1
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CAPSTAR BROADCASTING PARTNERS, INC.
FIRST: The name of the corporation is Capstar Broadcasting Partners, Inc.
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in New
Castle County, Delaware. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
by the corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is Two Hundred Million (200,000,000)
shares of Common Stock of the par value of One Cent ($0.01) per share.
FIFTH: The name of the incorporator is P. Gregory Hidalgo and his mailing
address is c/o Vinson & Elkins L.L.P., 3700 Trammell Crow Center, 2001 Ross
Avenue, Dallas, Texas 75201.
SIXTH: The name and mailing address of each director, who shall serve
until the first annual meeting of stockholders or until their successors are
elected and qualified, are as follows:
Name Address
---- -------
Thomas O. Hicks 200 Crescent Court, Suite 1600
Dallas, Texas 75201
Eric C. Neuman 200 Crescent Court, Suite 1600
Dallas, Texas 75201
R. Steven Hicks 600 Congress, Suite 1270
Austin, Texas 78701
1
2
The number of directors of the corporation shall be as specified in, or
determined in the manner provided in, the bylaws. Election of directors need
not be by written ballot.
SEVENTH: In furtherance of, and not in limitation of, the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the bylaws of the corporation.
EIGHTH: 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 Title 8 of the Delaware Code 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 Title 8 of
the Delaware Code 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 of 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.
2
3
NINTH: No director of the corporation shall 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. In addition to the circumstances in which a director of the
corporation is not personally liable as set forth in the preceding sentence, a
director of the corporation shall not be liable to the fullest extent permitted
by any amendment to the Delaware General Corporation Law hereafter enacted that
further limits the liability of a director.
TENTH: The corporation shall have the right, subject to any express
provisions or restrictions contained in this certificate of incorporation or
bylaws of the corporation, from time to time, to amend this certificate of
incorporation or any provision hereof in any manner now or hereafter provided
by law, and all rights and powers of any kind conferred upon a director or
stockholder of this corporation by this certificate of incorporation or any
amendment hereof are subject to such right of the corporation.
I, the undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the Delaware General Corporation
Law, do make this certificate, hereby declaring that this is my act and deed
and that the facts herein stated are true, and accordingly have hereunto set my
hand this 11th day of October, 1996.
/s/ P. GREGORY HIDALGO
----------------------------------
P. Gregory Hidalgo
3
4
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
CAPSTAR BROADCASTING PARTNERS, INC.
(INCORPORATED ON OCTOBER 11, 1996)
(PURSUANT TO SECTION 242 OF THE GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE)
- -------------------------------------------------------------------------------
Capstar Broadcasting Partners, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), hereby certifies:
FIRST, that the board of directors of the Corporation duly adopted
resolutions proposing and declaring advisable the following amendments to the
Certificate of Incorporation of the Corporation in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware:
"RESOLVED, that the Board of Directors of the Corporation deems and
declares advisable an amendment to the Certificate of Incorporation of the
Corporation to amend Article FOURTH to read in its entirety as follows:
FOURTH: The total number of shares of all classes of capital
stock which the corporation shall have authority to issue is
210,000,000 shares consisting of (a) 10,000,000 shares of preferred
stock, par value of $.01 per share (the "Preferred Stock"), and (b)
200,000,000 shares of common stock, par value of $.01 per share (the
"Common Stock").
The designations, powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock
and the Common Stock are as follows:
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to
time in one or more classes or series, the shares of each class or
series to have such designations, powers, preferences and rights and
such qualifications, limitations and restrictions thereof as are
stated and expressed herein and in the resolution or resolutions
providing for the issue of such class or series adopted by the Board
of Directors of the corporation as hereafter prescribed.
(b) Authority is hereby expressly granted to and
vested in the Board of Directors to authorize the issuance of the
Preferred Stock from time to time
5
in one or more classes or series, and with respect to each class or
series of the Preferred Stock, to fix and state by the resolution or
resolutions from time to time adopted providing for the issuance
thereof the following:
(i) whether or not the class or series is
to have voting rights, full, special or limited, or is to be
without voting rights, and whether or not such class or
series is to be entitled to vote as a separate class either
alone or together with the holders of one or more other
classes or series of stock:
(ii) the number of shares to constitute the
class or series and the designations thereof;
(iii) the preferences and relative,
participating, optional or other special rights, if any, and
the qualifications, limitations or restrictions thereof, if
any, with respect to any class or series;
(iv) whether or not the shares of any class
or series shall be redeemable at the option of the
corporation or the holders thereof or upon the happening of
any specified event, and, if redeemable, the redemption price
or prices (which may be payable in the form of cash, notes,
securities or other property) and the time or times at which,
and the terms and conditions upon which, such shares shall be
redeemable and the manner of redemption;
(v) whether or not the shares of a class or
series shall be subject to the operation of retirement or
sinking funds to be applied to the purchase or redemption of
such shares for retirement, and, if such retirement or
sinking fund or funds are to be established, the annual
amount thereof and the terms and provisions relative to the
operation thereof;
(vi) the dividend rate, whether dividends
are payable in cash, securities of the corporation or other
property, the conditions upon which and the times when such
dividends are payable, the preference to or the relation to
the payment of dividends payable on any other class or
classes or series of stock, whether or not such dividends
shall be cumulative or noncumulative and, if cumulative, the
date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the
amounts thereof which the holders of any class or series
thereof shall be entitled to receive upon the voluntary or
involuntary dissolution of, or upon any distribution of the
assets of, the corporation;
2
6
(viii) whether or not the shares of any
class or series, at the option of the corporation or the
holder thereof or upon the happening of any specified event,
shall be convertible into or exchangeable for the shares of
any other class or classes or of any other series of the same
or any other class or classes of stock, securities, or other
property of the corporation and the conversion price or
prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall
be stated and expressed or provided for in such resolution or
resolutions; and
(ix) such other special rights and
protective provisions with respect to any class or series as
may to the Board of Directors seem advisable.
(c) The shares of each class or series of the
Preferred Stock may vary from the shares of any other class or series
thereof in any or all of the foregoing respects. The Board of
Directors may increase the number of shares of the Preferred Stock
designated for any existing class or series by a resolution adding to
such class or series authorized and unissued shares of the Preferred
Stock not designated for any other class or series. The Board of
Directors may decrease the number of shares of the Preferred Stock
designated for any existing class or series by a resolution
subtracting from such class or series authorized and unissued shares
of the Preferred Stock designated for such existing class or series,
and the shares so subtracted shall become authorized, unissued and
undesignated shares of the Preferred Stock.
2. Provisions Relating to the Common Stock.
(a) Each share of Common Stock of the corporation
shall have identical rights and privileges in every respect. The
holders of shares of Common Stock shall be entitled to vote upon all
matters submitted to a vote of the stockholders of the corporation and
shall be entitled to one vote for each share of Common Stock held.
(b) Subject to the prior rights and preferences, if
any, applicable to shares of the Preferred Stock or any series
thereof, the holders of shares of the Common Stock shall be entitled
to receive such dividends (payable in cash, stock or otherwise) as may
be declared thereon by the Board of Directors at any time and from
time to time out of any funds of the corporation legally available
therefor.
(c) In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the corporation, after
distribution in full of the preferential amounts, if any, to be
distributed to the holders of shares of the Preferred Stock or any
series thereof, 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 stockholders, ratably in proportion
to the number of shares of the
3
7
Common Stock held by them. A liquidation, dissolution or winding-up of
the corporation, as such terms are used in this subparagraph (c),
shall not be deemed to be occasioned by or to include any merger of
the corporation with or into one or more corporations or other
entities, any acquisition or exchange of the outstanding shares of one
or more classes or series of the corporation or any sale, lease,
exchange or other disposition of all or a part of the assets of the
corporation."
"RESOLVED, that the Board of Directors of the Corporation deems and
declares advisable an amendment to the Certificate of Incorporation of the
Corporation to amend Article ELEVENTH to read in its entirety as follows:
ELEVENTH: The following provisions are included for the
purpose of ensuring that control and management of the corporation
remain with citizens of the United States and corporations formed
under the laws of the Unites States or any of the states of the United
States, as required by the Communications Act of 1934, as the same may
be amended from time to time:
(a) The corporation shall not issue to a) a person
who is a citizen of a country other than the United States; any entity
organized under the laws of a government other than the government of
the United States or any state, territory, or possession of the United
States; a government other than the government of the United States or
of any state, territory, or possession of the United States; or a
representative of, or an individual or entity controlled by, any of
the foregoing (individually, an "Alien"; collectively, "Aliens") any
shares of capital stock of the corporation if such issuance would
result in the total number of shares of such capital stock held or
voted by Aliens (or for or by the account of Aliens) exceeding 25% of
(x) the total equity of the corporation outstanding at any time and
from time to time or (y) the total voting power of all shares of such
capital stock outstanding and entitled to vote at any time and from
time to time and shall nor permit the transfer on the books of the
corporation of any capital stock to any Alien that would result in the
total number of shares of such capital stock held or voted by Aliens
(or for or by the account of Aliens) exceeding such 25% limits.
(b) No Alien or Aliens, individually or
collectively, directly or indirectly, shall be entitled to vote or
direct or control the vote of more than 25% of a. the total equity of
the corporation outstanding at any time and from time to time or the
total voting power of all shares of capital stock of the corporation
outstanding and entitled to vote at any time and from time to time,
and issuances and transfers of capital stock of the corporation in
violation of this subsection (b) shall be prohibited.
(c) The Board of Directors shall have all powers
necessary to implement the provisions of this Article ELEVENTH and to
ensure compliance with the alien ownership restrictions (the "Alien
Ownership Restrictions") of the
4
8
Communications Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as the same may be amended from time to time
(collectively, the "Communications Act"), including, without
limitation, the power to prohibit the transfer of any shares of
capital stock of the corporation to any Alien and to take or cause to
be taken such action as it deems appropriate to implement such
prohibition, including placing a legend regarding restrictions on
foreign ownership of the capital stock on certificates representing
such stock.
(d) Without limiting the generality of the foregoing
and notwithstanding any other provision of this Restated Certificate
of Incorporation to the contrary, all shares of capital stock of the
corporation determined by the Board of Directors to be owned
beneficially by an Alien or Aliens or an entity directly or indirectly
owned by Aliens in whole or in part shall always be subject to
redemption by the corporation by action of the Board of Directors,
pursuant to Section 151 of the General Corporation Law of the State of
Delaware, or any other applicable provision of law, to the extent
necessary in the judgment of the Board of Directors to comply with the
Alien Ownership Restrictions. The terms and conditions of such
redemption shall be as follows:
(i) the redemption price of the shares to
be redeemed pursuant to this Article ELEVENTH shall be equal
to the lower of a) the fair market value of the shares to be
redeemed, as determined by the Board of Directors in good
faith, and such Alien's purchase price for such shares;
(ii) the redemption price of such shares
may be paid in cash, securities or any combination thereof;
(iii) if less than all the shares held by
Aliens are to be redeemed, the shares to be redeemed shall be
selected in any manner determined by the Board of Directors
to be fair and equitable;
(iv) at least 10 days' written notice of
the redemption date shall be given to the holders of record
of the shares selected to be redeemed (unless waived in
writing by any such holder), provided that the redemption
date may be the date on which written notice shall be given
to holders if the cash or securities necessary to effect the
redemption shall have been deposited in trust for the benefit
of such holders and subject to immediate withdrawal by them
upon surrender of the stock certificates for their shares to
be redeemed duly endorsed in blank or accompanied by duly
executed proper instruments of transfer;
(v) from and after the redemption date,
the shares to be redeemed shall cease to be regarded as
outstanding and any and all rights of
5
9
the holders in respect of the shares to be redeemed or
attaching to such shares of whatever nature (including
without limitation any rights to vote or participate in
dividends declared on stock of the same class or series as
such shares) shall cease and terminate, and the holders
thereof thereafter shall be entitled only to receive the cash
or securities payable upon redemption; and
(vi) such other terms and conditions as the
Board of Directors shall determine.
For purposes of this Article ELEVENTH, the determination of beneficial
ownership of shares of capital stock of the corporation shall be made
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
unless otherwise required by the Alien Ownership Restrictions."
SECOND, that in lieu of a meeting and vote of stockholders, the
stockholders of the Corporation have given written consent to said amendments
in accordance with the provisions of Section 228(a) of the General Corporation
Law of the State of Delaware.
THIRD, that the previously stated amendments to the Certificate of
Incorporation of the Corporation were duly adopted by the stockholders of the
Corporation in accordance with the provisions of Section 242 and of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
13th day of February, 1997.
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ R. STEVEN HICKS
--------------------------------
R. Steven Hicks, President
6
10
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
CAPSTAR BROADCASTING PARTNERS, INC.
(INCORPORATED ON OCTOBER 11, 1996)
(PURSUANT TO SECTION 242 OF THE GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE)
- -------------------------------------------------------------------------------
Capstar Broadcasting Partners, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), hereby certifies:
FIRST, that the board of directors of the Corporation duly adopted
resolutions proposing and declaring advisable the following amendments to the
Certificate of Incorporation of the Corporation in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware:
"RESOLVED, that the Board of Directors of the Corporation deems and
declares advisable an amendment to the Certificate of Incorporation of the
Corporation to amend Article FOURTH to read in its entirety as follows:
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is
260,000,000 shares consisting of (a) 10,000,000 shares of preferred
stock, par value of One Cent ($.01) per share (the "Preferred Stock"),
(b) 200,000,000 shares of Class A Common Stock, par value of One Cent
($.01) per share (the "Class A Common Stock"), and (c) 50,000,000
shares of Class B Common Stock, par value of One Cent ($.01) per share
(the "Class B Common Stock) (the Class A Common Stock and Class B
Common Stock, collectively, the "Common Stock").
The designations, powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock
and the Common Stock are as follows:
1. Reclassification of Existing Capital Stock.
(a) Subject to paragraph (b) below, upon the filing
of this Certificate of Amendment to Certificate of Incorporation, each
share of Common Stock, par value of One Cent ($.01) per share, of the
Corporation then outstanding shall be reclassified into one share of
the Class A Common Stock (such reclassification being the
"Reclassification"), and thereupon the authorized capital stock of the
Corporation shall be as provided in the first paragraph of Article
FOURTH above.
11
(b) After the Reclassification, each holder of the
shares of capital stock of the Corporation being reclassified as
provided herein shall be entitled to receive, upon surrender at the
office of the Corporation or the transfer agent for the Common Stock
of such holder's certificate or certificates representing the shares
being reclassified, duly endorsed in blank or accompanied by duly
executed proper instruments of transfer, as promptly as practicable
after such surrender one or more certificates evidencing the Class A
Common Stock issuable to such holder in respect of the
Reclassification. After the Reclassification, pending the issuance and
delivery of such certificates in accordance herewith, the certificate
or certificates evidencing the shares of capital stock being
reclassified shall be deemed to evidence the shares of Class A Common
Stock issuable upon the Reclassification.
2. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to
time in one or more classes or series, the shares of each class or
series to have such designations, powers, preferences and rights and
such qualifications, limitations and restrictions thereof as are
stated and expressed herein and in the resolution or resolutions
providing for the issue of such class or series adopted by the Board
of Directors of the corporation as hereafter prescribed.
(b) Authority is hereby expressly granted to and
vested in the Board of Directors to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series,
and with respect to each class or series of the Preferred Stock, to
fix and state by the resolution or resolutions from time to time
adopted providing for the issuance thereof the following:
(i) whether or not the class or series is
to have voting rights, full, special or limited, or is to be
without voting rights, and whether or not such class or
series is to be entitled to vote as a separate class either
alone or together with the holders of one or more other
classes or series of stock:
(ii) the number of shares to constitute
the class or series and the designations thereof;
(iii) the preferences and relative,
participating, optional or other special rights, if any, and
the qualifications, limitations or restrictions thereof, if
any, with respect to any class or series;
(iv) whether or not the shares of any
class or series shall be redeemable at the option of the
corporation or the holders thereof or upon the happening of
any specified event, and, if redeemable, the redemption price
or prices (which may be payable in the form of cash, notes,
securities or other
2
12
property) and the time or times at which, and the terms and
conditions upon which, such shares shall be redeemable and
the manner of redemption;
(v) whether or not the shares of a class
or series shall be subject to the operation of retirement or
sinking funds to be applied to the purchase or redemption of
such shares for retirement, and, if such retirement or
sinking fund or funds are to be established, the annual
amount thereof and the terms and provisions relative to the
operation thereof;
(vi) the dividend rate, whether dividends
are payable in cash, securities of the corporation or other
property, the conditions upon which and the times when such
dividends are payable, the preference to or the relation to
the payment of dividends payable on any other class or
classes or series of stock, whether or not such dividends
shall be cumulative or noncumulative and, if cumulative, the
date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the
amounts thereof which the holders of any class or series
thereof shall be entitled to receive upon the voluntary or
involuntary dissolution of, or upon any distribution of the
assets of, the corporation;
(viii) whether or not the shares of any
class or series, at the option of the corporation or the
holder thereof or upon the happening of any specified event,
shall be convertible into or exchangeable for the shares of
any other class or classes or of any other series of the same
or any other class or classes of stock, securities, or other
property of the corporation and the conversion price or
prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall
be stated and expressed or provided for in such resolution or
resolutions; and
(ix) such other special rights and
protective provisions with respect to any class or series as
may to the Board of Directors seem advisable.
(c) The shares of each class or series of the
Preferred Stock may vary from the shares of any other class or series
thereof in any or all of the foregoing respects. The Board of
Directors may increase the number of shares of the Preferred Stock
designated for any existing class or series by a resolution adding to
such class or series authorized and unissued shares of the Preferred
Stock not designated for any other class or series. The Board of
Directors may decrease the number of shares of the Preferred Stock
designated for any existing class or series by a resolution
subtracting from such class or series authorized and unissued shares
of the Preferred
3
13
Stock designated for such existing class or series, and the shares so
subtracted shall become authorized, unissued and undesignated shares
of the Preferred Stock.
3. Provisions Relating to the Common Stock.
(a) General. Except as otherwise provided herein or as
otherwise provided by applicable law, all shares of Common Stock shall have
identical rights and privileges in every respect.
(b) Dividends. Subject to the prior rights and
preferences, if any, applicable to shares of the Preferred Stock, the holders
of the Common Stock shall be entitled to participate ratably, on a
share-for-share basis as if all shares were of a single class, in such
dividends, whether in cash, stock or otherwise, as may be declared by the Board
of Directors from time to time out of funds of the Corporation legally
available therefor; provided, however, that any dividends payable in shares of
Common Stock (or payable in rights to subscribe for or purchase shares of
Common Stock or securities or indebtedness convertible into shares of Common
Stock) shall be declared and paid at the same rate on each class of Common
Stock and only in shares of Class A Common Stock (or rights to subscribe for or
purchase shares of Class A Common Stock or securities or indebtedness
convertible into shares of Class A Common Stock) to holders of Class A Common
Stock, and in shares of Class B Common Stock (or rights to subscribe for or
purchase shares of Class B Common Stock or securities or indebtedness
convertible into shares of Class B Common Stock) to holders of Class B Common
Stock.
(c) Voting. The holders of Class A Common Stock shall be
entitled to one vote per share with respect to all matters submitted to a vote
of stockholders. The Class B Common Stock shall not be entitled to vote, except
as required by law.
(d) Adjustments for Stock Splits and Stock Dividends. The
Corporation shall treat the shares of Common Stock identically in respect of
any subdivisions or combinations (for example, if the Corporation effects a
two-for-one stock split with respect to the Class A Common Stock, it shall at
the same time effect a two-for-one stock split with respect to the Class B
Common Stock).
(e) Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution, or winding-up of the Corporation, after
all creditors of the Corporation shall have been paid in full and after payment
of all sums payable in respect of Preferred Stock, if any, the holders of the
Common Stock shall share ratably on a share-for-share basis in all
distributions of assets pursuant to such voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation. For the purposes of this
paragraph (e), neither the merger nor the consolidation of the Corporation into
or with another entity or the merger or consolidation of any other entity into
or with the Corporation, or the sale, transfer, or other disposition of all or
substantially all the assets of the Corporation, shall be deemed to be a
voluntary or involuntary liquidation, dissolution, or winding-up of the
Corporation.
4
14
(f) Consideration in Substantial Transaction. In any
merger, consolidation or business combination, the per share consideration
received by the holders of the Common Stock must be economically identical,
except that in any such transaction, any capital stock issued to holders of
Common Stock may differ as to rights to the same extent as the rights of the
classes of Common Stock authorized hereby differ.
(g) Conversion. Subject to required consent of the
Federal Communication Commission (the "FCC"), if any, the shares of Class B
Common Stock shall be convertible in whole or in part at any time at the option
of the holder or holders thereof into an equal number of fully paid and
non-assessable shares of Class A Common Stock, for no additional consideration.
At the time of any such conversion or, in the event such conversion requires
the consent of the FCC, at the time the FCC order approving such a conversion
becomes a final order, the holder or holders of Class B Common Stock shall
deliver to the office of the Corporation or any transfer agent for the Common
Stock the certificate or certificates representing the shares of Class B Common
Stock to be converted, duly endorsed in blank or accompanied by duly executed
proper instruments of transfer, and written notice to the Corporation stating
that such holder or holders elect(s) to convert such share or shares and
stating the name and addresses in which each certificate for shares of Class A
Common Stock issued upon such conversion is to be issued. Conversion shall be
deemed to have been effected at the time and date when such delivery is made to
the Corporation or the transfer agent of the shares to be converted, and the
person exercising such voluntary conversion shall be deemed to be the holder of
record of the number of shares of Class A Common Stock issuable upon such
conversion at such time. As promptly as practicable following any holder's
conversion of shares of Class B Common Stock, the Corporation shall issue and
deliver to the converting holder or to such holder's transferee, as the case
may be, one or more certificates (as such holder may request) evidencing the
shares of Class A Common Stock issuable in respect of the applicable conversion
and if the certificates surrendered by the converting holder evidence more
shares of Class B Common Stock than the holder has elected to convert, one or
more certificates (as such holder may request) evidencing the shares of Class B
Common Stock which have not been converted. Pending the issuance and delivery
of the foregoing certificates, the certificate or certificates evidencing the
shares of Class B Common Stock that have been surrendered for conversion shall
be deemed to evidence the shares of Class A Common Stock issuable upon such
conversion. Any dividends declared and not paid on shares of Class B Common
Stock prior to their conversion as provided above shall be paid, on the payment
date, to the holder or holders entitled thereto on the record date for such
dividend payment, notwithstanding such conversion; provided, however, that such
holder or holders shall not be entitled to receive the corresponding dividends
declared but not paid on the shares of Class A Common Stock issuable upon such
conversion. The Corporation shall at all times reserve and keep available out
of its authorized but unissued shares of Class A Common Stock, solely for the
purpose of effecting the conversions provided for herein, such number of shares
of Class A Common Stock as shall from time to time be sufficient to effect the
conversions provided for herein and shall take all such corporate action as may
be necessary to assure that such shares of Class A Common Stock shall be
validly issued, fully paid and non-assessable upon conversion of all of the
outstanding shares of Class B Common Stock; moreover, if at any time the number
of authorized but unissued shares of Class A Common Stock shall not be
5
15
sufficient to effect the conversions provided for herein, the Corporation shall
take such corporate action as may be necessary to increase its authorized but
unissued shares of Class A Common Stock to such number of shares as shall be
sufficient for such purpose.
SECOND, that in lieu of a meeting and vote of stockholders, the
stockholders of the Corporation have given written consent to said amendments
in accordance with the provisions of Section 228(a) of the General Corporation
Law of the State of Delaware.
THIRD, that the previously stated amendments to the Certificate of
Incorporation of the Corporation were duly adopted by the stockholders of the
Corporation in accordance with the provisions of Section 242 and of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
19th day of February, 1997.
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ R. STEVEN HICKS
-------------------------------
R. Steven Hicks, President
6
16
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
CAPSTAR BROADCASTING PARTNERS, INC.
(Incorporated on October 11, 1996)
(Pursuant to Section 242 of the General Corporation
Law of the State of Delaware)
- --------------------------------------------------------------------------------
Capstar Broadcasting Partners, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), hereby certifies:
FIRST, that the board of directors of the Corporation duly adopted
resolutions proposing and declaring advisable the following amendments to the
Certificate of Incorporation of the Corporation in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware:
"RESOLVED, that the Board of Directors of the Corporation deems and
declares advisable an amendment to the Certificate of Incorporation of the
Corporation to amend Article FOURTH to read in its entirety as follows:
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is
260,000,000 shares consisting of (a) 10,000,000 shares of preferred
stock, par value of One Cent ($.01) per share (the "Preferred Stock"),
(b) 200,000,000 shares of Class A Common Stock, par value of One Cent
($.01) per share (the "Class A Common Stock"), and (c) 50,000,000
shares of Class B Common Stock, par value of One Cent ($.01) per share
(the "Class B Common Stock) (the Class A Common Stock and Class B
Common Stock, collectively, the "Common Stock").
The designations, powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and the Common
Stock are as follows:
1. Reclassification of Existing Capital Stock.
(a) Subject to paragraph (b) below, upon the filing
of this Certificate of Amendment to Certificate of Incorporation, each
share of Common Stock, par value of One Cent ($.01) per share, of the
Corporation then outstanding shall be reclassified into one share of
the Class A Common Stock (such reclassification being the
"Reclassification"), and thereupon the authorized capital stock of the
Corporation shall be as provided in the first paragraph of Article
FOURTH above.
17
(b) After the Reclassification, each holder of the shares
of capital stock of the Corporation being reclassified as provided herein shall
be entitled to receive, upon surrender at the office of the Corporation or the
transfer agent for the Common Stock of such holder's certificate or
certificates representing the shares being reclassified, duly endorsed in blank
or accompanied by duly executed proper instruments of transfer, as promptly as
practicable after such surrender one or more certificates evidencing the Class
A Common Stock issuable to such holder in respect of the Reclassification.
After the Reclassification, pending the issuance and delivery of such
certificates in accordance herewith, the certificate or certificates evidencing
the shares of capital stock being reclassified shall be deemed to evidence the
shares of Class A Common Stock issuable upon the Reclassification.
2. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to
time in one or more classes or series, the shares of each class or series to
have such designations, powers, preferences and rights and such qualifications,
limitations and restrictions thereof as are stated and expressed herein and in
the resolution or resolutions providing for the issue of such class or series
adopted by the Board of Directors of the corporation as hereafter prescribed.
(b) Authority is hereby expressly granted to and
vested in the Board of Directors to authorize the issuance of the Preferred
Stock from time to time in one or more classes or series, and with respect to
each class or series of the Preferred Stock, to fix and state by the resolution
or resolutions from time to time adopted providing for the issuance thereof the
following:
(i) whether or not the class or series is
to have voting rights, full, special or limited, or is to be without
voting rights, and whether or not such class or series is to be
entitled to vote as a separate class either alone or together with the
holders of one or more other classes or series of stock:
(ii) the number of shares to constitute the
class or series and the designations thereof;
(iii) the preferences and relative, participating,
optional or other special rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to any class
or series;
(iv) whether or not the shares of any class or
series shall be redeemable at the option of the corporation or the
holders thereof or upon the happening of any specified event, and, if
redeemable, the redemption price or prices (which may be payable in the
form of cash, notes, securities or other
2
18
property) and the time or times at which, and the terms and conditions
upon which, such shares shall be redeemable and the manner of
redemption;
(v) whether or not the shares of a class or series
shall be subject to the operation of retirement or sinking funds to be
applied to the purchase or redemption of such shares for retirement,
and, if such retirement or sinking fund or funds are to be established,
the annual amount thereof and the terms and provisions relative to the
operation thereof;
(vi) the dividend rate, whether dividends are
payable in cash, securities of the corporation or other property, the
conditions upon which and the times when such dividends are payable,
the preference to or the relation to the payment of dividends payable
on any other class or classes or series of stock, whether or not such
dividends shall be cumulative or noncumulative and, if cumulative, the
date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts
thereof which the holders of any class or series thereof shall be
entitled to receive upon the voluntary or involuntary dissolution of,
or upon any distribution of the assets of, the corporation;
(viii) whether or not the shares of any class or
series, at the option of the corporation or the holder thereof or upon
the happening of any specified event, shall be convertible into or
exchangeable for the shares of any other class or classes or of any
other series of the same or any other class or classes of stock,
securities, or other property of the corporation and the conversion
price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be stated
and expressed or provided for in such resolution or resolutions; and
(ix) such other special rights and protective
provisions with respect to any class or series as may to the Board of
Directors seem advisable.
(c) The shares of each class or series of the Preferred
Stock may vary from the shares of any other class or series thereof in any or
all of the foregoing respects. The Board of Directors may increase the number
of shares of the Preferred Stock designated for any existing class or series by
a resolution adding to such class or series authorized and unissued shares of
the Preferred Stock not designated for any other class or series. The Board of
Directors may decrease the number of shares of the Preferred Stock designated
for any existing class or series by a resolution subtracting from such class or
series authorized and unissued shares of the Preferred
3
19
Stock designated for such existing class or series, and the shares so
subtracted shall become authorized, unissued and undesignated shares
of the Preferred Stock.
3. Provisions Relating to the Common Stock.
(a) General. Except as otherwise provided
herein or as otherwise provided by applicable law, all shares of Common Stock
shall have identical rights and privileges in every respect.
(b) Dividends. Subject to the prior rights
and preferences, if any, applicable to shares of the Preferred Stock, the
holders of the Common Stock shall be entitled to participate ratably, on a
share-for-share basis as if all shares were of a single class, in such
dividends, whether in cash, stock or otherwise, as may be declared by the Board
of Directors from time to time out of funds of the Corporation legally
available therefor; provided, however, that any dividends payable in shares of
Common Stock (or payable in rights to subscribe for or purchase shares of
Common Stock or securities or indebtedness convertible into shares of Common
Stock) shall be declared and paid at the same rate on each class of Common
Stock and only in shares of Class A Common Stock (or rights to subscribe for or
purchase shares of Class A Common Stock or securities or indebtedness
convertible into shares of Class A Common Stock) to holders of Class A Common
Stock, and in shares of Class B Common Stock (or rights to subscribe for or
purchase shares of Class B Common Stock or securities or indebtedness
convertible into shares of Class B Common Stock) to holders of Class B Common
Stock.
(c) Voting. The holders of Class A Common
Stock shall be entitled to one vote per share with respect to all matters
submitted to a vote of stockholders. The Class B Common Stock shall not be
entitled to vote, except as required by law; provided, however, that the Class
B Common Stock shall not have the right to vote on any matter if such right
would cause the Class B Common Stock to become voting securities within the
meaning of 12 C.F.R. 225.2(p), as that section may be amended from time to
time.
(d) Adjustments for Stock Splits and Stock
Dividends. The Corporation shall treat the shares of Common Stock identically
in respect of any subdivisions or combinations (for example, if the Corporation
effects a two-for-one stock split with respect to the Class A Common Stock, it
shall at the same time effect a two-for-one stock split with respect to the
Class B Common Stock).
(e) Liquidation. In the event of any voluntary
or involuntary liquidation, dissolution, or winding-up of the Corporation,
after all creditors of the Corporation shall have been paid in full and after
payment of all sums payable in respect of Preferred Stock, if any, the holders
of the Common Stock shall share ratably on a share-for-share basis in all
distributions of assets pursuant to such voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation. For the purposes of this
paragraph (e), neither the merger nor the consolidation of the Corporation into
or with another entity or the merger or consolidation of any other entity into
or with the
4
20
Corporation, or the sale, transfer, or other disposition of all or
substantially all the assets of the Corporation, shall be deemed to be a
voluntary or involuntary liquidation, dissolution, or winding-up of the
Corporation.
(f) Consideration in Substantial Transaction.
In any merger, consolidation or business combination, the per share
consideration received by the holders of the Common Stock must be economically
identical, except that in any such transaction, any capital stock issued to
holders of Common Stock may differ as to rights to the same extent as the
rights of the classes of Common Stock authorized hereby differ.
(g) Conversion. Subject to required consent
of the Federal Communication Commission (the "FCC"), if any, the shares of
Class B Common Stock shall be convertible in whole or in part at any time at
the option of the holder or holders thereof if such holder(s) is not a
Regulated Entity (as defined below) into an equal number of fully paid and
non-assessable shares of Class A Common Stock, for no additional consideration.
"Regulated Entity" means (i) any entity that is a "bank holding company" (as
defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended
(the "BHC Act")) or any non-bank subsidiary of such an entity and (ii) any
entity, that pursuant to Section 8(a) of the International Banking Act of 1978,
as amended, is subject to the provisions of the BHC Act or any non-bank
subsidiary of such an entity. At the time of any such conversion or, in the
event such conversion requires the consent of the FCC, at the time the FCC
order approving such a conversion becomes a final order, the holder or holders
of Class B Common Stock shall deliver to the office of the Corporation or any
transfer agent for the Common Stock the certificate or certificates
representing the shares of Class B Common Stock to be converted, duly endorsed
in blank or accompanied by duly executed proper instruments of transfer, and
written notice to the Corporation stating that such holder or holders elect(s)
to convert such share or shares and stating the name and addresses in which
each certificate for shares of Class A Common Stock issued upon such conversion
is to be issued. Conversion shall be deemed to have been effected at the time
and date when such delivery is made to the Corporation or the transfer agent of
the shares to be converted, and the person exercising such voluntary conversion
shall be deemed to be the holder of record of the number of shares of Class A
Common Stock issuable upon such conversion at such time. As promptly as
practicable following any holder's conversion of shares of Class B Common
Stock, the Corporation shall issue and deliver to the converting holder or to
such holder's transferee, as the case may be, one or more certificates (as such
holder may request) evidencing the shares of Class A Common Stock issuable in
respect of the applicable conversion and if the certificates surrendered by the
converting holder evidence more shares of Class B Common Stock than the holder
has elected to convert, one or more certificates (as such holder may request)
evidencing the shares of Class B Common Stock which have not been converted.
Pending the issuance and delivery of the foregoing certificates, the
certificate or certificates evidencing the shares of Class B Common Stock that
have been surrendered for conversion shall be deemed to evidence the shares of
Class A Common Stock issuable upon such conversion. Any dividends declared and
not paid on shares of Class B Common Stock prior to their conversion as
provided above shall be paid, on the payment date, to the holder or holders
entitled thereto on the record date for such dividend payment, notwithstanding
such conversion; provided,
5
21
however, that such holder or holders shall not be entitled to receive the
corresponding dividends declared but not paid on the shares of Class A Common
Stock issuable upon such conversion. The Corporation shall at all times reserve
and keep available out of its authorized but unissued shares of Class A Common
Stock, solely for the purpose of effecting the conversions provided for herein,
such number of shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversions provided for herein and shall take all
such corporate action as may be necessary to assure that such shares of Class A
Common Stock shall be validly issued, fully paid and non-assessable upon
conversion of all of the outstanding shares of Class B Common Stock; moreover,
if at any time the number of authorized but unissued shares of Class A Common
Stock shall not be sufficient to effect the conversions provided for herein,
the Corporation shall take such corporate action as may be necessary to
increase its authorized but unissued shares of Class A Common Stock to such
number of shares as shall be sufficient for such purpose.
(h) Transferability. Notwithstanding any
other provision contained in this Certificate of Incorporation, if a holder of
the Class B Common Stock is a Regulated Entity, such holder may transfer the
Class B Common Stock only under the following circumstances: (i) in a widely
distributed public offering; (ii) in a transfer pursuant to Rule 144 under the
Securities Act of 1933 or any similar rule then in force; (iii) in a transfer
constituting two percent or less of the outstanding shares of the Class B
Common Stock; (iv) in a transfer to a person if such person already owns or has
negotiated to purchase at least a majority of the Class A Common Stock; (v) in
a transfer to the Corporation; (vi) in a transfer to an affiliate of such
holder or to any other Regulated Entity; or (vii) in any method of transfer
permitted by the Board of Governors of the Federal Reserve System.
SECOND, that in lieu of a meeting and vote of stockholders, the
stockholders of the Corporation have given written consent to said amendments
in accordance with the provisions of Section 228(a) of the General Corporation
Law of the State of Delaware.
THIRD, that the previously stated amendments to the Certificate of
Incorporation of the Corporation were duly adopted by the stockholders of the
Corporation in accordance with the provisions of Section 242 and of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
24th day of April, 1997.
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ R. Steven Hicks
----------------------------------
R. Steven Hicks
President
6
22
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
CAPSTAR BROADCASTING PARTNERS, INC.
(PURSUANT TO SECTION 103(f) OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE)
- -------------------------------------------------------------------------------
Capstar Broadcasting Partners, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), hereby certifies:
That paragraph FIRST of the Certificate of Amendment to Certificate of
Incorporation ("Certificate of Amendment"), filed with the Delaware Secretary
of State on April 25, 1997, incorrectly purported to amend Article FOURTH to
provide for a reclassification of the Corporation's then outstanding Common
Stock into Class A Common Stock when the intent of the Corporation was not to
reclassify its existing Common Stock. Thus, paragraph FIRST of the Certificate
of Amendment in its corrected form should read as follows:
FIRST, that the board of directors of the Corporation duly adopted
resolutions proposing and declaring advisable the following amendments to the
Certificate of Incorporation of the Corporation in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware:
"RESOLVED, that the Board of Directors of the Corporation deems and
declares advisable an amendment to the Certificate of Incorporation of the
Corporation to amend Article FOURTH to read in its entirety as follows:
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is
260,000,000 shares consisting of (a) 10,000,000 shares of preferred
stock, par value of One Cent ($.01) per share (the "Preferred Stock"),
(b) 200,000,000 shares of Class A Common Stock, par value of One Cent
($.01) per share (the "Class A Common Stock"), and (c) 50,000,000
shares of Class B Common Stock, par value of One Cent ($.01) per share
(the "Class B Common Stock) (the Class A Common Stock and Class B
Common Stock, collectively, the "Common Stock").
The designations, powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock
and the Common Stock are as follows:
23
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to
time in one or more classes or series, the shares of each class or
series to have such designations, powers, preferences and rights and
such qualifications, limitations and restrictions thereof as are
stated and expressed herein and in the resolution or resolutions
providing for the issue of such class or series adopted by the Board
of Directors of the corporation as hereafter prescribed.
(b) Authority is hereby expressly granted to and
vested in the Board of Directors to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series,
and with respect to each class or series of the Preferred Stock, to
fix and state by the resolution or resolutions from time to time
adopted providing for the issuance thereof the following:
(i) whether or not the class or series is
to have voting rights, full, special or limited, or is to be
without voting rights, and whether or not such class or
series is to be entitled to vote as a separate class either
alone or together with the holders of one or more other
classes or series of stock;
(ii) the number of shares to constitute the
class or series and the designations thereof;
(iii)the preferences and relative,
participating, optional or other special rights, if any, and
the qualifications, limitations or restrictions thereof, if
any, with respect to any class or series;
(iv) whether or not the shares of any class
or series shall be redeemable at the option of the
corporation or the holders thereof or upon the happening of
any specified event, and, if redeemable, the redemption price
or prices (which may be payable in the form of cash, notes,
securities or other property) and the time or times at which,
and the terms and conditions upon which, such shares shall be
redeemable and the manner of redemption;
(v) whether or not the shares of a class
or series shall be subject to the operation of retirement or
sinking funds to be applied to the purchase or redemption of
such shares for retirement, and, if such retirement or
sinking fund or funds are to be established, the annual
amount thereof and the terms and provisions relative to the
operation thereof;
(vi) the dividend rate, whether dividends
are payable in cash, securities of the corporation or other
property, the conditions upon which and the times when such
dividends are payable, the preference to or the relation to
the payment of dividends payable on any other class or
classes or
2
24
series of stock, whether or not such dividends shall be
cumulative or noncumulative and, if cumulative, the date or
dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the
amounts thereof which the holders of any class or series
thereof shall be entitled to receive upon the voluntary or
involuntary dissolution of, or upon any distribution of the
assets of, the corporation;
(viii) whether or not the shares of any
class or series, at the option of the corporation or the
holder thereof or upon the happening of any specified event,
shall be convertible into or exchangeable for the shares of
any other class or classes or of any other series of the same
or any other class or classes of stock, securities, or other
property of the corporation and the conversion price or
prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall
be stated and expressed or provided for in such resolution or
resolutions; and
(ix) such other special rights and
protective provisions with respect to any class or series as
may to the Board of Directors seem advisable.
(c) The shares of each class or series of the
Preferred Stock may vary from the shares of any other class or series
thereof in any or all of the foregoing respects. The Board of
Directors may increase the number of shares of the Preferred Stock
designated for any existing class or series by a resolution adding to
such class or series authorized and unissued shares of the Preferred
Stock not designated for any other class or series. The Board of
Directors may decrease the number of shares of the Preferred Stock
designated for any existing class or series by a resolution
subtracting from such class or series authorized and unissued shares
of the Preferred Stock designated for such existing class or series,
and the shares so subtracted shall become authorized, unissued and
undesignated shares of the Preferred Stock.
2. Provisions Relating to the Common Stock.
(a) General. Except as otherwise provided herein or
as otherwise provided by applicable law, all shares of Common Stock
shall have identical rights and privileges in every respect.
(b) Dividends. Subject to the prior rights and
preferences, if any, applicable to shares of the Preferred Stock, the
holders of the Common Stock shall be entitled to participate ratably,
on a share-for-share basis as if all shares were of a single class, in
such dividends, whether in cash, stock or otherwise, as may be
declared by the Board of Directors from time to time out of funds of
the Corporation legally available therefor; provided, however, that
any dividends payable in shares of Common Stock (or payable in rights
to subscribe for or purchase shares of
3
25
Common Stock or securities or indebtedness convertible into shares of
Common Stock) shall be declared and paid at the same rate on each
class of Common Stock and only in shares of Class A Common Stock (or
rights to subscribe for or purchase shares of Class A Common Stock or
securities or indebtedness convertible into shares of Class A Common
Stock) to holders of Class A Common Stock, and in shares of Class B
Common Stock (or rights to subscribe for or purchase shares of Class B
Common Stock or securities or indebtedness convertible into shares of
Class B Common Stock) to holders of Class B Common Stock.
(c) Voting. The holders of Class A Common Stock
shall be entitled to one vote per share with respect to all matters
submitted to a vote of stockholders. The Class B Common Stock shall
not be entitled to vote, except as required by law; provided, however,
that the Class B Common Stock shall not have the right to vote on any
matter if such right would cause the Class B Common Stock to become
voting securities within the meaning of 12 C.F.R. 225.2(p), as that
section may be amended from time to time.
(d) Adjustments for Stock Splits and Stock
Dividends. The Corporation shall treat the shares of Common Stock
identically in respect of any subdivisions or combinations (for
example, if the Corporation effects a two-for-one stock split with
respect to the Class A Common Stock, it shall at the same time effect
a two-for-one stock split with respect to the Class B Common Stock).
(e) Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution, or winding-up of the
Corporation, after all creditors of the Corporation shall have been
paid in full and after payment of all sums payable in respect of
Preferred Stock, if any, the holders of the Common Stock shall share
ratably on a share-for-share basis in all distributions of assets
pursuant to such voluntary or involuntary liquidation, dissolution, or
winding-up of the Corporation. For the purposes of this paragraph (e),
neither the merger nor the consolidation of the Corporation into or
with another entity or the merger or consolidation of any other entity
into or with the Corporation, or the sale, transfer, or other
disposition of all or substantially all the assets of the Corporation,
shall be deemed to be a voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation.
(f) Consideration in Substantial Transaction. In any
merger, consolidation or business combination, the per share
consideration received by the holders of the Common Stock must be
economically identical, except that in any such transaction, any
capital stock issued to holders of Common Stock may differ as to
rights to the same extent as the rights of the classes of Common Stock
authorized hereby differ.
(g) Conversion. Subject to required consent of the
Federal Communication Commission (the "FCC"), if any, the shares of
Class B Common Stock shall be convertible in whole or in part at any
time at the option of the holder
4
26
or holders thereof if such holder(s) is not a Regulated Entity (as
defined below) into an equal number of fully paid and non-assessable
shares of Class A Common Stock, for no additional consideration.
"Regulated Entity" means (i) any entity that is a "bank holding
company" (as defined in Section 2(a) of the Bank Holding Company Act
of 1956, as amended (the "BHC Act")) or any non-bank subsidiary of
such an entity and (ii) any entity, that pursuant to Section 8(a) of
the International Banking Act of 1978, as amended, is subject to the
provisions of the BHC Act or any non-bank subsidiary of such an
entity. At the time of any such conversion or, in the event such
conversion requires the consent of the FCC, at the time the FCC order
approving such a conversion becomes a final order, the holder or
holders of Class B Common Stock shall deliver to the office of the
Corporation or any transfer agent for the Common Stock the certificate
or certificates representing the shares of Class B Common Stock to be
converted, duly endorsed in blank or accompanied by duly executed
proper instruments of transfer, and written notice to the Corporation
stating that such holder or holders elect(s) to convert such share or
shares and stating the name and addresses in which each certificate
for shares of Class A Common Stock issued upon such conversion is to
be issued. Conversion shall be deemed to have been effected at the
time and date when such delivery is made to the Corporation or the
transfer agent of the shares to be converted, and the person
exercising such voluntary conversion shall be deemed to be the holder
of record of the number of shares of Class A Common Stock issuable
upon such conversion at such time. As promptly as practicable
following any holder's conversion of shares of Class B Common Stock,
the Corporation shall issue and deliver to the converting holder or to
such holder's transferee, as the case may be, one or more certificates
(as such holder may request) evidencing the shares of Class A Common
Stock issuable in respect of the applicable conversion and if the
certificates surrendered by the converting holder evidence more shares
of Class B Common Stock than the holder has elected to convert, one or
more certificates (as such holder may request) evidencing the shares
of Class B Common Stock which have not been converted. Pending the
issuance and delivery of the foregoing certificates, the certificate
or certificates evidencing the shares of Class B Common Stock that
have been surrendered for conversion shall be deemed to evidence the
shares of Class A Common Stock issuable upon such conversion. Any
dividends declared and not paid on shares of Class B Common Stock
prior to their conversion as provided above shall be paid, on the
payment date, to the holder or holders entitled thereto on the record
date for such dividend payment, notwithstanding such conversion;
provided, however, that such holder or holders shall not be entitled
to receive the corresponding dividends declared but not paid on the
shares of Class A Common Stock issuable upon such conversion. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Class A Common Stock, solely for the
purpose of effecting the conversions provided for herein, such number
of shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversions provided for herein and shall
take all such corporate action as may be necessary to assure that such
shares of Class A Common Stock shall be validly issued, fully paid and
non-assessable upon conversion of all of the outstanding shares
5
27
of Class B Common Stock; moreover, if at any time the number of
authorized but unissued shares of Class A Common Stock shall not be
sufficient to effect the conversions provided for herein, the
Corporation shall take such corporate action as may be necessary to
increase its authorized but unissued shares of Class A Common Stock to
such number of shares as shall be sufficient for such purpose.
(h) Transferability. Notwithstanding any other
provision contained in this Certificate of Incorporation, if a holder
of the Class B Common Stock is a Regulated Entity, such holder may
transfer the Class B Common Stock only under the following
circumstances: (i) in a widely distributed public offering; (ii) in a
transfer pursuant to Rule 144 under the Securities Act of 1933 or any
similar rule then in force; (iii) in a transfer constituting two
percent or less of the outstanding shares of the Class B Common Stock;
(iv) in a transfer to a person if such person already owns or has
negotiated to purchase at least a majority of the Class A Common
Stock; (v) in a transfer to the Corporation; (vi) in a transfer to an
Affiliate of such holder or to any other Regulated Entity; or (vii) in
any method of transfer permitted by the Board of Governors of the
Federal Reserve System.
IN WITNESS WHEREOF, CAPSTAR BROADCASTING PARTNERS, INC. has caused
this Certificate of Correction to be executed by its duly authorized officer
this 6th day of May, 1997.
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ R. STEVEN HICKS
--------------------------------
R. Steven Hicks
President
6