RESTATED CERTIFICATE OF INCORPORATION
OF
THE McCLATCHY COMPANY
(Originally incorporated on
November 18, 1997
under the name MNI Newco, Inc.)
ARTICLE I
The name of the corporation is THE McCLATCHY COMPANY.
ARTICLE II
The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle, 19801. The name
of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
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 Delaware General Corporation Law.
ARTICLE IV
(a) Authorized Capitalization. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is one
hundred sixty million (160,000,000) shares, consisting of one hundred million
(100,000,000) shares of Class A Common Stock, with a par value of one cent
($.01) per share, and sixty million (60,000,000) shares of Class B Common Stock,
with a par value of one cent ($.01) per share. The number of authorized shares
of Class A Common Stock or Class B Common Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the voting power of all of the then
outstanding shares of Common Stock voting together as a single class without the
separate vote of the holders of any other class of stock.
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(b) Class A Common Stock. The shares of Class A Common Stock and shares
of Class B Common Stock shall be identical in all respects and shall have equal
rights and privileges except as set forth in this paragraph (b) and in paragraph
(c) of this Article IV. Upon dissolution of the Corporation, holders of Class A
Common Stock and holders of Class B Common Stock are entitled to share ratably
in the assets thereof that may be available for distribution after satisfaction
of creditors.
(i) Dividends.
(A) Such dividends or distributions as may be determined by the Board
of Directors of the Corporation from time to time may be declared and paid or
made upon the Class A Common Stock out of any source at the time lawfully
available for the payment of dividends, provided that (subject to subparagraph
(B) and (C) below of this paragraph (b)(i)) identical dividends or distributions
are declared and paid concurrently upon the Class B Common Stock. If dividends
or distributions are declared and paid upon the Class B Common Stock (subject to
subparagraphs (B) and (C) below of this paragraph (b)(i)) an identical dividend
shall be declared and paid concurrently on the Class A Common Stock.
(B) No dividend may be declared and paid in Class A Common Stock unless
the dividend is payable only to holders of Class A Common Stock and a dividend
payable to Class B Common Stock is declared and paid concurrently in respect of
outstanding shares of Class B Common Stock in the same number of shares of Class
B Common Stock per outstanding share.
(C) If a dividend is declared and paid in Class B Common Stock in
respect of outstanding shares of Class B Common Stock, then a dividend shall be
declared and paid concurrently in shares of Class A Common Stock in respect of
outstanding shares of Class A Common Stock so that each holder of outstanding
shares of Class A Common Stock receives (on a per outstanding share basis) a
total number of dividend shares of Class A Common Stock equal to the number of
dividend shares of Class B Common Stock received by the holders of the
outstanding shares of Class B Common Stock.
(ii) Stock Combinations and Subdivisions. The Class A Common Stock
shall not be combined or subdivided unless at the same time there is a
proportionate combination or subdivision of the Class B Common Stock. If the
Class B Common Stock is combined or subdivided, a proportionate combination or
subdivision of the Class A Common Stock shall be made at the same time.
(iii) Voting. The holders of Class A Common Stock shall have the voting
rights set forth below:
(A) With respect to the election of Directors, the holders of
Class A Common Stock voting as a separate class shall be entitled to elect that
number of Directors which constitutes twenty-five percent (25%) of the total
membership of the Board of Directors, and if such twenty-five percent (25%) is
not a whole number, then the holders of Class A Common
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Stock will be entitled to elect the nearest higher whole number of directors
which constitutes twenty-five percent (25%) of such membership. Such election
shall be from a slate of Director nominees separate from a slate of Director
nominees from which holders of Class B Common Stock shall elect Directors. There
shall be no cumulative voting for either holders of Class A Common Stock or
holders of Class B Common Stock.
(B) The holders of Class A Common Stock will be entitled to
vote as a separate class on the removal, with or without cause, of any Director
elected by the holders of Class A Common Stock, provided that, to the extent
permitted by applicable law, any Director may be removed for cause by the Board
of Directors.
(C) Except as may otherwise be required by law, the holders of
Class A Common Stock shall, in all matters not referred to in subparagraphs (A)
or (B) of this paragraph (b)(iii) or in subparagraphs (A) or (B) of paragraph
(c)(iii) of this Article IV, vote together with the holders of Class B Common
Stock as a single class, provided that the holders of Class A Common Stock will
have one-tenth (1/10) of a vote for each share and the holders of Class B Common
Stock shall have one (1) vote for each share.
(D) Notwithstanding anything herein to the contrary, the
holders of Class A Common Stock shall have exclusive voting power on all matters
at any time when no shares of Class B Common Stock are issued and outstanding.
(c) Class B Common Stock.
(i) Dividends and Distributions. Subject to the provisions of paragraph
(b)(i) of this Article IV, such dividends and distributions may be declared and
paid or made upon the Class B Common Stock as may be permitted by applicable
law.
(ii) Stock Combinations and Subdivisions. Subject to the provisions of
paragraph (b)(ii) of this Article IV, the Class B Common Stock may be combined
or subdivided in such manner as may be permitted by applicable law.
(iii) Voting. Subject to the provisions of paragraph (b)(iii) of this
Article IV, the Class B Common Stock shall have one (1) vote per share on all
matters that may be submitted to a vote of the stockholders.
Without limiting the generality of the foregoing:
(A) With respect to the election of Directors, the holders of
Class B Common Stock shall be entitled, voting as a separate class, to elect the
remaining Directors not subject to the priority rights of the holders of the
Class A Common Stock set forth in paragraph (b)(iii)(A) of this Article IV; and
(B) The holders of the Class B Common Stock will be entitled
to vote as a separate class on the removal, with or without cause, of any
Director who was elected either by the holders of the Class B Common Stock or by
Directors who were elected by the holders of
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the Class B Common Stock, provided that any Director may be removed for cause by
the Board of Directors.
(iv) Conversion.
(A) Each holder of record of Class B Common Stock may, in such holder's
sole discretion and at such holder's option, convert any whole number or all of
such holder's shares of Class B Common Stock into fully paid and nonassessable
shares of Class A Common Stock at the rate (subject to adjustment as hereinafter
provided) of one (1) share of Class A Common Stock for each share of Class B
Common Stock surrendered for conversion. Any such conversion may be effected by
any holder of Class B Common Stock surrendering such holder's certificate or
certificates for the shares of Class B Common Stock to be converted, duly
endorsed, at the office of the Corporation or any transfer agent for the Class B
Common Stock, together with a written notice to the Corporation at such office
that such holder elects to convert all or a specified number of shares of Class
B Common Stock and stating the name or names in which such holder desires the
certificate or certificates for such shares of Class A Common Stock to be
issued. Promptly thereafter, the Corporation shall issue and deliver to such
holder or such holder's nominee or nominees, a certificate or certificates for
the number of shares of Class A Common Stock to which such holder shall be
entitled as aforesaid. Such conversion shall be deemed to have been made at the
close of business on the date of such surrender and the person or persons
entitled to receive the shares of Class A Common Stock issuable on such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Class A Common Stock on that date.
(B) The number of shares of Class A Common Stock into which the shares
of Class B Common Stock may be converted shall be subject to adjustment from
time to time in the event of any capital reorganization, reclassification of
stock of the Corporation, consolidation or merger of the Corporation with or
into another corporation, or sale or conveyance of all or substantially all of
the assets of the Corporation to another corporation or other entity or person.
Each share of Class B Common Stock shall thereafter be convertible into such
kind and amount of securities or other assets, or both, as are issuable or
distributable in respect of the number of shares of Class A Common Stock into
which each share of Class B Common Stock is convertible immediately prior to
such reorganization, reclassification, consolidation, merger, sale or
conveyance. In any such case, appropriate adjustments shall be made by the Board
of Directors of the Corporation in the application of the provisions herein set
forth with respect to the rights and interest thereafter of the holders of Class
B Common Stock to the end that the provisions set forth herein (including
provisions for adjustment of the conversion rate) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities or
other assets thereafter deliverable on conversion of the Class B Common Stock.
(C) The Corporation shall, at all times, reserve and keep available out
of the authorized and unissued shares of Class A Common Stock, solely for the
purpose of effecting the conversion of the outstanding Class B Common Stock,
such number of shares of Class A Common Stock as shall from time to time be
sufficient to effect conversion of all outstanding Class B Common Stock and if,
at any time, the number of authorized and unissued shares of
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Class A Common Stock shall not be sufficient to effect conversion of the then
outstanding Class B Common Stock, the Corporation shall take such corporate
action as may be necessary to increase the number of authorized and unissued
shares of Class A Common Stock to such number as shall be sufficient for such
purposes.
ARTICLE V
In the consideration and approval of all policies and actions of the
Corporation, the Board of Directors shall have the right to consider all
relevant factors which are in the best interests of the Corporation and its
stockholders, including and in addition to the financial interests of
stockholders, community standards and values, the welfare of employees, and the
quality and independence of the Corporation and its publishing enterprise.
ARTICLE VI
The Board of Directors is expressly authorized to make, alter or repeal
the by-laws of the Corporation.
ARTICLE VII
(a) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
(b) Each director or officer of the Corporation who was or is made a
party or is threatened to be made a party to or is in any way involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including without limitation any
action, suit or proceeding brought by or in the right of the Corporation to
procure a judgment in its favor) (hereinafter a "proceeding"), including any
appeal therefrom, 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, officer, employee,
agent or fiduciary of the Corporation or a predecessor corporation or of a
subsidiary of the Corporation or any such predecessor corporation, or is or was
serving at the request of the Corporation or any such predecessor corporation,
as a director, officer, manager, partner, trustee, employee, fiduciary or agent
of another entity or enterprise, or by reason of anything done or not done in
such capacity, shall be indemnified and held harmless by the Corporation, and
the Corporation shall advance all expenses incurred by any such person in
connection with any such proceeding prior to its final determination, to the
fullest extent authorized by the Delaware General Corporation Law. In any
proceeding against the Corporation to enforce these rights, such person shall be
presumed
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to be entitled to indemnification, and the Corporation shall have the burden of
proof to overcome that presumption. The rights to indemnification and
advancement of expenses conferred by this Article shall be presumed to have been
relied upon by directors and officers of the Corporation in serving or
continuing to serve the Corporation and shall be enforceable as contract rights.
Said rights shall not be exclusive of any other rights to which those seeking
indemnification may otherwise be entitled. The Corporation may, upon written
demand presented by a director or officer of the Corporation or of a subsidiary
of the Corporation, or by a person serving at the request of the Corporation as
a director or officer of another entity or enterprise, enter into contracts to
provide such persons with specific rights to indemnification, which contracts
may confer rights and protections to the maximum extent permitted by the
Delaware General Corporation Law. The Corporation may create trust funds, grant
security interests, obtain letters of credit, or use other means to ensure
payment of such amounts as may be necessary to perform the obligations provided
for in this Article or in any such contract.
(c) Any repeal or modification of the foregoing provisions of this
Article by the stockholders of the Corporation shall not adversely affect any
right or protection of a director or officer of the Corporation existing at the
time of such repeal or modification, including without limitation any
contractual rights arising under or authorized by this Article.
(d) In addition to any vote of the holders of any class or series of
the stock of this Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least 66-2/3% of the
voting power of all of the then outstanding shares of the Common Stock of the
Corporation voting together as a single class, shall be required to amend or
repeal this Article.
ARTICLE VIII
The Corporation shall be entitled to treat the person in whose name any
share is registered as the owner thereof, for all purposes, and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
on the part of any other person, whether or not the Corporation shall have
notice thereof, save as expressly provided by the laws of the United States of
America or of the State of Delaware.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates and further amends the provisions of the Certificate of
Incorporation of this Corporation, and which has been duly adopted in accordance
with Sections 242 and 245 of the Delaware General Corporation Law, has been
executed by The McClatchy Company by its duly authorized officer this 18th day
of March, 1998.
THE McCLATCHY COMPANY
By /s/ Gary Pruitt
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Gary B. Pruitt
President