Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF CUMULUS MEDIA INC.
(As Amended through October 2000)
ARTICLE I
NAME
The name of the Corporation is Cumulus Media Inc. Cumulus Media Inc.
was incorporated on May 22, 1997 under the name Cumulus Holdings, Inc. On March
18, 1998, Articles of Amendment were filed changing the corporate name to
Cumulus Media Inc.
ARTICLE II
REGISTERED AGENT
AND REGISTERED OFFICE
The registered agent of the Corporation is William Bungeroth and the
registered office of the Corporation is located at 875 North Michigan Ave.,
Suite 3650, Chicago, IL 60611, in the county of Cook.
ARTICLE III
PURPOSE
The purpose or purposes for which the Corporation is organized is the
transaction of any or all lawful business for which corporations may be
incorporated under the Illinois Business Corporation Act and of any successor
provisions.
ARTICLE IV
AUTHORIZED SHARES
The aggregate number of shares which the Corporation is authorized to
issue is 150,262,000, divided into four classes consisting of: (i) 100,000,000
shares designated as Class A Common Stock, $.01 par value per share (hereinafter
referred to as the "Class A Common Stock"); (ii) 20,000,000 shares designated as
Class B Common Stock, $.01 par value per share (hereinafter referred to as the
"Class B Common Stock"); (iii) 30,000,000 shares designated as Class C Common
Stock, $ .01 par value per share (hereinafter referred to as the "Class C Common
Stock"), and (iv) 262,000 shares of Preferred Stock, $.01 par value per share
(hereinafter referred to as the "Preferred Stock"). The Class A Common Stock,
Class B Common Stock, and Class C Common Stock shall be referred to collectively
herein as the "Common Stock".
ARTICLE V
TERMS OF COMMON STOCK
Except with regard to voting and conversion rights, shares of Class A
Common Stock, Class B Common Stock, and Class C Common Stock are identical in
all respects. The preferences, qualifications, limitations, restrictions, and
the special or relative rights in respect of the Common Stock and the various
classes of Common Stock shall be as follows:
SECTION 1. VOTING RIGHTS.
(a) General Rights. The holders of shares of Class A Common Stock shall
be entitled to one (1) vote for each share of Class A Common Stock held on the
record date therefor on any matter submitted to a vote of the shareholders of
the Corporation. Except as may be required by law or by Section 2 of Article
VII, the holders of shares of Class B Common Stock shall not be entitled to vote
on any matter submitted to a vote of the shareholders of the Corporation;
provided, however, that this sentence is not intended to detract from or limit
the consent rights of certain holders of Class B Common Stock as set forth in
Section 1(c) of this Article V. The holders of shares of Class C Common Stock
shall be entitled to ten (10) votes for each share of Class C Common Stock held
on the record date therefor on any matter submitted to a vote of the
shareholders of the Corporation; provided, however, that during the period of
time commencing with the date of conversion of any Class B Common Stock to Class
C Common Stock held by either NationsBanc or SWIB and ending with the date on
which NationsBanc and SWIB (together with their respective Affiliates) each
ceases to beneficially own at least five percent (5%) of the aggregate number of
shares of all classes of Common Stock held by such entity immediately prior to
the consummation of the Offering, the holders of shares of Class C Common Stock
shall be entitled to one (1) vote for each share of Class C Common Stock held on
the record date therefor on any matter submitted to a vote of the shareholders
of the Corporation.
(b) Voting in General. The holders of Class A Common Stock and the
holders of Class C Common Stock shall vote together, as a single class, on all
matters submitted for a vote to the shareholders of the Corporation.
(c) Consent to Fundamental Action. The express written consent of
Consent Right Holders holding a majority of that number of shares of Class B
Common Stock held in the aggregate by all Consent Right Holders shall be
required for the taking of any Fundamental Action. Such consent is in addition
to the approval required by Section 1(b) of this Article V. The term "Consent
Right Holder," at any given time, means a Person who owns at least one (1) share
of Class B Common Stock at such time, and who held at least one (1) share of
Class B Common Stock immediately prior to the consummation of the Offering, and
who (together with such Person's Affiliates) beneficially owns at such time a
number of shares of the Common Stock of the Corporation equal to or greater than
fifty percent (50%) of the number of shares of Common Stock held by such Person
immediately prior to the consummation of the Offering.
SECTION 2. DIVIDENDS.
After payment of the preferential amounts to which the holders of any
shares ranking prior to the Common Stock shall be entitled, the holders of
Common Stock shall be entitled to receive when, as and if declared by the Board
of Directors of the Corporation, from funds lawfully available therefor, such
dividends as may be declared by the Board of Directors of the Corporation from
time to time. When and as dividends are declared on Common Stock, the holders of
shares of each class of Common Stock will be entitled to share ratably in such
dividend according to the number of shares of Common Stock held by them;
provided, however, that in the case of dividends or other distributions payable
on Common Stock in shares of Common Stock, including distributions pursuant to
share splits or dividends, only Class A Common Stock will be distributed with
respect to Class A Common Stock, only Class B Common Stock will be distributed
with respect to Class B Common Stock and only Class C Common Stock will be
distributed with respect to Class C Common Stock. In the event any class of
Common Stock is split, divided or combined, each other class of Common Stock
simultaneously shall be proportionately split, divided or combined.
SECTION 3. LIQUIDATION, DISSOLUTION OR WINDING-UP.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntarily or involuntarily, after payment or provision
for payment of the debts and other liabilities of the Corporation and the
preferential amounts to which the holders of any shares ranking prior to the
Common Stock in the distribution of assets shall be entitled upon liquidation,
the holders of shares of the Class A Common Stock, the Class B Common Stock and
the Class C Common Stock shall be entitled to share pro rata in the remaining
assets of the Corporation in proportion to the respective number of shares of
Common Stock held by each holder compared to the aggregate number of shares of
Common Stock outstanding.
SECTION 4. MERGER OR CONSOLIDATION.
In the event of a merger or consolidation of the Corporation, shares of
Class A Common Stock, Class B Common Stock, and Class C Common Stock shall be
treated identically, except with respect to voting and conversion rights as
specifically described in this Article V.
SECTION 5. CONVERTIBILITY AND TRANSFER.
(a) Conversion of Class B Common Stock. Each holder of Class B Common
Stock is entitled to convert at any time or times all or any part of such
holder's shares of Class B Common Stock into an equal number of shares of Class
A Common Stock or an equal number of shares of Class C Common Stock; provided,
however, that the prior consent of any governmental authority required under any
applicable law, rule, regulation or other governmental requirement to make such
conversion lawful shall have first been obtained and provided further, that such
holder is not at the time of such conversion a Disqualified Person.
(b) Conversion of Class C Common Stock. Each holder of Class C Common
Stock is entitled to convert at any time or times all or any part of such
holder's shares of Class C
Common Stock into an equal number of shares of Class A Common Stock; provided,
however, that the prior consent of any governmental authority required under any
applicable law, rule, regulation or other governmental requirement to make such
conversion lawful shall have first been obtained; and provided further, that
such holder is not at the time of such conversion a Disqualified Person. In the
event of the death of any Principal or the Disability of any Principal which
results in termination of such Principal's employment with the Corporation, the
shares of Class C Common Stock held by such deceased or disabled Principal or
any Related Party or Affiliate of such deceased or disabled Principal shall
automatically be converted into one (1) share of Class A Common Stock. The
holder of such converted shares shall have no further rights as a holder of
Class C Common Stock with respect to such converted shares, but shall be deemed
to have become the holder of the number of shares of Class A Common Stock into
which such shares of Class C Common Stock have converted pursuant to this
Section 5(b). Such holder shall exchange the certificates representing such
converted Class C Common Stock for certificates representing Class A Common
Stock.
(c) Transfer of Certain Shares.
(i) A record or beneficial owner of shares of Class B Common
Stock, or of Class C Common Stock that at any time was converted from
Class B Common Stock, may transfer such shares (whether by sale,
assignment, gift, bequest, appointment or otherwise) to any transferee;
provided, however that (i) the prior consent of any governmental
authority required under applicable law, rule, regulation or other
governmental requirement to make such transfer lawful shall have first
been obtained, and (ii) the transferee is not a Disqualified Person.
Concurrently with any such transfer, each such transferred share of
Class B Common Stock or Class C Common Stock shall automatically be
converted into one (1) share of Class A Common Stock. The holder of
such converted shares shall have no further rights as a holder of Class
B Common Stock or Class C Common Stock with respect to such converted
shares but shall be deemed to have become the holder of the number of
shares of Class A Common Stock into which such shares of Class B Common
Stock or Class C Common Stock have converted pursuant to this Section
5(c)(i). Such holder shall exchange the certificates representing such
converted Class B Common Stock or Class C Common Stock for certificates
representing Class A Common Stock.
(ii) A record or beneficial owner of shares of Class C Common
Stock may transfer such shares (whether by sale, assignment, gift,
bequest, appointment or otherwise) to any transferee; provided,
however, that (i) the prior consent of any governmental authority
required under applicable law, rule, regulation or other governmental
requirement to make such transfer lawful shall have first been
obtained, and (ii) the transferee is not a Disqualified Person and
provided further, that if the transferee is not an Affiliate or a
Related Party of a Principal, then, concurrently with any such
transfer, each such transferred share of Class C Common Stock shall
automatically be converted into one (1) share of Class A Common Stock.
The holder of such converted shares shall have no further rights as a
holder of Class C Common Stock with respect to such converted shares
but shall be deemed to have become the holder of the number of shares
of Class A Common Stock into which such shares of Class C Common Stock
have
converted pursuant to this Section 5(c)(ii). Such holder shall exchange
the certificates representing such converted Class C Common Stock for
certificates representing Class A Common Stock.
(d) Condition Precedent to Transfer or Conversion. As a condition
precedent to any transfer or conversion of any shares of Class B Common Stock or
Class C Common Stock, the transferor shall give the Corporation not less than
five (5) business days prior written notice of any intended transfer or
conversion and the intended transferee or the Person who will hold the converted
shares, as applicable, shall promptly provide the Corporation with any
information reasonably requested by the Corporation to enable the Corporation to
determine whether such intended transferee or holder of converted shares is a
Disqualified Person.
(e) Conversion.
(i) Effective Time of Conversion. The conversion of shares of
Class B Common Stock or Class C Common Stock, as the case may be, will be deemed
to have been effected as of the close of business on the date on which occurs
the last to occur of the following events:
(A) The certificate or certificates representing the
shares of Class B Common Stock or Class C Common Stock to be converted
have been surrendered to the principal office of the Corporation with
duly executed conversion instructions and, if applicable, transfer
instructions;
(B) All information requested by the Corporation, for
the purpose of making the determination contemplated by Section 5(d) of
this Article V, has been provided to the Corporation and the
Corporation has determined that the intended transferee is not a
Disqualified Person; and
(C) All consents contemplated by Section 5(c)(i) of
this Article V have been obtained and evidence thereof satisfactory to
the Corporation has been provided to the Corporation.
At such time as such conversion has been effected, the rights of the holder of
such shares will cease and the Person or Persons in whose name or names any
certificate or certificates for shares of Class C Common Stock or Class A Common
Stock are to be issued upon such conversion will be deemed to have become the
holder or holders of record of the shares of the Class C Common Stock or the
Class A Common Stock so issuable by reason of the conversion.
(ii) Deliveries Upon Conversion. As soon as possible after a conversion
has been effected (but in any event within three (3) business days), the
Corporation will deliver to the converting holder:
(A) a certificate or certificates representing the
number of shares of Class A Common Stock or Class C Common Stock
issuable by reason of such conversion
in such name or names and such denominations as the converting holder
has specified; and
(B) a certificate representing any shares of Class B
Common Stock or Class C Common Stock which were represented by the
certificate or certificates delivered to the Corporation in connection
with such conversion but which were not converted.
(iii) No Charges. The issuance of certificates for shares of
Class A Common Stock or Class C Common Stock upon conversion of Class B Common
Stock or Class C Common Stock will be made without charge to the holders of such
Common Stock for any issuance tax in respect of such issuance or other costs
incurred by the Corporation in connection with such conversion and the related
issuance of shares of Class A Common Stock or Class C Common Stock, except for
any transfer taxes that may be payable if certificates are to be issued in a
name other than that in which the surrendered certificate is registered. Upon
conversion of a share of Class B Common Stock or Class C Common Stock, the
Corporation will take all such actions as are necessary in order to ensure that
the Class A Common Stock or Class C Common Stock issued or issuable with respect
to such conversion will be validly issued, fully paid and nonassessable.
(iv) No Adverse Action. The Corporation will not close its
books against the transfer of Class A Common Stock or Class C Common Stock
issued or issuable upon conversion of Class B Common Stock or Class C Common
Stock in any manner which interferes with the timely conversion of Class B
Common Stock or Class C Common Stock.
(v) Sufficient Shares. The Corporation shall at all times have
authorized, reserved and set aside a sufficient number of shares of Class A
Common Stock and Class C Common Stock for the conversion of all shares of Class
B Common Stock then outstanding. The Corporation shall at all times have
authorized, reserved and set aside a sufficient number of shares of Class A
Common Stock for the conversion of all shares of Class C Common Stock then
outstanding.
SECTION 6. DISQUALIFIED PERSON.
In event that a Person is or becomes a Disqualified Person, such Person
shall promptly take any and all actions necessary or required by the FCC to
cause such Person to cease being a Disqualified Person, including, without
limitation, (i) divesting all or a portion of such Person's interest in the
Corporation, (ii) making an application to or requesting a ruling from and/or
cooperating with the Corporation in any application to or request for a ruling
from the FCC seeking a waiver for or an approval of such ownership, (iii)
divesting itself of any ownership interest in any entity which together with
such Person's interest in the Corporation makes such Person a Disqualified
Person, (iv) entering into a voting trust whereby such Person's interest in the
Corporation will not make such Person a Disqualified Person, or (v) subject to
any Board of Directors and/or vote of Class B Common Stock holders required
under Article VII hereof, exchanging such Person's shares of Common Stock for
Class B Common Stock.
SECTION 7. LEGEND.
Each Certificate representing shares of Common Stock shall bear a
legend setting forth the restrictions on transfer and ownership which apply to
the shares represented by such Certificate.
SECTION 8. DEFINITIONS.
For the purposes of these Articles of Incorporation, the following
capitalized terms shall have the meanings set forth below:
"ACT" shall mean the Illinois Business Corporation Act of 1983, as
amended, and any successor thereto.
"AFFILIATE" shall be defined as set forth in Rule 144 promulgated under
the Securities Act.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one transaction or a series of related
transactions, of all or substantially all of the assets of the Corporation and
its subsidiaries taken as a whole to any Person or group of related Persons (a
"Group") (as such terms are used in Section 13(d)(3) of the Exchange Act) other
than a Principal or a Related Party of a Principal, (ii) the consummation of any
transaction (including, without limitation, any purchase, sale, acquisition,
disposition, merger or consolidation) the result of which is that any Person or
Group other than a Principal or Related Party of a Principal becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and 13d-5 under the
Exchange Act) of more than fifty percent (50%) of the aggregate voting power of
all classes of capital stock of the Corporation having the right to elect
directors under ordinary circumstances, or (iii) the first day on which a
majority of the members of the Board of Directors of the Corporation are not
Continuing Directors.
"CLASS A COMMON STOCK" shall be defined as set forth in Article IV.
"CLASS B COMMON STOCK" shall be defined as set forth in Article IV.
"CLASS C COMMON STOCK" shall be defined as set forth in Article IV.
"COMMON STOCK" shall be defined as set forth in Article IV.
"COMMUNICATIONS ACT" shall mean the Telecommunications Act of 1996, as
amended.
"CONSENT RIGHT HOLDER" shall be defined as set forth in Section 1(c) of
this Article V.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Corporation who (i) was a member of such
Board of Directors on the date of consummation of the Offering, or (ii) was
nominated for election or elected to such
Board of Directors with the approval of (x) two-thirds (2/3) of the Continuing
Directors who were members of such Board at the time of such nomination or
election, or (y) two-thirds (2/3) of those Directors who were previously
approved by Continuing Directors.
"CORPORATION" shall mean Cumulus Media Inc., an Illinois corporation.
"DIRECTOR" shall mean a member of the Board of Directors of the
Corporation.
"DISABILITY" shall mean the inability of the Principal to perform his
duties to the Corporation on account of physical or mental illness or incapacity
for a period of four and one-half (4 1/2) consecutive months, or for a period of
one hundred thirty-five (135) calendar days, whether or not consecutive, during
any three hundred sixty-five (365) day period, as a result of a condition that
is treated as a total or permanent disability under the long-term disability
insurance policy of the Corporation that covers the Principal.
A Person shall be deemed to be a "DISQUALIFIED PERSON" if, (and with
respect to any proposed conversion or transfer, after giving effect to such
proposed conversion or transfer), the Board of Directors of the Corporation in
good faith determines such Person is (or would be after giving effect to such
conversion or transfer), or such Person becomes aware that he or she is (or
would be after giving effect to such conversion or transfer), or the FCC
determines by a final order that such Person is (or would be after giving effect
to such conversion or transfer), a Person who, directly or indirectly, as a
result of ownership of Common Stock or other capital stock of the Corporation or
otherwise (i) causes (or would cause) the Corporation or any of its subsidiaries
to violate the multiple, cross-ownership, cross-interest or other rules,
regulations, policies or orders of the FCC, (ii ) would result in
disqualification of the Corporation or any of its subsidiaries as a licensee of
the FCC, or (iii) would cause the Corporation to violate the provisions with
respect to foreign ownership or voting of the Corporation or any of its
subsidiaries as set forth in Section 310(b)(3) or (4) of the Communications Act,
as applicable. Notwithstanding the foregoing, if a Person objects in good faith
to such determination by written notice to the Corporation, within ten (10) days
of notice by the Corporation that the Board of Directors of the Corporation has
determined that such Person is a Disqualified Person, the Corporation and/or
such Person shall, when appropriate, apply for a determination by the FCC with
respect thereto within ten (10) days of receipt by the Corporation of notice of
such objection. If no determination is made by the FCC within ninety (90) days
from the date of such application or if the Corporation and the Person determine
that it is inappropriate to make any application to the FCC, the Corporation and
such Person agree that such determination shall be made by an arbitrator,
mutually agreed upon by the Corporation and such Person. Notwithstanding the
foregoing, until a determination is made by the FCC (and such determination
becomes a final order) or by the arbitrator, such Person will not be deemed a
Disqualified Person.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"FCC" shall mean the Federal Communications Commission.
"FUNDAMENTAL ACTION" shall mean: (i) any proposed amendment to the
Corporation's Articles of Incorporation or By-Laws (other than an amendment
required by Section 1 of Article VII hereof); (ii) any proposed merger,
consolidation or other business combination involving the Corporation, or sale,
transfer or other disposition of all or substantially all of the assets of the
Corporation; (iii) any proposed voluntary liquidation, dissolution or
termination of the Corporation; or (iv) any proposed transaction resulting in a
Change of Control.
"NATIONSBANC" shall mean NationsBanc Capital Corp.
"OFFERING" shall mean the issuance of shares of Class A Common Stock by
the Corporation pursuant to the first public distribution in which shares of
Class A Common Stock of the Corporation are listed and traded on a national
stock exchange or on the NASDAQ National Market System.
"PERSON" shall include any individual, entity, or group within the
meaning of Section 13(d)(2) of the Exchange Act.
"PREFERRED STOCK" shall be defined as set forth in Article IV.
"PRINCIPAL" means each of Richard W. Weening and Lewis W. Dickey, Jr.
"RELATED PARTY" with respect to any Principal means (a) any spouse or
immediate family member of such Principal, or (b) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or Persons beneficially holding an eighty percent (80%) or more controlling
interest of which consist of such Principal and/or other Persons referred to in
the immediately preceding clause (a).
"RESTRICTED ACTIONS" shall be defined as any of the following actions
by the Corporation:
(a) Entering into any transaction with any Affiliate of the Corporation
or amending or otherwise modifying any existing agreement with any Affiliate of
the Corporation, other than a transaction with an Affiliate which is on terms no
less favorable to the Corporation than the Corporation would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Corporation and which is approved, after disclosure of the terms thereof, by a
vote of the majority of the Board of Directors of the Corporation (provided,
that any Director who is an interested party or an Affiliate of an interested
party to such transaction shall not be entitled to participate in such vote and
shall not be counted for the purpose of determining whether a majority of the
Board of Directors of the Corporation has approved such transaction);
(b) Issuing any shares of Class B Common Stock, or any shares of Class
C Common Stock other than in a conversion pursuant to Section 5(a) of Article V
hereof;
(c) Acquiring (by purchase or otherwise) or selling, transferring or
otherwise disposing of assets having, at the time of disposition, a fair market
value in excess of ten percent
(10%) of the Corporation's Shareholders' Equity as of the last day of the
preceding fiscal quarter for which financial statements are available; or
(d) amending, terminating or otherwise modifying any of the foregoing
subparagraphs (a) through (c) or this subparagraph (d) or any provision of this
Article V governing the voting or conversion rights of the Class B Common Stock
or the Class C Common Stock.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHAREHOLDERS' EQUITY," as of any date, shall mean the Corporation's
assets minus its liabilities, as determined in accordance with generally
accepted accounting principles and as reflected on the Corporation's
consolidated balance sheet as of such date.
"SWIB" shall mean the State of Wisconsin Investment Board.
ARTICLE VI
TERMS OF PREFERRED STOCK
The Preferred Stock shall be divided into and issued in one or more
series. Each series shall be so designated by the Board of Directors of the
Corporation as to distinguish the shares in such series from the shares of all
other series. The variations in the relative rights, preferences, voting powers,
designations, dividends, qualifications, limitations, and restrictions as
between different series shall be fixed and determined by resolution of the
Board of Directors of the Corporation, so far as they are not inconsistent with
the provisions of these Articles of Incorporation, and the Board of Directors of
the Corporation is hereby expressly vested with authority to establish the same
by resolution. Each such resolution so adopted by the Board of Directors is
referred to herein as a "Resolution Fixing Terms."
The following terms and provisions shall apply to all Preferred Stock
and each series thereof:
1. Preferred Stock shall be non-voting, except to the extent that the
Resolution Fixing Terms establishing a series of Preferred Stock expressly
grants voting rights to the shares in such series, and then only to the extent
of the voting rights expressly so granted.
2. Where one or more series of Preferred Stock have been granted voting
rights, the shares of Preferred Stock having voting rights upon any given matter
shall be voted as a single class, except to the extent that the Resolution
Fixing Terms establishing a series of Preferred Stock expressly grants such
series the right to vote separately as a series, and then only to the extent of
the separate voting rights so granted.
3. The rate of dividend, if any, or basis for determination of
dividend, if any, for shares in a series; the price at and terms and conditions
on which shares in a series may be
redeemed, if any; the amount payable upon shares in a series in the event of
involuntary or voluntary liquidation; sinking fund provisions for shares in a
series, if any; the terms and conditions on which shares in a series may be
converted, if any; and the voting rights of shares in a series, if any, shall
each be set forth in the Resolution Fixing Terms for such series.
4. There shall be no variations between shares of different series of
Preferred Stock except to the extent that such variations are permissible under
the Act and are expressly set forth in the respective Resolutions Fixing Terms
establishing such series.
5. Dividends payable to holders of shares of any series of Preferred
Stock shall have priority over dividends payable to holders of shares of any
class of Common Stock. As among shares of Preferred Stock issued in different
series, dividends payable upon shares of any series of Preferred Stock shall be
of equal priority with dividends payable upon shares of any other series of
Preferred Stock.
6. Amounts payable to holders of shares of any series of Preferred
Stock in any liquidation (voluntary or involuntary), dissolution or winding up
of the Corporation shall have priority over amounts payable to holders of shares
of any class of Common Stock. As among shares of Preferred Stock issued in
different series, amounts payable to holders of shares of any series of
Preferred Stock in any liquidation (voluntary or involuntary), dissolution or
winding up of the Corporation shall have equal priority with amounts payable to
holders of shares of any other series of Preferred Stock.
ARTICLE VII
CERTAIN RIGHTS AND OBLIGATIONS
APPLICABLE ONLY DURING NATIONSBANC'S OWNERSHIP
SECTION 1. RESTRICTED ACTIONS.
Upon the day of issuance ("Order Date") of a final order of the FCC
that the granting of a right to NationsBanc to designate a Director of the
Corporation pursuant to a shareholders agreement with the holders of Class C
Common Stock will not result in NationsBanc's interest being "attributable"
under applicable FCC rules, and for so long thereafter ("Applicable Period") as
NationsBanc (together with its Affiliates) continues to own not less than fifty
percent (50%) of the number of shares of Common Stock held by NationsBanc
immediately prior to the Offering:
(a) the holders of Class C Common Stock shall have the right, voting as
a class, to elect one (1) Director (the "Class C Director"); and
(b) the Corporation shall not take any Restricted Action without the
unanimous vote of the Board of Directors of the Corporation.
The right of the holders of the Class C Common Stock to elect the Class
C Director may be exercised initially either at a special meeting of the holders
of Class C Common Stock called
as hereafter provided or at any annual meeting of shareholders held for the
purposes of electing directors and thereafter at such annual meeting or by the
written consent of the holders of Class C Common Stock, until the expiration of
the Applicable Period. Effective on the Order Date, the number of Directors
constituting the Board of Directors of the Corporation shall be increased by one
(1) without the necessity of any further action by the shareholders or the Board
of Directors of the Corporation, and the By-Laws shall be deemed amended so to
increase the number of members of the Board of Directors effective on the Order
Date. Upon the termination of the Applicable Period, the term of office of the
Class C Director shall terminate immediately and the number of Directors
constituting the Board of Directors of the Corporation shall be reduced by one
(1) without the necessity of any further action by the shareholders or the Board
of Directors of the Corporation, and the By-Laws shall be deemed amended so to
decrease the number of members of the Board of Directors effective as of the
date of termination of the Applicable Period.
At any time after the Order Date, if such rights to elect a Class C
Director shall not already have been initially exercised, a proper officer of
the Company shall, upon the written request of holders of record of ten percent
(10%) or more of the shares of Class C Common Stock then outstanding, addressed
to the Secretary of the Corporation, call a special meeting of holders of Class
C Common Stock. Such meeting shall be held at the earliest practicable date
based upon the number of days of notice required for annual meetings of
stockholders at the place designated for holding annual meetings of stockholders
of the Corporation or, if none, at a place designated by the Secretary of the
Corporation. If such meeting shall not be called by the officers of the
Corporation within thirty (30) days after the personal service of such written
request upon the Secretary of the Corporation, or within thirty (30) days after
mailing the same within the United States, by registered mail, addressed to the
Secretary of the Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal authorities), then the
holders of record of ten percent (10%) or more of the shares of Class C Common
Stock then outstanding may designate in writing any holder of Class C Common
Stock to call such meeting at the expense of the Corporation, and such meeting
may be called by such person so designated upon the number of days of notice
required for annual meetings of stockholders and shall be held at the place
designated for holding annual meetings of the stockholders of the Corporation
or, if none, at a place designated by such holder. Any holder of Class C Common
Stock that would be entitled to vote at such meeting shall have access to the
stock books of the Corporation for the purpose of causing a meeting of holders
of Class C Common Stock to be called pursuant to the provisions of this Section
1. Notwithstanding the provisions of this section, however, no such special
meeting shall be called if any such request is received less than seventy (70)
days before the date fixed for the next ensuing annual or special meeting of
stockholders. Any action required hereunder to elect a Class C Director may be
taken without a meeting if a consent in writing, setting forth the name of the
director to be elected, shall be signed by all of the holders of Class C Common
Stock outstanding and entitled to vote on the election of the Class C Director.
Such consent shall have the same force and effect as the unanimous vote of the
holders of the Class C Common Stock.
In case of any vacancy occurring with respect to the Class C Director,
such vacancy may be filled only by the affirmative vote of the holders of a
majority of the then outstanding shares
of Class C Common Stock at a special meeting called as provided above or
pursuant to a written consent as provided above.
SECTION 2. VOTE OF CLASS B COMMON STOCK HOLDERS.
So long as NationsBanc (together with its Affiliates) continues to own
not less than fifty percent (50%) of the number of shares of Common Stock held
by NationsBanc immediately prior to the consummation of the Offering, the
Corporation may not take any Restricted Action unless either (a) the membership
of the Board of Directors includes a Class C Director and the Class C Director
voted in favor of the Restricted Action, or (b) the membership of the Board of
Directors does not at the time of approval of the Restricted Action by the Board
include a Class C Director and the Restricted Action has been approved by the
affirmative vote or consent of the holders of a majority of the outstanding
shares of Class B Common Stock, voting separately as a class.
SECTION 3. EXPIRATION OF RESTRICTIONS.
The restrictions set forth in Section 1 and 2 of this Article VII shall
terminate upon expiration of the Applicable Period.
ARTICLE VIII
MAJORITY VOTING; NO CUMULATIVE VOTING
SECTION 1. MAJORITY VOTING.
Any provision of the Act requiring, for the approval of any action of
the Corporation, a two-thirds vote of the shareholders is hereby superseded, and
any such action may (unless a greater percentage is expressly set forth in these
Articles of Incorporation for such matter) be approved by a majority of the
votes entitled to be cast by the outstanding shares entitled to vote on the
matter or, if applicable, a majority of the votes entitled to be cast by the
outstanding shares of each class or series of shares entitled to vote as a class
or series on such matter.
SECTION 2 NO CUMULATIVE VOTING.
No holder of any shares of stock of any class shall be entitled to
cumulative voting rights in any circumstances.
ARTICLE IX
NO PRE-EMPTIVE RIGHTS
No shareholders shall have any pre-emptive rights to acquire unissued
shares of the Corporation or securities of the Corporation convertible into or
carrying a right to subscribe to or acquire shares.
ARTICLE X
OFFERS FROM THIRD PARTIES
The Board of Directors of the Corporation shall consider in good faith
any bona fide offer from any third party to acquire any shares of stock or
assets of the Corporation, and shall pursue diligently any transaction
determined by the Board of Directors of the Corporation in good faith to be in
the best interests of the Corporation's shareholders.
ARTICLE XI
LIMITATION OF LIABILITY
OF DIRECTORS
No Director of the Corporation shall be liable to the Corporation or
its shareholders for monetary damages for breach of fiduciary duty as a
Director, provided, however, that this Article IX shall not eliminate or limit
the liability of a Director (i) for any breach of the Director's duty of loyalty
to the Corporation or its shareholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 8.65 of the Act, (iv) for any transaction from which the
Director derived an improper personal benefit, or (v) for any act or omission
occurring before the effective date of these Amended and Restated Articles of
Incorporation.
ARTICLE XII
BOARD OF DIRECTORS
The terms of office of the Board of Directors shall be and is divided
into three classes: Class I, Class II, and Class III. The Class I term will
expire at the annual meeting of shareholders to be held in 2000; the Class II
term will expire at the annual meeting of shareholders to be held in 2001; and
the Class III term will expire at the annual meeting of shareholders to be held
in 2002. At each annual meeting of shareholders after the initial
classification, the successors to directors whose term will then expire will be
elected to serve from the time of election and qualification until the third
annual meeting following election. The directorships will be distributed among
the three classes so that, as nearly as possible, each class will consist of
one-third of the directors.