EXHIBIT 3(a)
RESTATED CERTIFICATE OF INCORPORATION
OF
CAPITAL CITIES/ABC, INC.
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
WE, THE UNDERSIGNED, Ronald J. Doerfler and Philip
R. Farnsworth, being, respectively, Senior Vice President and Chief Financial
Officer and Secretary of Capital Cities/ABC, Inc., hereby certify:
FIRST: The name of the Corporation is Capital Cities/
ABC, Inc. The name under which the Corporation was incorporated is Hudson
Valley Broadcasting Company, Inc.
SECOND: The Certificate of Incorporation was filed by the Department
of State under the name Hudson Valley Broadcasting Company, Inc. on April 5,
1946.
THIRD: The text of the Certificate of Incorporation, as heretofore
amended, is hereby restated, without any amendment or change, to read as herein
set forth in full:
1. The name of the Corporation is Capital Cities/ABC,
Inc.
2. The purpose for which the Corporation is formed is to engage
in any lawful act or activity for which corporations may be organized under
the Business Corporation Law; provided, however, that the Corporation is
not formed to engage in any act or activity requiring the consent or
approval of any state official, department, board, agency, or other body
without first obtaining the consent of such body.
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3.A. Authorized Shares. The aggregate number of shares which
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the Corporation shall have authority to issue is 304,000,000 of which
4,000,000 shares shall be without par value and shall be designated
Preferred Stock, and 300,000,000 shares shall be with a par value of $.10
per share and shall be designated Common Stock.
B. Preferred Stock. Shares of Preferred Stock may
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be issued from time to time in one or more series as may be determined from
time to time by the Board of Directors. Except in respect of the
particulars to be fixed by the Board of Directors as provided below, all
shares of Preferred Stock shall be of equal rank. All shares in any one
series of Preferred Stock shall be alike in every particular except that
shares of any one series issued at different times may differ as to the
dates from which dividends thereon shall be cumulative. The voting rights,
if any, of each such series and the preferences and relative,
participating, optional and other special rights of each series and the
qualifications, limitations and restrictions thereof, if any, may differ
from those of any and all other series. The Board of Directors shall have
the authority to fix by resolutions, duly adopted prior to the issuance of
any shares of a particular series of Preferred Stock designated by the
Board of Directors, the voting rights, if any, of the holders of shares of
such series and the designations, preferences and relative, participating,
optional and other special rights of each series and the qualifications,
limitations and restrictions thereof.
Without limiting the generality of the foregoing authority of the
Board of Directors, the Board of Directors from time to time may:
(a) establish and designate a series of Preferred Stock, which
may be distinguished by number, letter or title from other Preferred Stock
of the Corporation or any series thereof;
(b) fix and thereafter increase or decrease (but not below the
number of shares thereof then outstanding) the number of shares that shall
constitute such series;
(c) provide for dividends on shares of such series and, if
provision is made for dividends, determine the dividend rate and the dates
on which dividends, if declared,
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shall be payable, whether the dividends shall be cumulative and, if
cumulative, for what date or dates dividends shall accrue, and the other
conditions, if any, including rights of priority, if any, upon which the
dividends shall be paid;
(d) provide as to whether the shares of such series shall be
redeemable, and if redeemable, the terms, limitations and restrictions
with respect to such redemption, including without limitation, the manner
of selecting shares for redemption if less than all shares are to be
redeemed, the time or times and the price or prices at which the shares of
such series shall be subject to redemption, in whole or in part, and the
amount, if any, in addition to any accrued dividends thereon which the
holders of shares of any series shall be entitled to receive upon the
redemption thereof, which amount may vary at different redemption dates
and may be different with respect to shares redeemed through the operation
of any purchase, retirement or sinking fund and with respect to shares
otherwise redeemed;
(e) fix the amount, in addition to any accrued dividends
thereon, which the holders of shares of such series shall be entitled to
receive upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, which amount may vary at different dates and
may vary depending on whether such liquidation, dissolution or winding up
is voluntary or involuntary, and to determine any other rights, if any, to
which holders of the shares of such series shall be entitled in the event
of any liquidation, dissolution or winding up of the Corporation;
(f) establish whether the shares of such series shall be subject
to the operation of a purchase, retirement or sinking fund and, if so, the
terms, limitations and restrictions with respect thereto, including without
limitation, whether such purchase, retirement or sinking fund shall be
cumulative or noncumulative, the extent to and the manner in which such
funds shall be applied to the purchase, retirement or redemption of the
shares of such series for retirement or to other corporate purposes and the
terms and provisions relative to the operation thereof;
(g) determine the extent of the voting rights, if any, of the
shares of such series and determine whether the shares of such series
having voting rights shall have multiple votes per share;
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(h) provide whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other class or classes
of capital stock of the Corporation, including Common Stock, Preferred
Stock or of any series thereof, and, if convertible or exchangeable,
establish the conversion or exchange price or rate, the adjustment thereof,
and the other terms and conditions, if any, on which such shares shall be
convertible or exchangeable; and
(i) provide for any other preferences, any relative
participating, optional or other special rights, any qualifications,
limitations or restrictions thereof, or any other term or provision of
shares of such series as the Board of Directors may deem appropriate or
desirable.
Shares of Preferred Stock may be issued by the Corpo-
ration for such consideration as is determined by the Board of Directors.
Series A Preferred Stock:
Section 1. Designation and Amount. The shares
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of such series shall be designated as "Series A Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting the
Series A Preferred Stock shall be 250,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided,
that no decrease shall reduce the number of shares of Series A Preferred
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A Preferred
Stock.
Section 2. Dividends and Distributions.
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(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking on a
parity with the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, par value $.10 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally
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available for the purpose, quarterly dividends payable in cash on the
first day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Preferred Stock. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such
case the amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in paragraph
(A) of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subse-
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quent Quarterly Dividend Payment Date, a dividend of $1 per share on
the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends
on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares
of Series A Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date
for the determination of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
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Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification
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or otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the number of votes per share to which holders of
shares of Series A Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Amendment creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
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(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or
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upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred
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Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized
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but unissued shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock subject to the conditions and restrictions on
issuance set forth in the Certificate of Incorporation or in any other
Certificate of Amendment creating a series of Preferred Stock or any
similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
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liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, provided that the holders of
shares of Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock
and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
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Section 7. Consolidation, Merger, etc. In case the Corporation
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shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case each share of Series A Preferred Stock shall at the
same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred
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Stock shall not be redeemable.
Section 9. Amendment. The Certificate of Incorporation of the
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Corporation shall not be amended in any manner which would materially alter
or change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
C. Common Stock. Subject to the preferential dividend rights
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applicable to shares of any series of Preferred Stock, the holders of
shares of Common Stock shall be entitled to receive such dividends as may
be declared by the Board of Directors. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
after distribution in full of the preferential
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amounts to be distributed to the holders of shares of the Preferred Stock,
the holders of shares of the Common Stock shall be entitled to receive all
of the remaining assets of the Corporation available for distribution to
its shareholders, ratably in proportion to the number of shares of the
Common Stock held by them. Except as otherwise provided in paragraph B of
this Article 3, the holders of shares of Common Stock shall be entitled to
vote on all matters at all meetings of the shareholders of the Corporation
and shall be entitled to one vote for each share of Common Stock entitled
to vote at such meeting.
Shares of Common Stock may be issued by the Board of Directors for
such consideration, having a value of not less than the par value thereof,
as is determined by the Board of Directors.
D. Restrictions Upon Voting Rights of Aliens. Any provisions herein
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to the contrary notwithstanding, except as otherwise provided by law, not
more than twenty percent of the aggregate number of shares outstanding
entitled to vote on any matter shall at any time be voted by or for the
account of aliens or their representatives, or by or for the account of a
foreign government or representative thereof, or by or for the account of
any corporation organized under the laws of a foreign country.
The Board of Directors shall make such rules and regulations as it
shall deem necessary or appropriate to enforce the provisions of this
paragraph D.
E. Transfer of Shares to Aliens. Except as otherwise provided by
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law, not more than twenty percent of the aggregate number of shares of
voting stock outstanding shall at any time be owned of record by or for the
account of aliens or their representatives or by or for the account of a
foreign government or representative thereof, or by or for the account of
any corporation organized under the laws of a foreign country.
Shares of stock shall be transferable on the books of the Corporation
to aliens and their representatives, foreign governments and
representatives thereof, and corporations organized under the laws of
foreign countries, or to any person holding for the account of aliens and
their representatives, foreign governments and representatives
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thereof, and corporations organized under the laws of foreign countries,
only, if after giving effect to such transfer, the aggregate number of
shares of stock owned by or for the account of aliens and their
representatives, foreign governments and representatives thereof, and cor-
porations organized under the laws of foreign countries, would be not more
than twenty percent of the number of shares of voting stock then
outstanding.
The Board of Directors shall make such rules and regulations as it
shall deem necessary or appropriate to enforce the foregoing provisions of
this paragraph E.
4. Neither the holders of the shares of the Common Stock nor the
holders of the shares of the Preferred Stock shall have preemptive rights
to purchase any shares of stock of any class or any other securities of the
Corporation.
5. The office of the Corporation is to be located in the City of New
York, County of New York, State of New York. The address to which the
Secretary of State shall mail a copy of process in any action or proceeding
against the Corporation which may be served on him is: 77 West 66th
Street, New York, New York 10023-6298, Attention: Secretary.
6. The Secretary of State of the State of New York is hereby
designated as the agent of the Corporation upon whom process in any action
or proceeding against it may be served.
7. The duration of the Corporation shall be perpetual.
8. The business and property of the Corporation shall be managed by a
Board of not fewer than seven nor more than 21 directors who shall be
elected by the shareholders, except as otherwise provided in the By-laws of
the Corporation. Directors need not be shareholders.
9. The Board of Directors of the Corporation shall have power by vote
of the majority of the directors and without the assent of the shareholders
to make, alter, amend and rescind the By-laws of the Corporation.
10. No director of the Corporation shall be personally liable to the
Corporation or any of its shareholders for monetary damages for breach of
duty as a director, except
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in a case where a court of competent jurisdiction finds that the acts or
omissions that are the subject of the cause of action were (1) taken in bad
faith, or (2) involved intentional misconduct or a knowing violation of
law, or (3) that the director personally obtained a financial profit or
other advantage to which the director was not legally entitled, or (4) that
the director's actions violated Section 719 of the New York Business
Corporation Law. Any repeal or modification of this Article 10 shall be
prospective only, and shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such
repeal or modifications.
FOURTH: The manner in which the aforesaid restated Certificate of
Incorporation was authorized was by at least a majority vote of the Board of
Directors.
IN WITNESS WHEREOF, we have signed this certificate on the 20th day of
May, 1994 and we affirm the statements contained therein as true under penalties
of perjury.
/S/ Ronald J. Doerfler
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Ronald J. Doerfler
Senior Vice President and
Chief Financial Officer
/S/ Philip R. Farnsworth
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Philip R. Farnsworth
Secretary