next higher integral multiple of
5% (e.g. 15%, 20%, 25%, etc.) of the outstanding Common
Shares after the Effective Time (other than upon issuance or
sale by the corporation, by operation of law, by will or the
laws of descent and distribution, by gift, or by foreclosure
of a bona fide loan) if such Related Person does not then
own an equal
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or greater percentage of the Series B Common Shares acquired
after the Distribution Date. Such Related Person shall be
required to make a public tender offer to acquire that
number of Series B Common Shares prescribed by the formula
set forth in clause (2) above, and shall acquire all shares
validly tendered or a pro rata portion thereof, as specified
in said clause (2), at a price determined pursuant to clause
(3) above.
(5) If any Related Person fails to make an offer
required by this subsection (j) of Article IV, or to
purchase shares validly tendered and not withdrawn (after
proration, if any), such Related Person shall not be
entitled to vote any Common Shares beneficially owned by
such Related Person and acquired by such Related Person
after the Effective Time unless and until such requirements
are complied with or unless and until all Common Shares
causing such offer requirement to be effective are no longer
beneficially owned by such Related Person.
(6) The Minority Protection Offer requirement shall
not apply to any increase in percentage ownership of Common
Shares resulting solely from a change in the total number of
Common Shares outstanding, provided that any acquisition
after such change which results in any person or group
owning 10% or more of the Common Shares, excluding, in the
case of the numerator but not of the denominator of the
calculation of such percentage, Common Shares held by such
Related Person immediately after the Effective Time, shall
be subject to any Minority Protection Offer requirement that
would be imposed with respect to a Related Person pursuant
to this subsection (j) of Article IV.
(7) All calculations with respect to percentage
ownership of issued and outstanding Common Shares or Series
B Common Shares shall be based upon the numbers of issued
and outstanding shares reported by the corporation on the
last filed of (A) the corporation's most recent annual
report on Form 10-K, (B) its most recent Quarterly Report on
Form 10-Q, or (C) if any, its most recent Current Report on
Form 8-K.
(8) For purposes of this subsection (j) of Article IV,
the term "person" means a natural person, company,
government, or political subdivision, agency or
instrumentality of a government, or other entity,
"beneficial ownership" shall be determined pursuant to Rule
13d-3 promulgated under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or any successor regulation and
the formation or existence of a "group" shall be determined
pursuant to Rule 13d-5(b) under the 1934 Act or any
successor regulation.
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(9) In the event of a merger or consolidation of the
corporation with or into another entity (whether or not the
corporation is the surviving entity), the holders of Series
B Common Shares shall be entitled to receive the same per
share consideration as the per share consideration, if any,
received by any holders of the Common Shares in such merger
or consolidation.
(k) Power to Sell Stock. The board of directors shall
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have the power to issue and sell all or any part of any class of
stock herein or hereafter authorized to such person, firm,
association or corporation, and for such consideration as the
board of directors shall from time to time, in its discretion,
determine, whether or not greater consideration could be received
upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law.
(l) Power to Repurchase Stock. The board of directors
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shall have the power to purchase shares of any class of stock
herein or hereafter authorized from such person, firm,
association or corporation, and for such consideration as the
board of directors shall from time to time, in its discretion,
determine, whether or not less consideration could be paid upon
the purchase of the same number of shares of another class, and
as otherwise permitted by law.
(m) Preferred Stock. The board of directors is
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expressly authorized to adopt, from time to time, a resolution or
resolutions providing for the issue of one or more series of
Preferred Stock, with such voting powers, full or limited, or no
voting powers, and with such designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, in addition
to and not inconsistent with those specifically set forth in this
Restated Certificate of Incorporation and as shall be stated and
expressed in the resolution or resolutions adopted by the board
of directors; provided, however, that no shares of any series of
Preferred Stock shall be issued for consideration of less than
$100 per share, have more than one (1) vote per share with
respect to any matter, or have separate class-voting rights with
respect to the election of directors or any other matter. In no
event shall Preferred Stock of any series be split or divided in
any manner, nor shall any dividends or other distributions
payable in stock of the corporation of any class or series be
paid or payable on Preferred Stock.
(n) Effective Time. Effective as of the filing of
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this Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware pursuant to section 103 of Title 8 of
the Delaware Code (the "Effective Time"), the 1,000 shares of
common
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stock, par value $1.00 per share, of the corporation,
representing all the issued and outstanding capital stock of the
corporation ("Outstanding Common Stock") shall, without any
action on the part of the holder thereof, be converted into
19,086,000 Common Shares and 40,000,000 Series A Common Shares,
all of which shall be fully paid and nonassessable. Upon the
surrender of certificates representing shares of Outstanding
Common Stock, the corporation or any agent of the corporation
appointed for such purpose shall issue in exchange therefor one
or more certificates representing the shares into which the
shares of Outstanding Common Stock have been converted in
accordance with the foregoing.
ARTICLE V
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Any and all right, title, interest and claim in or to
any dividends declared by the corporation, whether in cash, stock
or otherwise, which are unclaimed by the stockholder entitled
thereto for a period of six years after the close of business on
the payment date, shall be and be deemed to be extinguished and
abandoned; and such unclaimed dividends in the possession of the
corporation, its transfer agents or other agents or depositaries
shall at such time become the absolute property of the
corporation, free and clear of any and all claims of any persons
whatsoever.
ARTICLE VI
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Directors
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(a) Number; Classes; Changes. The number of directors
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of the corporation shall be fixed by or pursuant to the bylaws of
the corporation, but shall not be less than three, and,
commencing with the 1996 annual meeting of stockholders, the
directors shall be divided into three classes, which shall be as
nearly equal in number as possible; the term of office of those
of the first class to expire at the annual meeting next ensuing;
of the second class one year thereafter; of the third class two
years thereafter; and at each annual election held after such
classification and election, directors shall be chosen for a full
three-year term to succeed those whose terms expire. If the
number of directors fixed by or pursuant to the bylaws of the
corporation is changed at any time, any newly created
directorships or any decrease in directorships shall be so
apportioned among the classes by the board of directors so as to
make all classes as nearly equal in number as possible; provided,
however, that no decrease in the number of directors shall
shorten the term of any incumbent director.
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(b) Voting in Elections. With respect to the election
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of directors, the holders of Common Shares, voting as a class,
shall be entitled to elect at each annual meeting that number of
directors which (together with all directors whose terms do not
expire at the time of such election and who were previously
elected by such holders) constitutes 25% of the number of
directors of the corporation fixed by or pursuant to the bylaws
of the corporation (rounded up to the nearest whole number).
After the holders of Common Shares have voted with respect to the
election of directors, the holders of (A) Preferred Stock
entitled to vote thereon, and (B) Series A Common Shares, both
voting together as one class, shall be entitled to elect at each
annual meeting that number of directors which (together with all
directors whose terms do not expire at the time of such election
and who were previously elected by such holders) constitutes 75%
of the number of directors fixed by or pursuant to the bylaws of
the corporation (rounded down to the nearest whole number);
provided, however, that in the event the number of issued and
outstanding Series A Common Shares at the time of an annual
meeting is less than 500,000, then the holders of Common Shares
shall be entitled to vote with the holders of Series A Common
Shares and Preferred Stock entitled to vote thereon for the
directors such holders are entitled to elect at such meeting, in
which case the holders of Common Shares, Series A Common Shares,
and Preferred Stock entitled to vote thereon, shall vote together
without regard to class.
(c) Vacancies. Vacancies and newly created
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directorships of the Preferred Stock and Series A Common Shares
shall be filled by the holders of such classes. Vacancies and
newly created directorships of the Common Shares shall be filled
by the holders of such class, if a vacancy or newly created
directorship is to be filled at an annual meeting of
stockholders, or by a majority of the directors then in office,
if the vacancy or newly created directorship is to be filled
between annual meetings of stockholders. Vacancies and newly
created directorships with respect to directors elected by the
holders of Common Shares, Series A Common Shares, and Preferred
Stock entitled to vote thereon, voting together without regard to
class, shall be filled by the holders of such classes, if a
vacancy or newly created directorship is to be filled at an
annual meeting of stockholders, or by a majority of the directors
then in office, if the vacancy or newly created directorship is
to be filled between annual meetings of stockholders. A director
chosen by a majority of the directors then in office to fill a
vacancy or a newly created directorship shall cease to hold
office at the next annual meeting of stockholders held
thereafter, whether the term of office of the class for which the
director was chosen expires at that meeting or not. In all other
cases, directors chosen to fill vacancies and newly created
directorships shall hold office until the next
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election of the class for which such directors shall have been
chosen, and until their successors shall be elected and
qualified.
(d) Ballots. Election of directors need not be by
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written ballot unless the bylaws of the corporation so provide.
ARTICLE VII
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In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly
authorized to make, alter, amend or repeal the bylaws of the
corporation.
ARTICLE VIII
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No opportunity, transaction, agreement or other
arrangement to which TDS, or any other person in which TDS has or
acquires a financial interest, is or shall become a party, shall
be the property or a corporate opportunity of the corporation or
its Subsidiaries, unless (a) not less than 500,000 Series A
Common Shares are outstanding, and (b) such opportunity,
transaction, agreement or other arrangement relates solely to the
construction of, the ownership of interests in and/or the
management and operation of personal communications systems. The
existence or presence of the conditions set forth in the
immediately preceding sentence shall not be deemed to entitle the
corporation conclusively to the benefit of such opportunity,
transaction, agreement or other arrangement.
ARTICLE IX
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A director of the corporation shall not in the absence
of fraud be disqualified by his office from dealing or
contracting with the corporation either as a vendor, purchaser or
otherwise, nor in the absence of fraud shall a director of the
corporation be liable to account to the corporation for any
profit realized by him from or through any transaction or
contract of the corporation by reason of the fact that he, or any
firm of which he is a member, or any corporation of which he is
an officer, director or stockholder, was interested in such
transaction or contract if such transaction or contract has been
authorized, approved or ratified in the manner provided in the
General Corporation Law of Delaware for authorization, approval
or ratification of transactions or contracts between the
corporation and one or more of its directors or officers, or
between the corporation and any other corporation, partnership,
association or other organization in which one or more
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of its directors or officers are directors or officers, or have a
financial interest.
ARTICLE X
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For purposes of this Restated Certificate of
Incorporation:
"Disqualified Holder" shall mean any holder of shares of
-------------------
stock of the corporation whose holding of such stock, either
individually or when taken together with the holding of shares of
stock of the corporation by any other holders, may result, in the
judgment of the board of directors, in the loss of, or the
failure to secure the reinstatement of, any license or franchise
from any governmental agency held by the corporation or any of
its Subsidiaries to conduct any portion of the business of the
corporation or any of its Subsidiaries.
"Fair Market Value" of a share of the corporation's
-----------------
stock of any class or series shall mean the average Closing
Price for such a share for each of the 20 most recent days
on which shares of stock of such class or series shall have
been traded preceding the day on which notice of redemption
shall be given pursuant to subsection (i)(4) of Article IV;
provided, however, that if shares of stock of such class or
series are not traded on any securities exchange or on the
NASDAQ System, "Fair Market Value" shall be determined by
the board of directors in good faith. "Closing Price" on
any day means the last reported sales price or, in case no
such sale takes place, the average of the reported closing
bid and asked prices on the principal United States
securities exchange registered under the 1934 Act on which
such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing sales price or bid
quotation for such stock on the NASDAQ System or any system
then in use, or if no such prices or quotations are
available, the fair market value on the day in question as
determined by the board of directors in good faith.
"personal communication systems" shall have the meaning
------------------------------
specified in Article III.
A "person" shall mean an individual, a corporation, a
------
partnership, a joint venture, a trust or unincorporated
organization, a joint stock company or similar organization,
a government or any political subdivision thereof, or any
other legal entity.
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<PAGE>
"Redemption Date" shall mean the date fixed by the
---------------
board of directors for the redemption of shares of stock of
the corporation pursuant to subsection (i) of Article IV.
"Redemption Securities" shall mean any debt or equity
---------------------
securities (other than Series A Common Shares or securities
convertible into or exchangeable for, or carrying a right to
subscribe to or acquire, Series A Common Shares) of the
corporation, any of its Subsidiaries or any other
corporation, or any combination thereof, having such terms
and conditions as shall be approved by the board of
directors and which, together with any cash to be paid as
part of the redemption price, in the opinion of any
nationally recognized investment banking firm selected by
the board of directors (which may be a firm which provides
other investment banking, brokerage or other services to the
corporation), has a value, at the time notice of redemption
is given pursuant to subsection (i)(4) of Article IV, at
least equal to the price required to be paid pursuant to
subsection (i)(1) of Article IV (assuming, in the case of
Redemption Securities to be publicly traded, such Redemption
Securities were fully distributed and subject only to normal
trading activity).
"Subsidiary", with respect to a specified person, shall
----------
mean any person whose accounts are included in the
consolidated financial statements of the specified person
and its Subsidiaries prepared in accordance with generally
accepted accounting principles at the time.
"TDS" means Telephone and Data Systems, Inc., an Iowa
---
corporation, and any successor by merger, consolidation or
otherwise to such corporation.
ARTICLE XI
----------
(a) Limitation on Liability. A director or officer of
-----------------------
the corporation shall not be personally liable to the corporation
or its stockholders for monetary damages for breach of fiduciary
duty as a director or officer, except for liability (1) for any
breach of the director's or officer's duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (3) under section 174 of Title 8 of the Delaware
Code, or (4) for any transaction from which the director or
officer is found by a court of law to have derived an improper
personal benefit.
(b) Indemnification. Each person who was or is made a
---------------
party or is threatened to be made a party to or is involved in
any
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<PAGE>
action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she
is the legal representative, is or was a director or officer of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, employee or agent or
in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the General
Corporation Law of Delaware, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide
broader indemnification rights than said law permitted the
corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his
or her heirs, executors and administrators; provided, however,
that, except as provided in subsection (c) of this Article XI,
the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part
thereof) was authorized by the board of directors. The right to
indemnification conferred in this Article XI shall be a contract
right and shall include the right to be paid by the corporation
the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the General
Corporation Law of Delaware requires, the payment of such
expenses incurred by a director or officer in his or her capacity
as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Article XI or otherwise. The corporation
may, by action of its board of directors, provide indemnification
to other employees or agents of the corporation with the same
scope and effect as the foregoing indemnification of directors
and officers.
(c) Claims for Indemnification. If a claim under
--------------------------
subsection (b) of this Article XI is not paid in full by the
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<PAGE>
corporation within 30 days after a written claim has been
received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to the corporation) that the claimant
has not met the standards of conduct which make it permissible
under the General Corporation Law of Delaware for the corporation
to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the corporation. Neither the
failure of the corporation (including stockholders) to have made
a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the General Corporation Law of Delaware, nor an actual
determination by the corporation (including its board of
directors, independent legal counsel, or its stockholders) that
the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(d) Non-Exclusivity. The right to indemnification and
---------------
the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Article XI
shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of this
Restated Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(e) Insurance. The corporation may maintain
---------
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not
the corporation would have the power to indemnify such person
against the expense, liability or loss under the General
Corporation Law of Delaware.
ARTICLE XII
In accordance with Section 203(b)(3) of the General
Corporation Law of the State of Delaware (the "GCL") the
corporation expressly elects not to be governed by Section 203 of
the GCL.
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<PAGE>
ARTICLE XIII
------------
The corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
* * * * *
This Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the stockholders in
accordance with the applicable provisions of Sections 228, 242
and 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said AMERICAN PORTABLE TELECOM,
INC. has caused this Certificate to be signed by Donald W.
Warkentin, its President and attested by Michael G. Hron, its
Secretary, this 19th day of April, 1996.
AMERICAN PORTABLE TELECOM, INC.
By: /s/ Donald W. Warkentin
------------------------------
Donald W. Warkentin
President
ATTEST:
By: /s/ Michael G. Hron
-------------------------
Michael G. Hron
Secretary
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<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
OAK PARK COMMUNICATIONS, INC.
INTO
AMERICAN PORTABLE TELECOM, INC.
American Portable Telecom, Inc., a corporation
organized and existing under the laws of the State of Delaware
(the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That this Corporation was incorporated on the
23rd day of July, 1991, pursuant to the General Corporation Law
of the State of Delaware. The name of the corporation set forth
in the original Certificate of Incorporation of the Corporation
was "American Portable Telecommunications, Inc."
SECOND: That a Certificate of Amendment to the
Certificate of Incorporation was filed on January 18, 1996,
amending the name of the corporation to "American Portable
Telecom, Inc."
THIRD: That a Restated Certificate of Incorporation of
the Corporation was filed on April 19, 1996, which amended and
restated the Certificate of Incorporation, as amended, of the
Corporation.
<PAGE>
FOURTH: That this Corporation owns all of the
outstanding shares of the capital stock of Oak Park
Communications, Inc., a Delaware corporation ("Oak Park"), which
was incorporated on the 20th day of September, 1996.
FIFTH: That the merger of Oak Park with and into this
Corporation pursuant to Section 253 of the General Corporation
Law of the State of Delaware was approved by the adoption of the
following resolutions of the Board of Directors of this
Corporation by a unanimous written consent dated as of November
12, 1996, and which resolutions have not been amended, modified
or rescinded and remain in full force and effect on the date
hereof:
RESOLVED, that the Board of Directors of the
Corporation, hereby declares it advisable and in the best
interests of the Corporation to change the name of the
Corporation to "Aerial Communications, Inc.";
FURTHER RESOLVED, that, in order to effect the change
in the name of the Corporation pursuant to Section 253 of the
General Corporation Law of the State of Delaware, the proper
officers of the Corporation be, and they are hereby, authorized
and directed to cause Oak Park Communications, Inc. a Delaware
corporation and wholly-owned subsidiary of the Corporation
("Subsidiary"), to be merged with and into the Corporation;
FURTHER RESOLVED, that the Corporation shall assume all
of the obligations of Subsidiary pursuant to said Section 253 and
that all of the outstanding shares of capital stock of Subsidiary
be, and they are hereby, cancelled and retired and no shares of
the capital stock of the Corporation, cash or other consideration
shall be issued in exchange therefor;
FURTHER RESOLVED, that the merger of Subsidiary with
and into the Corporation shall become effective upon the filing
with the Secretary of State of the State of Delaware, in
accordance with Section 103 of the General Corporation Law of the
State of
- 2 -
<PAGE>
Delaware, of a Certificate of Ownership and Merger pursuant to
said Section 253;
FURTHER RESOLVED, that the proper officers of the
Corporation be, and they are hereby, authorized and directed to
execute a Certificate of Ownership and Merger setting forth the
resolutions to merge Subsidiary with and into the Corporation, to
cause the same to be filed with the Secretary of State of the
State of Delaware and a certified copy thereof to be recorded in
the office of the Recorder of Deeds of the appropriate county in
the State of Delaware and to do all acts and things whatsoever,
whether within or without the State of Delaware, which may be in
any way necessary or proper to effect the merger;
FURTHER RESOLVED, that upon the effectiveness of the
merger of Subsidiary with and into the Corporation, the name of
the Corporation shall be "Aerial Communications, Inc." and the
first article of the Restated Certificate of Incorporation of
Corporation, as amended and in effect immediately prior to the
time the Certificate of Ownership and Merger is filed with the
Secretary of State of the State of Delaware, shall be amended to
read after such time as follows:
"ARTICLE I
The name of the corporation is:
AERIAL COMMUNICATIONS, INC."
FURTHER RESOLVED, that anything herein or elsewhere to
the contrary notwithstanding, the merger of Subsidiary with and
into the Corporation may be abandoned by the Board of Directors
of the Corporation at any time prior to the date of filing of the
Certificate of Ownership and Merger with the Secretary of State
of the State of Delaware;
FURTHER RESOLVED, that upon the effectiveness of the
merger of Subsidiary with and into the Corporation, the proper
officers of the Corporation be, and they are hereby, authorized
and directed to cause, if necessary or appropriate, the
Certificate of Ownership and Merger and any required
supplementary or other documents to be filed with the Secretary
of State of each state in which the Corporation is qualified to
do business as a foreign corporation as evidence of the change of
the Corporation's name;
FURTHER RESOLVED, that upon the effectiveness of the
merger of Subsidiary with and into the Corporation, the proper
officers of the Corporation be, and they are hereby, authorized
and directed to cause, if necessary or appropriate, the
Certificate of Ownership and Merger to be recorded in the United
States Patent and
- 3 -
<PAGE>
Trademark Office and in any appropriate foreign registry office
of patents and trademarks, as evidence of the change of the
Corporation's name;
FURTHER RESOLVED, that in the event that the purposes
of the above resolutions of the Board of Directors cannot be
accomplished as planned for any reason whatsoever, the officers
of this Corporation are authorized and directed to take all such
actions as they may deem necessary or advisable in order to
accomplish such purposes to the extent practicable (including,
without limitation, adjustment of the specific wording (but not
the sense or purpose) of the foregoing resolutions, if necessary,
to comply with applicable state filing requirements); provided,
that the essential purposes achieved remain the same as those
approved and adopted by this Board by the foregoing resolutions;
and
FURTHER RESOLVED, that the officers of the Corporation
be, and they are hereby, authorized and directed to execute and
deliver, on behalf of the Corporation, such other documents,
instruments and certificates and to take such other actions as
each such officer, in his or her sole discretion, deems necessary
or appropriate to carry out the full intent and purposes of the
foregoing resolutions.
SIXTH: This merger shall be effective upon filing with
the Secretary of State of the State of Delaware.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Ownership and Merger to be signed by its Chairman
and attested by its Secretary this 12th day of November, 1996.
AMERICAN PORTABLE TELECOM, INC.
By: /s/ LeRoy T. Carlson, Jr.
------------------------------
LeRoy T. Carlson, Jr.
Chairman
ATTEST:
By: /s/ Michael G. Hron
-------------------------
Michael G. Hron
Secretary
- 5 -
<PAGE>
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF INCORPORATION
OF
AERIAL COMMUNICATIONS, INC.
f/k/a AMERICAN PORTABLE TELECOM, INC.
The undersigned officers, LeRoy T. Carlson, Jr. and
Michael G. Hron, Chairman and Secretary, respectively, of AERIAL
COMMUNICATIONS, INC., f/k/a AMERICAN PORTABLE TELECOM, INC., a
corporation organized and existing under the General Corporation
Law of the State of Delaware (the "Corporation"), DO HEREBY
CERTIFY THAT:
1. This Corporation was incorporated on the 23rd day
of July, 1991, pursuant to the General Corporation Law of the
State of Delaware.
2. A Restated Certificate of Incorporation of the
Corporation was filed on April 19, 1996, which amended and
restated the Certificate of Incorporation, as amended, of the
Corporation.
3. This Certificate of Correction is being filed for
the purpose of changing the reference to "1996" in the first
sentence of paragraph (a) of Article VI of the Restated
Certificate of Incorporation referred to in 2 above to refer to
"1997." Such change is being made to reflect the intended year,
which was not properly reflected in the Restated Certificate of
Incorporation due to a clerical error.
<PAGE>
IN WITNESS WHEREOF, we have hereunto subscribed our
names this 12th day of November, 1996.
AERIAL COMMUNICATIONS, INC.
By: /s/ LeRoy T. Carlson, Jr.
------------------------------
LeRoy T. Carlson, Jr.
Chairman
Attest:
/s/ Michael G. Hron
- - -------------------------
Michael G. Hron
Secretary
