EXHIBIT 4.3(a)
EXHIBIT 4.3(a)
CERTIFICATE OF INCORPORATION
of
ARSENAL HOLDINGS II, INC.
ARTICLE I
Name
The name of the Corporation is Arsenal Holdings II, Inc.
ARTICLE II
Registered Office and Registered Agent
The registered office of the Corporation in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name and address of the Corporation's
registered agent is The Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware 19801.
ARTICLE III
Corporate Purposes
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
1
ARTICLE IV
Capital Stock
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is one hundred (100) all of which
shall be Common Stock of the par value of ten cents ($0.10) each (hereinafter
called "Common Stock"). The Common Stock shall have voting rights for the
election of directors and for all other purposes, each holder of Common Stock
being entitled to one vote for each share thereof held by holder, except as
otherwise required by law.
ARTICLE V
Powers of Board of Directors
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized:
(a) To make, alter, amend or repeal the By-Laws, except as otherwise
expressly provided in any By-Law made by the holders of the capital stock
of the Corporation entitled to vote thereon. Any By-Law may be altered,
amended or repealed by the holders of the capital stock of the Corporation
entitled to vote thereon at any annual meeting or at any special meeting
called for that purpose.
(b) To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
(c) To determine the use and disposition of any surplus and net
profits of the Corporation, including the determination of the amount of
working capital required, to set apart out of any of the funds of the
Corporation, whether or not available for dividends, a reserve or reserves
for any proper purpose and to abolish any such reserve in the manner in
which it was created.
(d) To designate, by resolution passed by a majority of the whole
Board of Directors, one or more committees, each committee to consist of
one or more directors of the Corporation, which, to the extent provided in
the resolution designating the committee or in the By-Laws of the
Corporation, shall, subject to the limitations prescribed by law, have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize
the seal of the Corporation to be affixed to all papers which may require
it. Such committee or committees shall have such name or names as may be
provided in the By-Laws of the Corporation or as may be determined from
time to time by resolution adopted by the Board of Directors.
2
(e) To adopt such pension, retirement, deferred compensation or other
employee benefit plans or provisions as may, from time to time, be approved
by it, providing for pensions, retirement income, deferred compensation or
other benefits for officers or employees of the Corporation and of any
corporation which is a subsidiary of the Corporation, or any of them, in
consideration for or in recognition of the services rendered by such
officers or employees or as an inducement to future efforts. No such plan
or provision, which is not at the time of adoption unreasonable or unfair,
shall be invalidated or in any way affected because any director shall be a
beneficiary thereunder or shall vote for any plan or provision under which
he may benefit.
(f) To exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and authorities
and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the laws of the
State of Delaware and of this Certificate of Incorporation and of the
By-Laws of the Corporation.
ARTICLE VI
Indemnification of Directors, Officers and Others
(a) Any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent (including
trustee) of another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified by the Corporation (funds paid or required to
be paid to any person as a result of the provisions of this Article shall be
returned to the Corporation or reduced, as the case may be, to the extent that
such person receives funds pursuant to an indemnification from any such other
corporation or organization) against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. Any
such person who could be indemnified pursuant to the preceding sentence except
for the fact that the subject action or suit is or was by or in the right of the
Corporation shall be indemnified by the Corporation against expenses (including
3
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought, shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
(b) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraph (a) of this Section 1, or in
defense of any claim, issue or matter therein, including the dismissal of an
action without prejudice, he shall be indemnified by the Corporation against
expenses (including attorneys' fee) actually and reasonably incurred by him in
connection therewith without the necessity of any action being taken by the
Corporation other than the determination, in good faith, that such defense has
been successful. In all other cases wherein indemnification is provided by this
Article, unless ordered by a court, indemnification shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct specified in
this Article. Such determination shall be made (1) by the Board of Directors by
a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the holders of a majority of the
shares of capital stock of the Corporation entitled to vote thereon.
(c) The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person seeking indemnification did
not act in good faith and in a manner which reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Entry of a judgment by consent as part of a settlement shall not
be deemed a final adjudication of liability for negligence or misconduct in the
performance of duty, nor of any other issue or matter.
(d) Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors in
the specific case upon receipt of an undertaking by the director, officer,
employee
4
or agent involved to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the Corporation. Such expenses incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
(e) The indemnification and advancement of expenses hereby provided not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or other both as to action in an
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
(f) By action of the Board of Directors, notwithstanding any interest of
the directors in the action, the Corporation, at its expense, may purchase and
maintain insurance, in such amounts as the Board of Directors deems appropriate,
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent (including trustee) or another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation shall have the power to
indemnify him against such liability under the provisions of this Article
or under the provisions of the General Corporation Law of the State of Delaware.
(g) All rights to indemnification and advancement of expenses under this
Article shall be deemed to be provided by contract between the Corporation and
the director, officer, employee or agent who serves in such capacity at any time
while this Certificate of Incorporation and other relevant provisions of the
General Corporation Law of the State of Delaware and other applicable law, if
any, are in effect.
(h) Any repeal or modification of the foregoing paragraphs by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director, officer, employee or agent of the Corporation existing
at the time of such repeal or modification.
(i) If the General Corporation Law of the State of Delaware is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, officers, employees or agents, then such person, in
addition to the circumstances in which he is not now personally liable, shall be
free of liability to the fullest extent permitted by the General Corporation Law
of the State of Delaware, as so amended.
(j) For purposes of this Article, reference to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
5
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation", as referred to in this
Article.
(k) If this Article or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each person as provided above as to expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suitor proceeding, whether civil, criminal, administrative or
investigative, including a grand jury proceeding and an action by the
Corporation, to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated or by any other applicable law.
ARTICLE VII
Director Liability to the Corporation
(a) A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breaches 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 General Corporation Law of the
State of Delaware or (iv)for any transaction from which the director derived an
improper personal benefit.
(b) Any repeal or modification of the foregoing paragraph (a) by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director or the Corporation existing at the time of such appeal
or modification.
(c) If the General Corporation Law of the State of Delaware is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then a director of the Corporation, in addition to the
circumstances in which he is not now personally liable shall be free of
liability to the fullest extent permitted by the General Corporation Law of the
State of Delaware, as so amended.
6
ARTICLE VIII
Reservation of Right to Amend Certificate of Incorporation
The Corporation reserves the right to amend, alter, change or repeal any
provisions contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all the provisions of this Certificate of
Incorporation and all rights and powers conferred in this Certificate of
Incorporation on stockholders, directors and officers are subject to this
reserved power.
ARTICLE IX
Reorganization
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of
Section 291 of the Delaware General Corporation Law or on the application of
trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of the Delaware General
Corporation Law order a meeting of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of the Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or the stockholders or class of stockholders of the Corporation,
as the case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
ARTICLE X
The name and mailing address of the incorporator is as follows:
7
Name Mailing Address
---- ---------------
Kenneth J. Ryan Shearman & Sterling
53 Wall Street
New York, New York 10005
The undersigned, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby declaring and certifying
that the facts herein stated are true; and accordin has hereunto set his hand
this __ day of May, 1987.
/s/ Kenneth J. Ryan
------------------------------
Kenneth J. Ryan
8
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Be It Remembered, that on this 30th day of May, 1987, personally appeared
before me, Lisa M. Nasoff, a Notary Public in and for the county and state
aforesaid, Kenneth J. Ryan, who executed the foregoing Certificate of
Incorporation, known to me personally to be such, and he did acknowledge said
Certificate to be his act and deed, and that the facts therein stated are true.
Given under my name and seal of office the day and year aforesaid.
/s/ Lisa M. Nasoff
-------------------------------
Lisa M. Nasoff
9
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
PARAMOUNT COMMUNICATIONS INC.
INTO
VIACOM INTERNATIONAL INC.
VIACOM INTERNATIONAL INC., a corporation organized and existing under the
laws of the State of Delaware (hereinafter this "Corporation"), DOES HEREBY
CERTIFY:
FIRST: That this Corporation owns all of the outstanding shares of
common stock (the only outstanding class of stock) of Paramount
Communications Inc., a corporation incorporated on the 18th day of April,
1967, pursuant to the General Corporation Law of the State of Delaware.
SECOND: That this Corporation, by resolutions of its Board of
Directors, duly adopted on the 14th day of December, 1994, determined to
effect a merger of said Paramount Communications Inc. into itself (the
"Merger"), and this Corporation shall be the surviving corporation. A true
copy of said resolutions is annexed hereto as Exhibit A. Said resolutions
have not been modified or rescinded and are in full force and effect on the
date hereof.
THIRD: That upon the effective date of the Merger the name of the
surviving corporation shall be Viacom International Inc.
FOURTH: The merger shall become effective upon the filing of this
certificate with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, VIACOM INTERNATIONAL INC. has caused this certificate
to be signed by Philippe P. Dauman, its Executive Vice President, General
Counsel, Chief Administrative Officer and Secretary, this 3rd day of January,
1995.
VIACOM INTERNATIONAL INC.
By: /s/ Philippe P. Dauman
-------------------------------
Philippe P. Dauman
Executive Vice President, General
Counsel Administrative Officer and
Secretary
10
EXHIBIT A
VIACOM INTERNATIONAL INC.
RESOLUTIONS OF THE BOARD OF DIRECTORS
ADOPTED DECEMBER 14, 1994
RESOLVED, that pursuant to Section 253 of the General Corporation Law of
the State of Delaware, Paramount Communications Inc. shall be merged with and
into the Corporation, on or after January 3, 1995, in accordance with
Certificate of Merger, substantially in the form attached here as Exhibit I,
which Certificate of Merger is hereby approved and adopted, and that the
officers of the Corporation be, and each of them acting alone hereby is,
authorized and directed, in the name and on behalf of the Corporation, to
execute and file the Certificate of Merger with the office of the Secretary of
State of the State of Delaware; and
FURTHER RESOLVED, that the officers of the Corporation be, and each of them
alone hereby is, authorized and directed, in the name and on behalf of the
Corporation, to execute and deliver any and all agreements, documents or
certificates and to do or cause to be done all such further acts and things,
including, without limitation, filings with the Federal Communications
Commission, as such officer or officers deem necessary, appropriate or desirable
in order to carry out the purposes and intents of the foregoing resolutions; and
that the authority of such officer or officers to act under these resolutions
shall be conclusively evidenced by their so acting.
11
CERTIFICATE OF OWNERSHIP AND MERGER
OF
TELECASTERS, INC.
(an Ohio corporation)
INTO
VIACOM INTERNATIONAL INC.
(a Delaware corporation)
It is hereby certified that:
1. Viacom International Inc. hereinafter sometimes referred to as the
"Corporation" is a business corporation of the State of Delaware.
2. The Corporation is the owner of all of the outstanding shares of stock
of Telecasters, Inc., which is a business corporation of the State of Ohio.
3. The laws of the jurisdiction of organization of Telecasters, Inc. permit
the merger of a business corporation of that jurisdiction with a business
corporation of another jurisdiction.
4. The Corporation hereby elects to merge Telecasters, Inc. into the
Corporation.
5. The following is a copy of the resolutions adopted on October 24, 1991
by the Board of Directors of the Corporation to merge the said Telecasters, Inc.
into the Corporation:
RESOLVED that Telecasters, Inc. be merged into this Corporation, and
that all of the estate, property, rights, privileges, powers, and
franchises of Telecasters, Inc. be vested in and held and enjoyed by this
Corporation as fully and entirely and without change or diminution the same
were before held and enjoyed by Telecasters, Inc. in its name.
RESOLVED that this Corporation assume all of the obligations of
Telecasters, Inc.
RESOLVED that this Corporation shall cause to be executed and filed
and/or recorded the documents prescribed by the laws of the State of
Delaware, by the laws of the State of Ohio, and by the laws of any other
12
appropriate jurisdiction and will cause to be performed all necessary acts
within the jurisdiction of organization of Telecasters, Inc. and of this
Corporation and in any other appropriate jurisdiction.
Executed on October 31, 1991.
By /s/ Mark M. Weinstein
-------------------------------
Mark W. Weinstein
Senior Vice President
Attest:
/s/ Teresa Marando
------------------------
Teresa Marando
Assistant Secretary
13
CERTIFICATE OF OWNERSHIP AND MERGER
OF
VIACOM INTERNATIONAL INC.
(an Ohio corporation)
INTO
ARSENAL HOLDINGS II, INC.
(a Delaware corporation)
It is hereby certified that:
1. ARSENAL HOLDINGS II, INC. (hereinafter sometimes referred to as the
"Corporation") is a business corporation of the State of Delaware.
2. The Corporation is the owner of all of the outstanding shares of each
class of Viacom International Inc., which is a business corporation of the State
of Ohio.
3. The Corporation determined to merge Viacom International Inc. into the
Corporation by the following resolution adopted by unanimous written consent of
the Board of Directors of the Corporation dated April 24, 1990:
RESOLVED, that the VII Merger (i.e., the merger of Viacom
International Inc. with and into the Corporation), following the completion
of the redemptions and exchanges, to be accomplished pursuant to the
resolution adopted herewith, be, and the same hereby is, in all respects
authorized and approved and the proper officers of the Corporation be, and
each of them hereby is, authorized and empowered in the name of and on
behalf of the Corporation, to cause to be executed and filed the documents
prescribed by the laws of the States of Delaware and Ohio, which documents
shall include the amendment to Article FIRST of the Certificate of
Incorporation to read as follows:
14
"FIRST: The name of the Corporation is VIACOM INTERNATIONAL INC."
Executed on April 24, 1990
Arsenal Holding II, Inc.
By: /s/ Sumner M. Redstone
------------------------------
Sumner M. Redstone
President
Attest:
/s/ M. Teresa Marando
-----------------------
M. Teresa Marando
Assistant Secretary