Exhibit 3.1(c)
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF DESIGNATION
OF THE
PREFERRED STOCK, SERIES C
(WITHOUT PAR VALUE)
OF
TRIBUNE COMPANY
PURSUANT TO SECTION 242 OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned duly authorized officer of Tribune Company (the "Company"),
a corporation organized and existing under the Delaware General Corporation Law
(the "DGCL"), in accordance with the provisions of Section 103 thereof, and
pursuant to Section 242 thereof, DOES HEREBY CERTIFY:
FIRST: Pursuant to the authority conferred upon the Board of Directors by
the Amended and Restated Certificate of Incorporation of the Company (the
"Certificate of Incorporation"), the Board of Directors of the Company (the
"Board" or "Board of Directors") on June 12, 2000 adopted resolutions creating
823,568 shares of Series C Preferred Stock (as defined below);
SECOND: On June 12, 2000, the Company filed a Certificate of Designation
establishing the rights, preferences, privileges and restrictions relating to
the Series C Preferred Stock;
THIRD: On February 13, 2001, the Board of Directors duly adopted and
approved the amendment of the Certificate of Designation to read in its entirety
as set forth herein; and
FOURTH: The designation of and the rights, preferences, privileges and
restrictions relating to Series C Preferred Stock are hereby fixed as set forth
herein and the original Certificate of Designation is hereby replaced by this
Certificate of Amendment to Certificate of Designation and is hereby amended to
read in its entirety as follows:
RESOLVED, that pursuant to the authority expressly granted to and vested in
the Board of Directors by provisions of the Certificate of Incorporation, and
the DGCL, the issuance of a series of the Company's preferred stock, without par
value (the "Preferred Stock"), which shall consist of 823,568 of the 12,000,000
shares of Preferred Stock that the Company now has authority to issue, be, and
the same hereby is, authorized, and the Board of Directors hereby fixes the
powers, designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions, of the
shares of such series (in addition to the powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions, set forth in the Certificate of
Incorporation that may be applicable to the Preferred Stock) as follows:
1. DESIGNATION AND RANK. The designation of such series of the Preferred
Stock authorized by this resolution shall be the 8% Cumulative Convertible
Preferred Stock, Series C (the "Series C Preferred Stock"). The number of shares
of Series C Preferred Stock shall be 823,568. The Series C Preferred Stock shall
rank prior to the Common Stock (as hereinafter defined) of the Company and to
all other classes and series of equity securities of the Company now or
hereafter authorized, issued or outstanding (the Common Stock and such other
classes and series of equity securities not expressly designated as ranking on a
parity with or senior to the Series C Preferred Stock collectively may be
referred to herein as the "Junior Stock") as to dividend rights and rights upon
liquidation, winding up or dissolution of the Company, other than any classes or
series of equity securities of the Company expressly designated as ranking on a
parity with (the "Parity Stock") or senior to (the "Senior Stock") the Series C
Preferred Stock as to dividend rights and rights upon liquidation, winding up or
dissolution of the Company. The Series C Preferred Stock shall be subject to
creation of Senior Stock, Parity Stock and Junior Stock, to the extent not
expressly prohibited by the Certificate of Incorporation or Section 5(c)(i) or
5(c)(ii) hereof, with respect to the payment of dividends and upon liquidation.
2. CUMULATIVE DIVIDENDS; PRIORITY.
(a) PAYMENT OF DIVIDENDS.
(i) The holders of record of shares of Series C Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cumulative cash dividends from the date
of issuance of such shares at the rate per annum per share of 8% ($40 per annum)
(the "Dividend Rate"), which shall be payable quarterly in arrears on the second
Thursday of March, June, September and December in each year (or if such day is
a non-business day, on the next business day), commencing on March 8, 2001 (each
of such dates a "Dividend Payment Date"). No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment or payments on
the Series C Preferred Stock that may be in arrears.
(ii) Each declared dividend shall be payable to holders of record
as they appear on the stock books of the Company at the close of business on
such record dates, not more than 60 calendar days preceding the applicable
Dividend Payment Dates therefor, as are determined by the Board of Directors
(each of such dates a "Record Date"). Quarterly dividend periods (each a
"Dividend Period") shall commence on and include the first day of January,
April, July, and October of each year and shall end on and include the last day
of March, June, September and December, respectively of such year. Dividends on
the shares of Series C Preferred Stock shall be fully cumulative and shall
accrue (whether or not declared) from the first day of each Dividend Period;
provided, however, that any dividend payable for any other Dividend Period
shorter than a full Dividend Period shall be computed on the basis of a 360-day
year composed of twelve 30-day months and the actual number of days elapsed in
the relevant Dividend Period.
(b) PRIORITY AS TO DIVIDENDS.
(i) Subject to the provisions hereof, no cash dividend or other
distribution (other than in Common Stock or other Junior Stock) shall be
declared or paid or set
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apart for payment on Preferred Stock that constitutes Parity Stock or Junior
Stock with respect to dividends for any Dividend Period unless full dividends on
the Series C Preferred Stock for the immediately preceding Dividend Period have
been or contemporaneously are declared and paid (or declared and a sum
sufficient for the payment thereof set apart for such payment). When dividends
are not paid in full (or declared and a sum sufficient for such full payment not
so set apart) upon the Series C Preferred Stock and any Parity Stock, all
dividends declared upon shares of Series C Preferred Stock and any Parity Stock
shall be declared pro rata with respect thereto, so that in all cases the amount
of dividends declared per share on the Series C Preferred Stock and such Parity
Stock shall bear to each other the same ratio that accrued dividends for the
then- current Dividend Period per share on the shares of Series C Preferred
Stock (which shall include any accumulation in respect of unpaid dividends for
prior Dividend Periods) and dividends, including accumulations, if any, of such
Parity Stock, bear to each other.
(ii) Except as provided in the preceding paragraph, full
dividends on the Series C Preferred Stock must be declared and paid or set apart
for payment for the immediately preceding Dividend Period before (A) any cash
dividend or other distribution (other than in Common Stock or other Junior
Stock) shall be declared or paid or set aside for payment upon the Common Stock
or any other Junior Stock of the Company or (B) any Common Stock or any other
Junior Stock is redeemed, purchased or otherwise acquired by the Company for any
consideration (or any moneys are paid to or made available for a sinking fund
for the redemption of any shares of any such stock), except by redemption into
or exchange for Junior Stock or (C) any Series C Preferred Stock or Parity Stock
is redeemed, purchased or otherwise acquired by the Company for any
consideration (or any moneys are paid to or made available for a sinking fund
for the redemption of any shares of any such stock). The Company shall not
permit any subsidiary of the Company to purchase or otherwise acquire for
consideration any shares of stock of the Company if under the preceding
sentence, the Company would be prohibited from purchasing or otherwise acquiring
such shares at such time and in such manner.
(iii) No dividend shall be paid or set aside for holders of the
Series C Preferred Stock for any Dividend Period unless full dividends on any
Preferred Stock that constitutes Senior Stock with respect to dividends for that
period have been or contemporaneously are declared and paid (or declared and a
sum sufficient for the payment thereof set apart for such payment).
(c) ADJUSTMENT TO DIVIDEND RATE. If the dividends received deduction
(the "DRD") contained in Section 243 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any comparable provision that may be adopted
subsequently, should be reduced or eliminated, then, upon receipt by the Company
of one or more written requests signed by holders of record of at least 50% of
the outstanding shares of Series C Preferred Stock (a "Rate Adjustment
Request"), the Company shall, for Dividend Periods commencing on or after such
Rate Adjustment Request, adjust the Dividend Rate by multiplying such rate by a
fraction, the numerator of which is .895 and the denominator of which is (1 -
.35 (1 - DRDP)). For purposes of the preceding formula, "DRDP" shall mean the
DRD percentage specified in Section 243(a)(1) of the Code, or any comparable
provision that may be adopted subsequently.
The Dividend Rate shall be adjusted only to take into account reductions in
the DRDP from the current 70% rate. In the case of any particular dividend
payment, no
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adjustment to the Dividend Rate shall be made to the extent that
such dividend payment is not made out of the "earnings and profits" of the
Company as determined under the Code. If, at the time of the payment of a
particular dividend, it is reasonably uncertain whether such dividend (or
portion thereof) will be paid out of the earnings and profits of the Company,
such dividend (or portion thereof) shall be presumed not to be paid out of
earnings and profits and, accordingly, no adjustment to the Dividend Rate shall
be made. If, and to the extent that, such dividend is subsequently determined to
have been paid out of earnings and profits, the Company shall, on the next
Dividend Payment Date, increase the amount of the dividend payment to take into
account the adjustment to the Dividend Rate that would have been made had the
previous dividend (or portion thereof) been treated as having been paid out of
earnings and profits of the Company.
The objective of this provision 2(c) is, in the event of a reduction of the
DRDP, to provide holders of the Preferred Stock with the same amount of net
dividends, on an after Federal tax basis, as would have been received at the
time of issuance of the Preferred Stock, taking into account the highest Federal
income tax rate applicable to corporations and the 70% DRD prevailing at the
time of issuance of the Preferred Stock. Accordingly, if fundamental changes are
made to the Federal income tax system (E.G., replacement of the DRD with a
dividends received credit), no adjustment to the Dividend Rate shall be made if
the dividends received by holders of the Preferred Stock, on an after Federal
tax basis, is not altered. All determinations required to be made hereunder
shall be made by the Board of Directors in its sole discretion.
3. CONVERSION AT OPTION OF THE COMPANY.
(a) GENERAL.
(i) The shares of the Series C Preferred Stock shall not be
convertible at the option of the Company except (A) following receipt of a Rate
Adjustment Request (as contemplated by Section 2(c)) or (B) upon the later to
occur of (x) the date on which a written notice has been mailed or otherwise
distributed by the Company to each record holder of the Series C Preferred Stock
stating that the assets of either Chandler Trust No. 1 or Chandler Trust No. 2
have been distributed to the beneficiaries thereof and (y) February 1, 2025 (the
date of receipt of a Rate Adjustment Request or such later date being the
"Convertibility Date"). Subject to and upon compliance with the provisions of
this Section 3, shares of Series C Preferred Stock may be converted, in whole or
in part, at the election of the Company by resolution of the Board of Directors,
upon notice as provided in Section 3(b), at any time or from time to time on or
after the Convertibility Date. Conversion shall be made by delivering to the
holders of Series C Preferred Stock, in respect of the conversion of each share
of Series C Preferred Stock so converted, certificates representing the number
of fully paid and non-assessable shares (the "Conversion Shares") of common
stock, par value $.01 per share, of the Company ("Common Stock") equal to the
quotient of (1) $500 plus accrued and unpaid dividends on such shares of Series
C Preferred Stock to the Conversion Date (as hereinafter defined) divided by (2)
the Common Share Value (as hereinafter defined). The aggregate number of shares
of Common Stock that a holder of shares of Series C Preferred Stock that have
been converted is entitled to receive pursuant to this Section 3 or Section 4 is
hereinafter referred to as the "Aggregate Conversion Shares."
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(ii) The "Common Share Value" shall mean the average of the
closing prices of the Common Stock for the 20 days during which trades of Common
Stock occurred immediately preceding the Valuation Date (as defined below), as
reported in THE WALL STREET JOURNAL, or, if no closing prices were so reported,
the average of the mean between the high bid and low asked price per share of
Common Stock for each of the 20 days during which trades of Common Stock
occurred immediately preceding the Valuation Date in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or such other system then in use, or, if the Common
Stock is not then quoted by any such organization, the average of the mean
between the closing bid and asked prices per share of Common Stock for each of
the 20 days during which trades of Common Stock occurred immediately preceding
the Valuation Date, as furnished by a professional market maker making a market
in the Common Stock, or, if there is no such market maker, the fair market value
of a share of Common Stock determined by whatever method the Board of Directors
reasonably determines to use. In the case of a conversion pursuant to this
Section 3, the "Valuation Date" shall mean the Conversion Notice Date (as
defined in Section 3(b)), and in the case of any conversion pursuant to Section
4, the "Valuation Date" shall mean the Conversion Time (as hereinafter defined).
(b) NOTICE OF CONVERSION. Notice of any conversion, setting forth (i)
the Conversion Date (as defined in Section 3(c) hereof), (ii) a statement that
dividends on the shares of Series C Preferred Stock to be converted will cease
to accrue on such Conversion Date, and (iii) the method(s) by which the holders
may surrender the certificates representing shares of Series C Preferred Stock
that have been converted and obtain the Conversion Shares therefor, shall be
mailed, postage prepaid, on a date (the "Conversion Notice Date") that is at
least 15 days but not more than 45 days prior to said Conversion Date to each
holder of record of the Series C Preferred Stock to be converted at his, her or
its address as the same shall appear on the books of the Company. If less than
all the shares of the Series C Preferred Stock owned by such holder are then to
be converted, the notice shall specify the number of shares thereof that are to
be converted and the numbers of the certificates representing such shares.
(c) METHOD OF CONVERSION. The surrender of any certificate evidencing
shares of Series C Preferred Stock that have been converted shall be made by the
holder thereof by the surrender of the certificate or certificates formerly
representing the shares of Series C Preferred Stock converted (with proper
endorsement or instruments of transfer) to the Company at the principal office
of the Company (or such other office or agency of the Company as the Company may
designate in writing to the holder or holders of the Series C Preferred Stock)
at any time during its usual business hours. Shares of Series C Preferred Stock
called for conversion shall be deemed to have been converted, and the shares of
Common Stock to be issued in respect of the shares of Series C Preferred Stock
converted shall be deemed to have been issued, as of the close of business on
the date fixed for conversion (the "Conversion Date"), without regard to when
certificates evidencing such Series C Preferred Stock are surrendered pursuant
to this Section 3(c) or certificates evidencing such Common Stock are issued
pursuant to Section 3(d). The rights of the holder of Series C Preferred Stock
that has been converted, except for the right to receive the Aggregate
Conversion Shares therefor in accordance herewith (and any cash payments to
which such holder is entitled pursuant to Section 3(e) hereof), shall cease on
the Conversion Date. In the case of lost or destroyed certificates evidencing
ownership
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of shares of Series C Preferred Stock that have been converted, the holder
shall submit proof of loss or destruction and such indemnity as shall be
required by the Company.
(d) ISSUANCE OF CERTIFICATES FOR COMMON STOCK. As soon as practicable
after its receipt of any certificate or certificates formerly evidencing
ownership of shares of Series C Preferred Stock that have been converted, the
Company shall issue and shall deliver to the person for whose account such
certificates formerly representing shares of Series C Preferred Stock were so
surrendered, or on his, her or its written order, a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such shares of Series C Preferred Stock and a check or cash payment (if any) to
which such holder is entitled with respect to fractional shares as determined by
the Company, in accordance with Section 3(e) hereof.
(e) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of any shares of Series C
Preferred Stock, but the holder thereof will receive in cash an amount equal to
the value of such fractional share of Common Stock based on the Common Share
Value. If more than one share of Series C Preferred Stock shall be converted at
one time for the account of the same holder, the number of full shares issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of such shares so surrendered.
(f) PAYMENT OF TAXES. The Company shall pay any tax in respect of the
issuance of stock certificates on conversion of shares of Series C Preferred
Stock. The Company shall not, however, be required to pay any tax that may be
payable in respect of any transfer involved in the issuance and delivery of
stock in any name other than that of the holder of the shares converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issuance thereof shall
have paid to the Company the amount of any such tax or shall have established to
the satisfaction of the Company that such tax has been paid.
(g) COMMON STOCK RESERVED FOR CONVERSION. The Company shall at all
times from and after the Conversion Date reserve and keep available out of its
authorized and unissued Common Stock the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of Series C Preferred
Stock and shall take all such action as may be required from time to time in
order that it may validly and legally issue fully paid and non-assessable shares
of Common Stock upon conversion of the Series C Preferred Stock.
4. CONVERSION AT THE OPTION OF HOLDERS.
(a) GENERAL. After the later to occur of (i) the date on which a
written notice has been mailed or otherwise distributed by the Company to each
record holder of the Series C Preferred Stock stating that the assets of either
Chandler Trust No. 1 or Chandler Trust No. 2 have been distributed to the
beneficiaries thereof and (ii) February 1, 2025, the holder of any Series C
Preferred Stock may convert pursuant to this Section 4 all or any part (in whole
number of shares only) of the Series C Preferred Stock held by such holder into
fully paid and non-assessable shares of Common Stock. The number of shares of
Common Stock into which a share of Series C Preferred Stock may be converted
shall be equal to the quotient of (1) $500
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plus accrued and unpaid dividends on such shares of Series C Preferred Stock to
the Conversion Time (as hereinafter defined) divided by (2) the Common Share
Value.
(b) METHOD OF CONVERSION. Each conversion of Series C Preferred Stock
shall be effected by the surrender of the certificate or certificates
representing the shares of Series C Preferred Stock to be converted (with proper
endorsement or instruments of transfer) to the Company at the principal office
of the Company (or such other office or agency of the Company as the Company may
designate in writing to the holder or holders of the Series C Preferred Stock)
at any time during its usual business hours, together with written notice by the
holder of such Series C Preferred Stock stating that such holder desires to
convert the shares of Series C Preferred Stock, or a stated number of such
shares, represented by such certificate or certificates, which notice shall also
specify the name or names (with addresses) and denominations in which the
certificate or certificates for the Common Stock shall be issued and shall
include instructions for delivery thereof. Any conversion pursuant to this
Section 4 shall be deemed to have been effected as of the close of business on
the date on which such certificate or certificates shall have been surrendered
and such notice shall have been received, and at such time (the "Conversion
Time") the rights of the holder of Series C Preferred Stock (or specified
portion thereof) as such holder shall cease and the person or persons in whose
name or names any certificate or certificates for shares of Common Stock are to
be issued upon conversion shall be deemed to have become the holder or holders
of record of the shares of Common Stock represented thereby. In the case of lost
or destroyed certificates evidencing ownership of shares of Series C Preferred
Stock to be converted, the holder shall submit proof of loss or destruction and
such indemnity as shall be required by the Company.
(c) ISSUANCE OF CERTIFICATES FOR COMMON STOCK. As soon as practicable
after its receipt of any certificate or certificates evidencing ownership of
shares of Series C Preferred Stock to be converted pursuant to this Section 4,
the Company shall issue and shall deliver to the person for whose account such
shares of Series C Preferred Stock were so surrendered, or on his, her or its
written order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such shares of Series C Preferred
Stock and a check or cash payment (if any) to which such holder is entitled with
respect to fractional shares as determined by the Company, in accordance with
Section 4(d) hereof.
(d) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of any shares of Series C
Preferred Stock, but the holder thereof will receive in cash an amount equal to
the value of such fractional share of Common Stock based on the Common Share
Value. If more than one share of Series C Preferred Stock shall be converted at
one time for the account of the same holder, the number of full shares issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of such shares so surrendered.
(e) PAYMENT OF TAXES. The Company shall pay any tax in respect of the
issuance of stock certificates on conversion of shares of Series C Preferred
Stock. The Company shall not, however, be required to pay any tax that may be
payable in respect of any transfer involved in the issuance and delivery of
stock in any name other than that of the holder of the shares converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issuance thereof shall
have paid
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to the Company the amount of any such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
(f) COMMON STOCK RESERVED FOR CONVERSION. The Company shall at all
times from and after the Conversion Time reserve and keep available out of its
authorized and unissued Common Stock the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of Series C Preferred
Stock and shall take all such action as may be required from time to time in
order that it may validly and legally issue fully paid and non-assessable shares
of Common Stock upon conversion of the Series C Preferred Stock.
5. VOTING RIGHTS.
(a) GENERAL VOTING RIGHTS. Except as expressly provided hereinafter in
this Section 5, or as otherwise from time to time required by applicable law,
the Series C Preferred Stock shall have no voting rights.
(b) VOTING RIGHTS UPON DIVIDEND ARREARS.
(i) RIGHT TO ELECT DIRECTORS. In the event that an amount equal
to six quarterly dividend payments on the Series C Preferred Stock shall have
accrued and be unpaid (the occurrence of such contingency marking the beginning
of a period herein referred to as the "Default Period," which shall extend until
such time as all accrued and unpaid dividends for all previous Dividend Periods
and for the current Dividend Period on all shares of Series C Preferred Stock
then outstanding shall have been declared and paid or declared and a sum
sufficient for such full payment set apart for payment), the holders of the
Series C Preferred Stock shall have the right, voting separately as a class
together with holders of shares of any Parity Stock upon which like voting
rights have been conferred and are exercisable (such shares of Series C
Preferred Stock and shares of Parity Stock are hereinafter referred to as
"Voting Parity Stock"), to elect two members of the Board of Directors, each
member to be in addition to the then authorized number of directors, at the next
annual meeting of stockholders or at a special meeting called as described below
and thereafter until the Default Period shall have ended.
(ii) SPECIAL MEETING; WRITTEN CONSENT. Whenever such voting
right shall vest, it may be exercised initially by the vote of the holders of
a plurality of the voting power of Series C Preferred Stock and Voting Parity
Stock present and voting as a single class, in person or by proxy, at a
special meeting of holders of the Series C Preferred Stock and Voting Parity
Stock or at the next annual meeting of stockholders. A special meeting for
the exercise of such right shall be called by the Secretary of the Company as
promptly as possible, and in any event within 10 days after receipt of a
written request signed by the holders of record of at least 25% of the
outstanding shares of the Series C Preferred Stock and Voting Parity Stock,
subject to any applicable notice requirements imposed by law or regulation.
Notwithstanding the provisions of this paragraph, no such special meeting
shall be required to be held during the 90-day period preceding the date
fixed for the annual meeting of stockholders. Any action required or
permitted to be taken at any such special meeting of such holders may be
taken by a consent or consents in writing of such stockholders, setting forth
the action so taken, which consent or consents shall be signed by the holders
of Series C Preferred Stock and Voting Parity Stock
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representing a majority of the voting power of shares of such Series C Preferred
Stock and Voting Parity Stock and shall be delivered to the Company in the
manner set forth from time to time in the DGCL.
(iii) TERM OF OFFICE OF DIRECTORS. Any director who shall have
been elected by holders of the Series C Preferred Stock and Voting Parity Stock
entitled to vote in accordance with this subparagraph (b) shall hold office for
a term expiring (subject to the earlier expiry of such term, as set forth below)
at the annual meeting of stockholders at which the term of office of his class
shall expire and during such term may be removed at any time, only for cause,
by, and only by, the affirmative vote of the holders of record of a majority of
the voting power of the Series C Preferred Stock and Voting Parity Stock present
and voting as a single class, in person or by proxy, at a special meeting of
such stockholders called for such purpose, and any vacancy created by such
removal may also be filled at such meeting. A meeting for the removal of a
director elected by the holders of the Series C Preferred Stock and Voting
Parity Stock and the filling of the vacancy created thereby shall be called by
the Secretary of the Company as promptly as possible and in any event within 10
days after receipt of a request therefor signed by the holders of not less than
25% of the aggregate outstanding voting power of the Series C Preferred Stock
and Voting Parity Stock, subject to any applicable notice requirements imposed
by law or regulation. Such meeting shall be held at the earliest practicable
date thereafter, provided that no such meeting shall be required to be held
during the 90-day period preceding the date fixed for the annual meeting of
stockholders. Simultaneously with the expiration of the Default Period, the
terms of office of all directors elected by the holders of the shares of Series
C Preferred Stock and the Voting Parity Stock pursuant hereto then in office
shall, without further action, thereupon terminate unless otherwise required by
law. Upon such termination the number of directors constituting the Board of
Directors of the Company shall, without further action, be reduced by two,
subject always to the increase of the number of directors pursuant to the
foregoing provisions in the case of the future right of holders of the shares of
Series C Preferred Stock and Voting Parity Stock to elect directors as provided
above.
(iv) VACANCIES. Any vacancy caused by the death, resignation or
removal of a director who shall have been elected in accordance with this
subparagraph (b) may be filled by the remaining director so elected or, if not
so filled, by a vote of holders of a plurality of the voting power of the Series
C Preferred Stock and Voting Parity Stock present and voting as a single class,
in person or by proxy, at a meeting called for such purpose. Unless such vacancy
shall have been filled by the remaining director as aforesaid, such meeting
shall be called by the Secretary of the Company at the earliest practicable date
after such death or resignation, and in any event within 10 days after receipt
of a written request signed by the holders of record of at least 25% of the
outstanding shares of the Series C Preferred Stock and Voting Parity Stock,
subject to any applicable notice requirements imposed by law or regulation.
Notwithstanding the provisions of this paragraph, no such special meeting shall
be required to be held during the 90-day period preceding the date fixed for the
annual meeting of stockholders.
(v) STOCKHOLDERS' RIGHT TO CALL MEETING. If any meeting of the
holders of the Series C Preferred Stock and Voting Parity Stock required by this
subparagraph (b) to be called shall not have been called within 30 days after
personal service of a written request therefor upon the Secretary of the Company
or within 30 days after mailing the same within the United States of America by
registered mail addressed to the Secretary of the
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Company at its principal executive offices, subject to any applicable notice
requirements imposed by law or regulation, then the holders of record of at
least 25% of the outstanding shares of the Series C Preferred Stock and Voting
Parity Stock may designate in writing one of their number to call such meeting
at the expense of the Company, and such meeting may be called by such person so
designated upon the notice required for annual meetings of stockholders or such
shorter notice (but in no event shorter than permitted by law or regulation) as
may be acceptable to the holders of a majority of the total voting power of the
Series C Preferred Stock and Voting Parity Stock. Any holder of Series C
Preferred Stock and Voting Parity Stock so designated shall have access to the
Series C Preferred Stock and Voting Parity Stock books of the Company for the
purpose of causing such meeting to be called pursuant to these provisions.
(vi) QUORUM. At any meeting of the holders of the Series C
Preferred Stock called in accordance with the provisions of this subparagraph
(b) for the election or removal of directors, the presence in person or by proxy
of the holders of a majority of the total voting power of the Series C Preferred
Stock and Voting Parity Stock shall be required to constitute a quorum; in the
absence of a quorum, the holders of a majority of the total number of votes
present in person or by proxy shall have power to adjourn the meeting from time
to time without notice other than an announcement at the meeting, until a quorum
shall be present.
(c) VOTING RIGHTS ON EXTRAORDINARY Matters.
(i) So long as any shares of Series C Preferred Stock shall be
outstanding, the holders of the Series C Preferred Stock shall have the right,
voting separately as a class together with holders of shares of any Voting
Parity Stock (with two-thirds of the voting power of such stock at the time
outstanding given in person or by proxy at a meeting at which the holders of
such shares shall be entitled to vote separately as a class, or by a consent or
consents in writing setting forth such approval, which consent shall be
delivered to the Company in the manner set forth from time to time in the DGCL,
required for approval by such holders), to vote on: (i) the liquidation or
dissolution of the Company; (ii) any proposal to authorize, create or issue, or
increase the authorized or issued amount of, any class or series of capital
stock ranking pari passu with, or prior to, the shares of the Series C Preferred
Stock in powers, rights or preferences upon the liquidation, dissolution or
winding up of affairs of the Company or as to dividends; and (iii) any proposal
to amend by merger, amendment or otherwise (or otherwise alter or repeal) the
Certificate of Incorporation (or this resolution) if such amendment, alteration
or repeal would increase or decrease the aggregate number of authorized shares
of Series C Preferred Stock or any Voting Parity Stock, increase or decrease the
par value of the shares of Series C Preferred Stock or any Voting Parity Stock,
or alter or change the powers, preferences, or special rights of the shares of
Series C Preferred Stock or any Voting Parity Stock so as to affect them
adversely. An amendment that increases the number of authorized shares of any
class or series of Preferred Stock or authorizes the creation or issuance of
other classes or series of Preferred Stock, in each case ranking junior to the
Series C Preferred Stock with respect to the payment of dividends and
distribution of assets upon liquidation, dissolution or winding up shall not be
considered to be such an adverse change.
(ii) So long as any shares of Series C Preferred Stock shall be
outstanding and unless the consent or approval of a greater number of shares
shall then be required by applicable law, without first obtaining the approval
of the holders of at least two-
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thirds of the voting power of the Series C Preferred Stock at the time
outstanding (voting separately as a class together with the holders of shares
of Voting Parity Stock) given in person or by proxy at a meeting at which the
holders of such shares shall be entitled to vote separately as a class (or by
a consent or consents in writing setting forth such approval, which consent
shall be delivered to the Company in the manner set forth from time to time
in the DGCL), the Company shall not either directly or indirectly or through
merger or consolidation with any other entity, (i) authorize, create or
issue, or increase the authorized or issued amount of, any class or series of
capital stock that would place or have the effect of placing restrictions on
the obligation of the Company to pay dividends to the holders of Series C
Preferred Stock or to perform any of its obligations to the holders of Series
C Preferred Stock at any time; or (ii) authorize, enter into or permit to
exist any covenant or agreement that would place or have the effect of
placing restrictions on the obligations of the Company to pay dividends to
holders of Series C Preferred Stock or to perform any of its other
obligations to the holders of Series C Preferred Stock at any time; provided,
however, that notwithstanding the foregoing, the Company may from time to
time enter into credit agreements and indentures that provide for limitations
on the ability of the Company to pay dividends on its capital stock
generally, so long as the Board of Directors determines, in its sole
discretion, that such limitation is necessary in order to obtain financing on
commercially reasonable terms.
(d) ONE VOTE PER SHARE. In connection with any matter on which holders
of the Series C Preferred Stock are entitled to vote as provided in
subparagraphs (b) and (c) above, or any other matter on which the holders of the
Series C Preferred Stock are entitled to vote as one class or otherwise pursuant
to applicable law or the provisions of the Certificate of Incorporation, each
holder of Series C Preferred Stock shall be entitled to one vote for each share
of Series C Preferred Stock held by such holder.
6. NO SINKING FUND. No sinking fund will be established for the retirement
or redemption of shares of Series C Preferred Stock.
7. LIQUIDATION RIGHTS; PRIORITY.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Company, the
holders of shares of the Series C Preferred Stock shall be entitled to receive,
out of the assets of the Company, whether such assets are capital or surplus and
whether or not any dividends as such are declared, $500 per share plus an amount
equal to all accrued and unpaid dividends for the then-current plus all prior
Dividend Periods, and no more, before any distribution shall be made to the
holders of the Common Stock or any other class of stock or series thereof
ranking junior to the Series C Preferred Stock with respect to the distribution
of assets upon liquidation, dissolution or winding up of the Company. Unless
specifically designated as junior or senior to the Series C Preferred Stock with
respect to the liquidation, dissolution or winding up of the affairs of the
Company or as to dividends, all other series or classes of Preferred Stock of
the Company shall rank on a parity with the Series C Preferred Stock with
respect to the distribution of assets.
(b) Nothing contained in this Section 7 shall be deemed to prevent
conversion of shares of the Series C Preferred Stock by the Company in the
manner provided in
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Section 3. Neither the merger nor consolidation of the Company into or with any
other entity, nor the merger or consolidation of any other entity into or with
the Company, nor a sale, transfer or lease of all or any part of the assets of
the Company, shall be deemed to be a liquidation, dissolution or winding up of
the Company within the meaning of this Section 7.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, stating a payment date
and the place where the distributable amounts shall be payable, shall be given
by mail, postage prepaid, no less than 30 days prior to the payment date stated
therein, to the holders of record of the Series C Preferred Stock at their
respective addresses as the same shall appear on the books of the Company.
(d) If the amounts available for distribution with respect to the
Series C Preferred Stock and all other outstanding stock of the Company ranking
on a parity with the Series C Preferred Stock upon liquidation, dissolution or
winding up are not sufficient to satisfy the full liquidation rights of all the
outstanding Series C Preferred Stock and stock ranking on a parity therewith,
then the holders of each series of such stock will share ratably in any such
distribution of assets in proportion to the full respective preferential amount
(which in the case of the Series C Preferred Stock shall mean the amounts
specified in Section 7(a) and in the case of any other series of preferred stock
may include accumulated dividends if contemplated by such series) to which they
are entitled.
8. STATUS OF SHARES CONVERTED. Shares of Series C Preferred Stock converted
or purchased or otherwise acquired for value by the Company, shall, after such
event, have the status of authorized and unissued shares of Preferred Stock
without designation and may be reissued by the Company at any time as shares of
any series of Preferred Stock.
9. EFFECTIVENESS. This certificate shall be effective as of 5:00 p.m., New
York City time, on February 13, 2001.
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IN WITNESS WHEREOF, Tribune Company has caused this certificate to be
signed by Crane H. Kenney, its Senior Vice President, General Counsel and
Secretary, this 13th day of February, 2001.
TRIBUNE COMPANY
By: /s/ Crane H. Kenney
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Crane H. Kenney
Senior Vice President,
General Counsel and Secretary
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