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EXHIBIT 4.6
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ARCH COMMUNICATIONS GROUP, INC.
Arch Communications Group, Inc. (hereinafter called the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, does hereby certify as follows:
At a duly convened meeting of the Board of Directors of the Corporation, a
resolution was duly adopted pursuant to Section 242 of the General Corporation
Law of the State of Delaware setting forth amendments to the Restated
Certificate of Incorporation of the Corporation, as amended by a Certificate of
Designation dated October 13, 1995 stating the designation and number of shares,
and fixing the relative rights, preferences and limitations, of the
Corporation's Series B Junior Participating Preferred Stock (the "Series B
Certificate of Designation") and a Certificate of Designation dated June 29,
1998 stating the designation and number of shares, and fixing the relative
rights, preferences and limitations, of the Corporation's Series C Convertible
Preferred Stock (as so amended, the "Restated Certificate of Incorporation"),
and declaring such amendments to be advisable. The stockholders of the
Corporation duly approved said proposed amendments in accordance with Section
242 of the General Corporation Law of the State of Delaware at a duly convened
meeting of stockholders. The resolutions setting forth the amendments are as
follows:
RESOLVED: That Article FOURTH of the Restated Certificate of
Incorporation of the Corporation, as previously amended,
be and hereby is further amended by deleting paragraph (a)
of said Article FOURTH and inserting in lieu thereof the
following:
(a) The aggregate number of shares of all classes of stock which
the Corporation shall have authority to issue is 375,000,000
shares, consisting of (i) 300,000,000 shares of Common Stock,
$.01 par value per share ("Common Stock"), (ii) 65,000,000 shares
of Class B Common Stock, $.01 par value per
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share ("Class B Common Stock"), and (iii) 10,000,000 shares of
preferred stock, $.01 par value per share ("Preferred Stock"), of
which 300,000 shares have been designated as Series B Junior
Participating Preferred Stock, $.01 par value per share, 250,000
shares have been designated as Series C Convertible Preferred
Stock, $.01 par value per share, and 9,450,000 shares remain
available for future designation and issuance in accordance with
the General Corporation Law of the State of Delaware.
FURTHER
RESOLVED: That Article FOURTH of the Restated Certificate of Incorporation
be and hereby is amended by deleting subparagraph (b)(i) of said
Article FOURTH and inserting in lieu thereof the following:
(i) Common Stock and Class B Common Stock.
(A) Subject to the provisions of any series of Preferred
Stock which may at the time be outstanding, the holders of Common
Stock and Class B Common Stock shall be entitled to receive, when
and as declared from time to time by the Board of Directors out
of any funds legally available for the purpose, such dividends as
may be declared from time to time by the Board of Directors. When
and as dividends are declared thereon, whether payable in cash,
property or securities of the Corporation, each holder of Common
Stock or Class B Common Stock will be entitled to participate in
such dividends ratably on a per share basis. In the event of any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, or upon the distribution of its
assets, after the payment in full or the setting apart for
payment of such preferential amounts, if any, to which the
holders of Preferred Stock at the time outstanding shall be
entitled, the remaining assets of the Corporation available for
payment and distribution to stockholders shall, subject to any
participating or similar rights of any series of Preferred Stock
at the time outstanding, be distributed ratably among the holders
of Common Stock and Class B Common Stock at the time outstanding
on a per share basis. Shares of Common Stock shall have no
preference, conversion, exchange, preemptive or other similar
rights. Shares of Class B Common Stock shall have no preference,
exchange, preemptive right or other similar rights, shall be
identical in all respects to shares of Common Stock except as set
forth in subparagraphs (B), (C) and (D) below, and shall have no
conversion rights except as set forth in subparagraphs (C) and
(D) below.
(B) Except as otherwise required by the General Corporation
Law of the State of Delaware or this Certificate of
Incorporation, on all matters to be voted on by the Corporation's
stockholders, the Common Stock will be entitled to one vote per
share. Except as otherwise required by the General
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Corporation Law of the State of Delaware or this Certificate of
Incorporation, the Class B Common Stock shall not be entitled to
vote with respect to the election of directors and shall be
entitled to 1/100th vote per share on all other matters to be
voted on by the Corporation's stockholders. Except as otherwise
required by the General Corporation Law of the State of Delaware
or this Certificate of Incorporation, the Common Stock, the Class
B Common Stock and the Preferred Stock shall vote as a single
class with respect to all matters as to which such shares are
entitled to vote.
(C) Upon any transfer of shares of Class B Common Stock to a
person or entity other than (i) any person or entity who received
Class B Common Stock pursuant to Section 4.3(C) of the Debtor's
Third Amended Joint Plan of Reorganization dated November 30,
1998 as filed by MobileMedia Corporation, MobileMedia
Communications, Inc. and MobileMedia Communications, Inc.'s
direct and indirect subsidiaries with the United States
Bankruptcy Court for the District of Delaware, Case No. 97-174
(PJW), including the Rights Offering as defined therein (the
"Initial Distributees"), (ii) any other person or entity who,
when taken together with any of the Initial Distributees, would
constitute a "person" or "group" as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended, or (iii) any "affiliate" (as such term is defined in
Rule 405 promulgated under the Securities Act of 1933, as
amended) of any of them (collectively, the "Class B Holders"),
such transferred shares shall automatically convert into an
identical number of shares of Common Stock without any action on
the part of any person or entity (except as follows). The Class B
Holder transferring such shares shall surrender to the
Corporation at its principal office the share certificate or
certificates evidencing all such shares of Class B Common Stock
being transferred together with a certificate (a "Transfer
Certificate") (i) stating the number of shares of Class B Common
Stock being transferred to such transferee and (ii) stating that,
to the knowledge of such Class B Holder, after due inquiry, such
transferee is not a Class B Holder. Promptly after the delivery
of such share certificate or certificates, together with such
Transfer Certificate, the Corporation shall (i) cause to be
issued in the name of the transferee identified in the Transfer
Certificate and delivered to such Class B Holder, or to such
person as directed by his or its written order, a share
certificate or certificates for the number of shares of Common
Stock equal to the number of shares of Class B Common Stock being
transferred to such transferee and (ii) cause to be issued in the
name of such Class B Holder and delivered to such Class B Holder
a share certificate or certificates evidencing the number of
shares, if any, of Class B Common Stock evidenced by the share
certificate or certificate(s) surrendered to the Corporation not
being so transferred. Upon such transfer, all rights with respect
to the Class B Common Stock so converted will terminate, except
only the rights of the holders thereof, upon surrender of their
share certificate or certificates therefor, to receive
certificates registered in the name of its transferee for the
number of
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shares of Common Stock into which such Class B Common Stock has
been converted, and payment of any declared but unpaid dividends
thereon.
(D) Any Class B Holder may, at any time and from time to
time by surrendering to the Corporation at its principal office a
share certificate or certificates for shares of Class B Common
Stock together with a certificate (a "Conversion Certificate")
stating that such Class B Holder has transferred shares of Common
Stock (in an amount set forth in such Conversion Certificate) to
a transferee that, to the knowledge of such Class B Holder, after
due inquiry, is not a Class B Holder, request that the
Corporation exchange shares of Common Stock, on a one-for-one
basis, for a number of shares of Class B Common Stock not greater
than the number of shares of Common Stock set forth in such
Conversion Certificate. The Corporation shall, upon receipt of
such certificate or certificates and the Conversion Certificate
in a form the Corporation deems appropriate, issue an equal
number of shares of Common Stock in exchange for such number of
shares of Class B Common Stock set forth in any Conversion
Certificate.
(E) All certificates evidencing shares of Class B Common
Stock which are surrendered for transfer and conversion in
accordance with the provisions of subparagraph (C) above, or as
accepted for conversion in accordance with the provisions of
subparagraph (D) above, shall, from and after the presentation
thereof together with any other documentation required hereunder,
be deemed to have been retired and cancelled and the shares of
Class B Common Stock represented thereby converted into Common
Stock for all purposes. The Corporation may thereafter take such
appropriate action (without the need for stockholder action) as
may be necessary to reduce the authorized Class B Common Stock
accordingly.
FURTHER
RESOLVED: That Article FOURTH of the Restated Certificate of Incorporation
be and hereby is amended by deleting subparagraph (b)(ii) of
said Article FOURTH.
FURTHER
RESOLVED: That the Series B Certificate of Designations be and hereby is
amended by deleting Section 1 thereof and inserting in lieu
thereof the following:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series B Junior Participating Preferred
Stock" (the "Series B Preferred Stock") and the number of shares
constituting the Series B Preferred Stock shall be 300,000. Such
number of shares may be increased or decreased by resolution of
the Board of Directors; provided that no decrease shall reduce
the number of shares of Series B Preferred Stock to a number less
than the number of shares then outstanding plus the number of
shares reserved for
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issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series B Preferred
Stock.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its Chairman
and Chief Executive Officer and attested by its Secretary this 27th day of May,
1999.
ARCH COMMUNICATIONS GROUP, INC.
/s/ C. Edward Baker, Jr.
By:---------------------------------
C. Edward Baker, Jr.
Chairman and Chief Executive Officer
Dated: May 27, 1999
ATTEST:
/S/ GARRY B. WATZKE
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Garry B. Watzke
Secretary
