AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
BUSSE BROADCASTING CORPORATION
Under Sections 242, 245 and 303 of
the General Corporation Law of the
State of Delaware
FIRST. The name of the corporation is Busse Broadcasting Corporation
(the "Corporation").
SECOND. The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of the Corporation's registered agent at such address
is The Corporation Trust Company.
THIRD. This Amended and Restated Certificate of Incorporation, which
restates and amends the Amended and Restated Certificate of Incorporation of the
Corporation filed on May 3, 1995 (the "Original Amended and Restated Certificate
of Incorporation"), was duly adopted in accordance with the provisions of
Section 242 and Section 245 of the General Corporation Law of the State of
Delaware ("Delaware General Corporation Law") and in accordance with Section 303
of the Delaware General Corporation Law. The date of filing of the
Corporation's original Certificate of Incorporation was June 8, 1987.
FOURTH. The Original Amended and Restated Certificate of Incorporation is
hereby amended and restated so as to read in its entirety as follows:
ARTICLE 1
The name of the Corporation is:
Busse Broadcasting Corporation
ARTICLE 2
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, Delaware 19801. The name of the
Corporation's registered agent at such address is The Corporation Trust Company.
ARTICLE 3
PURPOSE
The nature of the business or purpose to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the Delaware General Corporation Law.
ARTICLE 4
CAPITAL STOCK
SECTION 4.01 AUTHORITY TO ISSUE STOCK. The Corporation shall
have authority to issue a total of 2,219,524.41 shares of capital stock,
2,154,000 shares of which shall be designated Common Stock, $0.01 par value per
share (the "Common Stock"), and 65,524.41 shares of which shall be designated
Series A Cumulative Convertible Perpetual Preferred Stock, $0.01 par value per
share (the "Series A Preferred Stock").
SECTION 4.02 COMMON STOCK.
(a) DIVIDENDS. Subject to the preferential rights of any class or
series within any such class of capital stock of the Corporation ranking senior
to the Common Stock as to dividends, including the Series A Preferred Stock, the
holders of shares of Common Stock shall be entitled to receive, out of funds
legally available therefor, such dividends as from time to time may be declared
by the Board of Directors of the Corporation. All such holders shall share
ratably, in accordance with the number of shares of Common Stock held by each
such holder, in all dividends paid on the Common Stock.
(b) DISTRIBUTION UPON LIQUIDATION, DISSOLUTION OR WINDING-UP. In
the event of any dissolution, liquidation or winding up of the affairs of the
Corporation, after payment or provision for payment of the debts and other
liabilities of the Corporation and subject to the preferential rights of any
class or series within any such class of capital stock of the Corporation
ranking senior to the Common Stock as to liquidation preferences, including
the Series A Preferred Stock, each holder of shares of Common Stock shall be
entitled to receive, ratably with each other holder of shares of Common
Stock, a portion of the assets of the Corporation available for distribution
to the holders of the Common Stock calculated by dividing the number of
shares of Common Stock held by such holder by the total number of shares of
Common Stock then outstanding.
(c) VOTING RIGHTS. Except as otherwise provided by applicable law,
each holder of shares of Common Stock shall be entitled to notice of, and the
right to vote at, any meeting of the stockholders of Common Stock. Each holder
of shares of Common Stock shall be entitled to one vote for each share of Common
Stock held by such holder.
SECTION 4.03 SERIES A PREFERRED STOCK.
(a) DIVIDENDS. Subject to the preferential rights of any series
of stock of the Corporation ranking senior to the Series A Preferred Stock as
to dividends, the holders of the Series A
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Preferred Stock shall be entitled to receive, whether or not funds are
legally available therefor, cumulative dividends payable in cash in an amount
per share of Series A Preferred Stock equal to $73.80 per annum until such
shares are redeemed or converted in accordance with paragraph (d) or (e),
respectively, of this Section 4.03. Such dividends shall be payable with
respect to each share of Series A Preferred Stock only upon the conversion
thereof into Common Stock or the redemption thereof in accordance with
paragraph (d) or (e), respectively, of this Section 4.03, or the liquidation,
dissolution or winding up of the Corporation in accordance with paragraph (b)
of this Section 4.03; PROVIDED, HOWEVER, in no event shall the Corporation
pay any such dividend if any of the Corporation's Senior Secured Notes due
2000 (or any indebtedness issued in exchange thereof) (collectively, the
"Senior Secured Notes") are then outstanding or such payment is then
prohibited by any other debt instrument of the Corporation or by applicable
law. If any distributions payable on any share of Series A Preferred Stock
shall not be paid for any reason, the right of the holders of such shares of
Series A Preferred Stock to receive payment of such distribution shall not
lapse or terminate, but each such unpaid distribution shall accumulate and
shall be paid without interest to such holders on the earliest date that (i)
no Senior Secured Notes remain outstanding and (ii) such payment is not
prohibited by any other debt instrument of the Corporation or by applicable
law.
(b) LIQUIDATION PREFERENCE. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, subject to the preferential rights of any series of stock of the
Corporation ranking senior to the Series A Preferred Stock as to liquidation
preferences, any holder of the Series A Preferred Stock shall, for each share
of Series A Preferred Stock, be entitled to receive a distribution of $1,000,
plus any accrued and unpaid dividends (except as provided in paragraph (a) of
this Section 4.03), out of the assets of the Corporation prior to any
distribution of assets with respect to any other shares of capital stock of
the Corporation as a result of such liquidation, dissolution or winding-up of
the Corporation.
(c) VOTING RIGHTS. The holders of the Series A Preferred Stock
shall have no voting rights except to the extent required by the Delaware
General Corporation Law, and the Series A Preferred Stock shall be entitled
to no preemptive rights.
(d) CONVERSION. At any time at the option of the holder, each
share of Series A Preferred Stock shall be convertible into fully paid,
nonassessable shares of Common Stock, at a rate of 31.22958299 shares of Common
Stock per share; PROVIDED, HOWEVER, that in the event the Series A Preferred
Stock shall be called for redemption pursuant to paragraph (e) of this Section
4.03, the right to conversion shall terminate at the close of business on the
date fixed for redemption. In the event of a stock dividend or stock split with
respect to the Corporation's outstanding shares of
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Common Stock, the number of shares into which each share of Series A Preferred
Stock shall be convertible shall be proportionately adjusted.
The holders of the Series A Preferred Stock who desire to convert
shares of Series A Preferred Stock to shares of Common Stock shall give the
Corporation thirty (30) days prior written notice of their intention to convert,
which notice shall specify that all or a part of the shares of Series A
Preferred Stock held by such holder shall be converted to shares of Common Stock
and the date upon which such conversion shall be effective. Such conversion
shall be effected by the surrender of the certificate or certificates
representing the shares of Series A Preferred Stock to be converted at the
principal office of the Corporation, duly endorsed, together with written notice
by the holder of such Series A Preferred Stock stating that such holder elects
to convert the shares, or a stated number of shares, of Series A Preferred Stock
represented by such certificate or certificates, which notice shall also state
the name, addresses and denominations in which the certificate or certificates
for shares of Common Stock shall be issued upon such conversion and shall
include instructions for delivery thereof. Such conversion shall be deemed to
have been effected as of the close of business on the date on which (i) such
certificate or certificates shall have been surrendered, (ii) such notice shall
have been received by the Corporation and (iii) the Federal Communications
Commission (the "FCC") shall have approved such conversion (to the extent such
approval is then required to effect the proposed conversion) (the "Conversion
Date"). With respect to the FCC approval referred to in clause (iii) of the
immediately preceding sentence, following its receipt of a request from the
holder of Series A Preferred Stock subject to a proposed conversion, the
Corporation shall cooperate with the holder in the prompt preparation and filing
with the FCC of any request for approval or waiver that is then required for
such conversion, and the Corporation shall diligently and expeditiously
prosecute, and shall cooperate fully with such holder in the prosecution of,
such request for approval or waiver and all proceedings necessary to secure such
approval or waiver.
The holders of the Series A Preferred Stock who elect to convert
shares of Series A Preferred Stock to Common Stock shall be entitled to receive
all accrued and unpaid dividends (except as provided in paragraph (a) of this
Section 4.03) payable on such shares as of the Conversion Date within thirty
(30) days thereof, and all dividends with respect to such shares shall cease to
accrue after the Conversion Date (except as provided in paragraph (a) of this
Section 4.03).
For so long as any shares of Series A Preferred Stock shall remain
outstanding, the Company shall provide the holders of Series A Preferred Stock
with not less than forty-five (45) days
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prior written notice of the fixing the fixing of any record date for the making
of any distribution to all holders of Common Stock.
(e) OPTIONAL REDEMPTION. The Corporation shall have the right and
option, in whole or in part, out of funds legally available therefor, to call,
redeem and acquire any or all of the shares of Series A Preferred Stock at a per
share redemption price equal to $1,000, plus accrued and unpaid dividends, if
any, to and including the redemption date, whether or not declared, at any time
(except as provided in paragraph (a) of the Section 4.03) to the extent such
shares have not been previously converted to Common Stock pursuant to paragraph
(d) of this Section 4.03.
If this Corporation elects to redeem shares of Series A Preferred
Stock pursuant to this paragraph (e), notice of such redemption shall be given
to each holder of record of the shares to be redeemed. Such notice shall be
provided by first class mail, postage prepaid, at such holder's address as the
same appears on the stock records of the Corporation not less than thirty (30)
nor more than sixty (60) days prior to the date of redemption. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of Series A
Preferred Stock to be redeemed and, if fewer than all such shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; and (iv) that dividends on the shares to be
redeemed shall cease to accrue on such redemption date. Notice having been
mailed as aforesaid, from and after the redemption date, unless the Corporation
shall be in default in providing money for the payment of the redemption price
(including any accrued and unpaid dividends to (and including) the date fixed
for redemption), (i) dividends on the shares of Series A Preferred Stock so
called for redemption shall cease to accrue, (ii) said shares shall be deemed no
longer outstanding and (iii) all rights of holders thereof as stockholders of
the Corporation (except the right to receive from the Corporation the moneys
payable upon the redemption without interest thereon) shall cease.
Upon surrender in accordance with said notice of the certificates
for any such shares so redeemed (properly endorsed or assigned for transfer,
if the Board of Directors of the Corporation shall so require and the notice
shall so state), such shares shall be redeemed by the Corporation at the
applicable redemption price aforesaid. If fewer than all the outstanding
shares of Series A Preferred Stock are to be redeemed, shares to be redeemed
shall be selected by the Corporation from outstanding shares of Series A
Preferred Stock not previously called for redemption pro rata (as near as may
be) or by any other method determined by the Corporation in its sole
discretion to be equitable. If fewer than all the shares represented by any
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
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ARTICLE 5
DIRECTORS; BY-LAWS
SECTION 5.01 ELECTION OF DIRECTORS. Election of directors need not
be by written ballot unless the by-laws of the Corporation so provide.
SECTION 5.02 AMENDMENT OF BY-LAWS. In addition, and not by way of
limitation of, the Delaware General Corporation Law, the Board of Directors is
expressly authorized to adopt, amend or repeal the by-laws of the Corporation
except for any amendment or repeal of any by-law which is not authorized to be
made without the approval of the stockholders of the Corporation pursuant to the
by-laws or resolution of the stockholders, in which case such amendment or
repeal shall be approved by the stockholders of the Corporation.
ARTICLE 6
LIABILITY OF DIRECTORS
No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the Delaware General Corporation Law or (d) for any transaction
from which the director derived an improper personal benefit. Any repeal or
modification of this Article 6 shall not adversely affect any right or
protection of a director existing prior to such repeal or modification.
ARTICLE 7
NON-VOTING SECURITIES
SECTION 7.01 Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the Corporation shall not
issue nonvoting equity securities to the extent prohibited by Section 1123 of
the United States Bankruptcy Code (the "Bankruptcy Code") as in effect on the
Effective Date of the Plan of Reorganization; provided, however, that this
Article 7 (a) will have no further force and effect beyond that required under
Section 1123 of the Bankruptcy Code, (b) will have such force and effect, if
any, only for so long as such section of the Bankruptcy Code is in effect and
applicable to the Corporation and (c) in all events may be amended or repealed
in accordance with applicable law as from time to time in effect.
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SECTION 7.02 CERTAIN DEFINITIONS. For purposes of this Amended
and Restated Certificate of Incorporation:
"Effective Date" means May 3, 1995.
"Plan of Reorganization" means the Joint Plan of Reorganization of
Busse Broadcasting Corporation and WWMT, Inc. dated March 10, 1995, as confirmed
by the United States Bankruptcy Court for the District of Delaware, as it may by
amended or modified from time to time.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, said Busse Broadcasting Corporation has caused this
Amended and Restated Certificate of Incorporation to be signed by its President
and attested by its Assistant Secretary this 12th day of January, 1996.
BUSSE BROADCASTING CORPORATION
By: /s/ Lawrence A. Busse
--------------------------
Lawrence A. Busse
Chief Executive Officer
and President
ATTEST:
By: /s/ James C. Ryan
-------------------------
James C. Ryan
Assistant Secretary
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