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EXHIBIT 3.62
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"TREFOIL COMMUNICATIONS, INC.", FILED IN THIS OFFICE ON THE FOURTEENTH DAY OF
FEBRUARY, A.D. 1994, AT 2 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386053
DATE: 11-04-98
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RESTATED
CERTIFICATE OF INCORPORATION
OF
TREFOIL COMMUNICATIONS, INC.
Trefoil Communications, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Trefoil Communications, Inc. Trefoil
Communications, Inc. was originally incorporated under the name Shamrock
Holdings, Inc. and the original Certificate of Incorporation of the corporation
was filed with the Secretary of State of the State of Delaware on April 12,
1978.
2. This Restated Certificate of Incorporation was duly adopted pursuant
to Section 245 of the General Corporation Law of the State of Delaware.
3. This Restated Certificate of Incorporation only restates and
integrates the provisions of the Certificate of Incorporation of this
corporation and does not further amend the provisions of the corporation's
Certificate of Incorporation as theretofore amended or supplemented. There is no
discrepancy between the provisions of the corporation's Certificate of
Incorporation and those of the Restated Certificate of Incorporation.
4. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated to read in its entirety as follows:
FIRST: The name of the corporation is Trefoil Communications, Inc.
SECOND: The registered office of the corporation in the State of
Delaware is located at Corporate Trust Center, 1209 Orange Street, in the City
of Wilmington (19801), County of New Castle. The registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: This Corporation is authorized to issue two classes of shares
designated, respectively, "Common Stock" and "Preferred Stock." The number of
shares of Common Stock authorized to be issued is 50,000 and the number of
shares of Preferred Stock authorized to be issued is 100,000, all of which shall
have a par value of $.10 per share. Subject to Section 6 of this Article
FOURTH, the Preferred Stock shall be divided initially into (a) 70,000 shares of
Series A Cumulative Convertible Preferred Stock (the "Series A Preferred Stock")
with the voting rights, preferences and relative, participating, optional and
other special rights of the shares of such series, and the restrictions thereof,
set forth below in
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Article FOURTH Part A, and (b) 30,000 shares of Preferred Stock with the rights,
preferences, privileges and restrictions thereof, as set forth in Article FOURTH
Part B.
A. SERIES A PREFERRED STOCK
Section 1. Initial Purchase Price.
The Series A Preferred Stock shall have an initial purchase price of
$1000 per share (the "Initial Purchase Price"). The Series A Preferred Stock
shall rank prior to the Common Stock with respect to dividend rights and rights
on liquidation, dissolution or winding up.
Section 2. Dividends and Distributions.
a. The holders of shares of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors or a
duly authorized committee thereof (the "Board of Directors"), out of the assets
of the Corporation legally available therefor, cumulative cash dividends at an
annual rate of 7.50% from and after the Issue Date (as defined in Section 11
hereof) as long as the shares of Series A Preferred Stock remain outstanding.
Dividends shall be computed on the basis of the Initial Purchase Price, and
shall accrue and be payable quarterly, in arrears, on the last Business Day as
defined in Section 11 hereof 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 Issue
Date. If dividends payable on the Series A Preferred Stock shall be in arrears
and not paid on the Quarterly Dividend Payment Date, whether or not by reason of
the absence of legally available funds therefor, the holders of the Series A
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, additional dividends on accumulations of accrued but unpaid
dividends compounded quarterly at a rate of 8.625% per annum, from such
Quarterly Dividend Payment Date through the date of payment of such arrearages.
b. Dividends payable pursuant to paragraph (a) of this Section 2
shall begin to accrue and be cumulative from the Issue Date, whether or not
earned or declared. The amount of dividends so payable shall be determined on
the basis of twelve 30-day months and a 360-day year. 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 record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend on any
Quarterly Dividend Payment Date shall be fifteen days prior to such Quarterly
Dividend Payment Date unless the Board of Directors determines otherwise, in
which case the Board of Directors may fix another record date, which record date
shall be no more than sixty days prior to the date fixed for the payment
thereof. Dividends in arrears may be declared by the Board of Directors and paid
on any date fixed by the Board of Directors, whether or not a Quarterly Dividend
Payment Date, to the holders of record of the shares of Series A Preferred
Stock, as they appear on the stock register of the
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Corporation on such record date, which shall be no more than sixty days prior to
the payment date therefor, as shall be fixed by the Board of Directors.
c. In the event that the Corporation shall have failed to redeem
shares of Series A Preferred Stock pursuant to Section 5(b) hereof, whether or
not by reason of the absence of legally available funds, the dividend rate on
all outstanding shares of Series A Preferred Stock which were to have been
redeemed shall be 9.375% per annum (compounded quarterly, with respect to
dividends in arrears on and after the date of failure to redeem through the date
of redemption, at a rate of 10.78% per annum) from the date of failure to redeem
through the date of redemption.
d. The holders of shares of Series A Preferred Stock shall not be
entitled to receive any dividends or other distributions except as provided
herein.
Section 3. Voting Rights. In addition to any voting rights provided by
law, the holders of shares of Series A Preferred Stock shall have the following
voting rights:
a. Except as otherwise provided in paragraph (c) of this Section
3, and in addition to voting rights provided elsewhere in this Section 3, and as
long as any of the Series A Preferred Stock is outstanding, each share of Series
A Preferred Stock shall entitle the holder thereof to vote on all matters voted
on by holders of Common Stock voting together as a single class with other
shares entitled to vote at all meetings of the shareholders of the Corporation.
With respect to any such vote, each share of Series A Preferred Stock shall
entitle the holder thereof to cast the number of votes equal to the number of
votes which could be cast in such vote by a holder of the shares of capital
stock of the Corporation into which such share of Series A Preferred Stock is
convertible on the record date for such vote; provided, however, that if more
than one share of Series A Preferred Stock shall be held by any holder of shares
of Series A Preferred Stock, the total number of votes which such holder shall
be entitled to cast pursuant to this Section 3(a) shall be computed on the basis
of conversion of the total number of shares of Series A Preferred Stock held by
such holder, with any then remaining fractional share disregarded for the
purposes of this Section 3(a).
b. In addition to the voting rights provided elsewhere in this
Section 3:
The affirmative vote of the holders of at least a majority of the
outstanding shares of Series A Preferred Stock, voting separately as a single
series, shall be necessary to (A) authorize an increase in the authorized number
of shares of, or issue (including on conversion or exchange of any convertible
or exchangeable securities or by reclassification), any shares of any class or
classes, or any series of any class or classes, of the Corporation's capital
stock ranking pari passu with or prior to (either as to dividends or upon
voluntary or involuntary liquidation, dissolution or winding up) the Series A
Preferred Stock; (B) increase the authorized number of shares of, or issue
(including on conversion or exchange of any convertible or exchangeable
securities or by reclassification) any shares of, Series A Preferred Stock; (C)
authorize, adopt or approve any alteration, amendment or repeal of any provision
of the Certificate of Incorporation of the Corporation including any such
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alteration, amendment or repeal effected by any merger or other business
combination in which the Corporation is the surviving or resulting corporation;
(D) sell, assign, lease, convey or otherwise dispose of all or substantially all
of the assets of the Corporation in one transaction or a series of related
transactions; (E) except for the Merger of Malrite Communications Group, Inc.
into the Corporation (the "Merger"), engage in or consummate any reorganization,
consolidation, recapitalization, liquidation, dissolution or winding up of the
Corporation or any merger of the Corporation with or into any other corporation;
or (F) take any other corporate action, which adversely affects the powers,
preferences or rights of the Series A Preferred Stock.
c. As long as shares of Series A Preferred Stock having an
aggregate Initial Purchase Price of at least $25,000,000 are issued and
outstanding, and subject to the provisions of Section 3(f) hereof, the
authorized number of directors of the Corporation shall be seven, of which the
holders of the outstanding shares of Series A Preferred Stock, voting separately
as a single series, shall be entitled to elect three directors, and the holders
of the outstanding shares of Common Stock voting separately as a class shall be
entitled to elect the remaining four directors, subject to any rights in the
terms of any series of Preferred Stock created pursuant to Article FOURTH Part B
to increase the size of the Board of Directors and to elect up to a specified
number of additional directors.
d. (1) The rights of holders of shares of Series A Preferred Stock
to take any actions as provided in this Section 3 may be exercised, subject to
the DGCL (as defined in Section 11 hereof), at any annual meeting of
shareholders or at a special meeting of shareholders held for such purpose as
hereinafter provided or at any adjournment or postponement thereof, or by the
written consent, delivered to the Secretary of the Corporation, of the holders
of the minimum number of shares required to take such action.
As long as such right to vote continues (and unless such
right has been exercised by written consent of the minimum number of shares
required to take such action), the Chairman of the Board of the Corporation may
call, and upon the written request of holders of record of 20% of the
outstanding shares of Series A Preferred Stock, addressed to the Secretary of
the Corporation at the principal office of the Corporation, shall call, a
special meeting of the holders of shares entitled to vote as provided herein.
The Corporation shall use its best efforts to hold such meeting within
thirty-five, but in any event not later than sixty, days after delivery of such
request to the Secretary of the Corporation, at the place and upon the notice
provided by law and in the By-laws of the Corporation for the holding of
meetings of shareholders.
(2) At each meeting of shareholders at which the holders of
shares of Series A Preferred Stock shall have the right, voting separately as a
single series, to elect directors of the Corporation as provided in this Section
3 or to take any action, the presence in person or by proxy of the holders of
record of a majority of the total number of shares of Series A Preferred Stock
then outstanding and entitled to vote on the matter shall be necessary and
sufficient to constitute a quorum. At any such meeting or at any adjournment or
postponement thereof:
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(A) the absence of a quorum of the holders of shares of
Series A Preferred Stock shall not prevent the election of directors other than
those to be elected by the holders of shares of Series A Preferred Stock and the
absence of a quorum of the holders of shares of any other class or series of
capital stock shall not prevent the election of directors to be elected by the
holders of shares of Series A Preferred Stock or the taking of any action by the
holders of Series A Preferred Stock as provided in this Section 3; and
(B) in the absence of a quorum of the holders of shares of
Series A Preferred Stock, holders of a majority of such shares present in person
or by proxy shall have the power to adjourn the meeting as to the actions to be
taken by the holders of shares of Series A Preferred Stock from time to time and
place to place without notice other than announcement at the meeting until a
quorum shall be present.
For the taking of any action as provided in paragraphs
(b), (c) and (e) of this Section 3 by the holders of shares of Series A
Preferred Stock each such holder shall have one vote for each share of Series A
Preferred Stock standing in his name on the transfer books of the Corporation as
of any record date fixed for such purpose or, if no such date be fixed, at the
close of business on the Business Day next preceding the day on which notice is
given, or if notice is waived, at the close of business on the Business Day next
preceding the day on which the meeting is held.
Each director elected by the holders of shares of Series A
Preferred Stock pursuant to paragraph (c) of this Section 3 shall, unless his
term shall expire earlier, hold office until the annual meeting of shareholders
next succeeding his election or until his successor, if any, is elected and
qualified.
In case any vacancy shall occur among the directors
elected by the holders of shares of Series A Preferred Stock pursuant to
paragraph (c) of this Section 3, such vacancy may be filled for the unexpired
portion of the term, to the extent permitted by the DGCL, by the Board, provided
such Board action must include the affirmative vote of a majority of the
remaining directors theretofore elected by such holders (if there is a remaining
director) (or such directors' successors in office) in favor of the election of
the person filling such vacancy. If any such vacancy is not so filled within
twenty days after the creation thereof or if all of the directors so elected by
the holders of Series A Preferred Stock shall cease to serve as directors before
their terms shall expire, the holders of the Series A Preferred Stock then
outstanding and entitled to vote for such directors may, by written consent as
herein provided, or at a special meeting of such holders called as provided
herein, elect successors to hold office for the unexpired terms of the directors
whose places shall be vacant.
In case any vacancy shall occur among the directors
elected by the holders of Common Stock pursuant to paragraph (e) of this Section
3, such vacancy may be filled for the unexpired portion of the term, to the
extent permitted by the DGCL, by the Board, provided such Board action must
include the affirmative vote of a majority of the remaining directors
theretofore elected by such holders (if there is a remaining director) (or
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such directors' successors in office) in favor of the election of the person
filling such vacancy. If any such vacancy is not so filled within twenty days
after the creation thereof or if all of the directors so elected by the holders
of Common Stock shall cease to serve as directors before their terms shall
expire, the holders of the Common Stock then outstanding and entitled to vote
for such directors may, by written consent in accordance with DGCL or at a
special meeting of such holders called as provided in DGCL and the Bylaws of the
Corporation, elect successors to hold office for the unexpired terms of the
directors whose places shall be vacant.
To the extent permitted by the DGCL, any Series A
Director may be removed from office with or without cause by the vote or written
consent of the holders of at least a majority of the outstanding shares of
Series A Preferred Stock, voting separately as a single series. A special
meeting of the holders of shares of Series A Preferred Stock may be called in
accordance with the procedures set forth in subparagraph (d)(1) of this Section
3.
e. In addition to the voting rights provided elsewhere in this
Section 3 and in addition to any board approval or any shareholder approval
requirements set forth in the Certificate of Incorporation or Bylaws, as
amended, of the Corporation or as otherwise required by law, and as long as
shares of Series A Preferred Stock having an aggregate Initial Purchase Price of
at least $25,000,000 are issued and outstanding, and subject to the provisions
of Section 3(f) hereof, the affirmative vote of the holders of at least a
majority of the outstanding shares of Series A Preferred Stock, in person or by
proxy, at an annual meeting of shareholders or at a special meeting of
shareholders held for such purpose as provided above in Section 3(d), or the
written consent, delivered to the Secretary of the Corporation, of the holders
of at least a majority of the outstanding shares of Series A Preferred Stock,
shall be necessary to approve the following:
(1) engaging in any business other than the radio broadcasting
business,
(2) any purchase, redemption or other acquisition by the
Corporation or any of its Subsidiaries of any shares of capital stock of the
Corporation or any of its Subsidiaries (other than wholly-owned Subsidiaries of
the Corporation), except (w) as required pursuant to any employment agreement,
stock option plan or restricted stock plan for employees of the Corporation or
its Subsidiaries approved in accordance herewith, (x) with respect to any
redemption or conversion of shares of Series A Preferred Stock pursuant to
Sections 5 or 8 hereof, (y) pursuant to the terms of the Merger Consideration
Agreement, dated as of the Issue Date (the "Merger Consideration Agreement"),
between the Corporation and Milton Maltz ("Maltz"), or the Stockholder
Agreement, dated the Issue Date, between Maltz, Trefoil, the then holders of
Common Stock of the Corporation, and the Corporation (the "Stockholders
Agreement") and (z) pursuant to the terms of the Notes or any Approved Security;
it being understood that the payment by the Corporation of cash in lieu of
fractional shares upon exercise of the Warrants in accordance with their terms
shall not be deemed to be an acquisition of capital stock for any purpose of
this Certificate.
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(3) except as expressly permitted by paragraph (4) below,
any material alteration, amendment or modification of the Credit Agreement, or
any material alteration, amendment or modification of, a Replacement Facility,
if such alteration, amendment or modification is to increase the interest rate,
lengthen the term, increase the maximum commitment or make any other changes
that materially and adversely affect the holders of Preferred Stock,
(4) any incurrence of indebtedness for borrowed money by
the Corporation or any of its Subsidiaries, except (A) pursuant to the Credit
Agreement, dated as of the Issue Date, by and among the Corporation and/or any
of its Subsidiaries, and the Lenders listed therein, and The Bank of New York,
as Agent and related loan documents (including guaranties) (collectively, the
"Credit Agreement") or any credit agreements evidencing any amendment,
extension, renewal, refunding or refinancing thereof and related guaranties
(collectively, a "Replacement Facility") in an amount not in excess of the
maximum amount of the Credit Agreement; (B) to permit the Corporation to fulfill
its mandatory redemption obligations pursuant to Section 5(b) hereof and
pursuant to the Notes (as defined in Section 11 hereof) on any specified
redemption date, provided that the indebtedness referred to in this clause (B)
is limited to the amount necessary for, and used by the Corporation solely for
the purpose of fulfilling such mandatory redemption obligation on such date, and
is incurred not more than thirty days prior to such date; (C) indebtedness owed
to the Corporation or a wholly-owned subsidiary of the Corporation; (D)
obligations of Malrite assumed in the Merger; (E) Interest Rate Protection
Arrangements with the Lenders under the Credit Agreement and (F) other
indebtedness for borrowed money, not described in (A), (B), (C), (D) or (E)
above and not in excess of $25,000,000 principal amount outstanding in aggregate
at any one time,
(5) other than by virtue of the Merger, any assumption or
guaranty by the Corporation or any of its Subsidiaries of the indebtedness of
any Person (other than the Company and its Subsidiaries) not approved pursuant
to this Section 3(e), in an aggregate principal amount at any one time
outstanding in excess of $1,000,000 for all such Persons (other than the
Company and its Subsidiaries),
(6) any payment to or other transaction with any Affiliate
of the Corporation or any of its Subsidiaries other than (A) in an amount not in
excess of $500,000 in the aggregate for all such payments or transactions in any
twelve month period following the Issue Date or (B) pursuant to the terms of any
agreement entered into on or prior to the Issue Date or any security issued on
or prior to the Issue Date,
(7) any declaration of or payment of any cash dividend or
other property distribution (other than a dividend payable in shares of Common
Stock) with respect to any shares of stock of the Corporation ranking junior to
the Series A Preferred Stock as to the payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up,
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(8) other than by virtue of the Merger, the entry into,
adoption, amendment or termination by the Corporation or any of its Subsidiaries
of any bonus, profitsharing, pension or other employee benefit or special
compensation plans or programs (other than (i) such amendments thereto as
required by law, to the minimum extent so required by law, (ii) any broad-based
plans not limited to executive officers or senior management and (iii) plans not
involving more than $100,000 individually) by the Corporation or any of its
Subsidiaries,
(9) any issuance of any equity securities of the
Corporation or any of its Subsidiaries (including, without limitation, any
securities convertible into, or options with respect to, or warrants to purchase
or rights to subscribe to, any such equity securities) other than an issuance of
equity securities to the Corporation or a wholly-owned Subsidiary of the
Corporation or pursuant to (A) any employment agreement, stock option plan or
restricted stock plan for employees of the Corporation or its Subsidiaries
approved by the Board of Directors that, when aggregated with all other such
plans subject to this exception does not involve the issuance of more than
10% of the outstanding stock of the Corporation at the time of adoption, (B) the
Warrants, (C) the Notes, (D) the terms of the Series A Preferred Stock or of any
Approved Security, or (E) the Merger,
(10) other than with respect to the disposition of radio
stations KUDL-FM and WHB-AM or otherwise specifically permitted under paragraphs
(3), (4) or (5) of this Section 3(e), any entry into, early termination of, or
material amendment to or modification of, any material contract or agreement
(other than (i) agreements entered into on the Issue Date, (ii) agreements or
series of related agreements, providing for payments by or to the Corporation or
its Subsidiaries not in excess of $2,000,000 individually or (iii) agreements
with music licensing entities (such as ASCAP, BMI and SESAC), agreements for the
provision of market research services and agreements with rating agencies) to
which the Corporation or any of its Subsidiaries is a party, (it being
understood that the Merger shall not be deemed to be the entering into by the
Company of the agreements of Malrite for purposes of this paragraph 10),
(11) any alteration, amendment or repeal of any provisions
of the Bylaws,
(12) other than (i) the disposition of radio stations
KUDL-FM and WHB-AM, (ii) the Merger or (iii) transfers to the Corporation or any
wholly-owned Subsidiary of the Corporation, any acquisition or disposition of
any license to operate an AM or FM radio broadcast station, or all or
substantially all of the assets of such a station.
f. Notwithstanding the foregoing, (i) holders of shares of Series
A Preferred Stock shall not be entitled to exercise the rights granted to them
pursuant to paragraph (c) of this Section 3, and (ii) the requirement to obtain
the affirmative vote or consent of the holders of at least a majority of the
outstanding shares of Series A Preferred Stock as set forth in paragraph (e) of
this Section 3 shall terminate, if less than a majority of the then outstanding
shares of Series A Preferred Stock are owned, beneficially or of record,
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by Trefoil (or any successor thereto which Trefoil has advised the Corporation
in writing is a successor controlled at that time, directly or indirectly, by
the persons who were officers or directors of SCA on the Issue Date).
Section 4. Certain Restrictions.
a. The Corporation may not declare or pay any dividend or make any
distribution of assets (other than dividends paid or other distributions made in
stock of the Corporation ranking junior to the Series A Preferred Stock as to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up) on, or redeem, purchase or otherwise acquire (except
upon conversion or exchange for stock of the Corporation ranking junior to the
Series A Preferred Stock as to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up or except (x) pursuant to the
terms of the Merger Consideration Agreement and (y) pursuant to the terms of the
Notes or any Approved Security), shares of Common Stock or of any other stock of
the Corporation ranking junior to the Series A Preferred Stock as to the payment
of dividends or the distribution of assets upon liquidation, dissolution or
winding up, unless all accrued and unpaid dividends on the Series A Preferred
Stock for all prior full quarterly dividend periods have been or
contemporaneously are declared and paid.
b. Whenever all accrued dividends on the Series A Preferred
Stock are not paid in full through the most recent Quarterly Dividend Payment
Date, the Corporation may not declare or pay dividends or make any distribution
of assets (other than dividends paid or other distributions made in stock of the
Corporation ranking junior to the Series A Preferred Stock as to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up) on any other stock of the Corporation ranking on a parity with the
Series A Preferred Stock as to the payment of dividends unless (i) all accrued
and unpaid dividends on the Series A Preferred Stock for all prior dividend
periods are contemporaneously declared and paid or (ii) all dividends declared
and paid or set apart for payment or other distributions made on the Series A
Preferred Stock and any other stock of the Corporation ranking on a parity with
the Series A Preferred Stock as to the payment of dividends are declared and
paid or set apart for payment or made pro rata so that the amount of dividends
declared and paid or set apart for payment or other distributions made per share
on the Series A Preferred Stock and such other stock of the Corporation will
bear the same ratio that accrued and unpaid dividends per share on the Series A
Preferred Stock and such other stock of the Corporation bear to each other.
Whenever all accrued dividends on the Series A Preferred Stock
are not paid in full through the most recent Quarterly Dividend Payment Date,
the Corporation may not redeem, purchase or otherwise acquire (except upon
conversion or exchange for stock of the Corporation ranking junior to the Series
A Preferred Stock as to the payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up) other stock of the Corporation
ranking on a parity with the Series A Preferred Stock as to the payment of
dividends or the distribution of assets upon liquidation, dissolution or winding
up unless (i) all outstanding shares of the Series A Preferred Stock are
contemporaneously redeemed or (ii) a
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pro rata redemption is made of shares of Series A Preferred Stock and such other
stock of the Corporation, with the amount allocable to each series of such stock
determined on the basis of the aggregate liquidation preference of the
outstanding shares of each series and the shares of each series being redeemed
only on a pro rata basis.
c. The Corporation shall not permit any Subsidiary (as defined in
Section 11 hereof) of the Corporation to purchase or otherwise acquire for
consideration any shares of capital stock of the Corporation unless the
Corporation could, pursuant to paragraphs (a) or (b) of this Section 4, purchase
such shares at such time and in such manner.
Section 5. Redemption.
a. The Corporation shall not have any right to redeem any shares
of Series A Preferred Stock prior to the third anniversary of the Issue Date. On
and after such date, the Corporation shall have the right, at its sole option
and election made in accordance with paragraphs (d) and (e) of this Section 5,
to redeem, out of funds legally available therefor, shares of Series A Preferred
Stock, in whole or in part, in integral multiples having an aggregate Initial
Purchase Price of at least $7,000,000 (unless a lesser number is then
outstanding), at any time and from time to time, at a redemption price equal to
the Initial Purchase Price, plus an amount per share equal to all accrued and
unpaid dividends payable in cash, whether or not declared, to the date of
redemption (the "Redemption Price"); provided, however, that the Corporation
shall not have any such right unless (A) all quarterly dividends then payable on
shares of Series A Preferred Stock pursuant to Section 2 hereof shall have been
paid in full, (B) there has been consummated an underwritten public offering of
the Common Stock registered under the Securities Act of 1933, as amended, and
the Common Stock is traded on a national securities exchange or the NASDAQ
System, (C) the Current Market Price of the Common Stock is equal to at least
165% of the Conversion Price (as defined in Section 11 hereof) for at least
twenty out of thirty consecutive Trading Days (as defined in Section 8(a)
hereof), (D) at all times from the commencement of such thirty Trading Day
period to the date fixed for redemption, the conversion by the holders of all
shares of Series A Preferred Stock being redeemed would not cause the
Corporation to be in violation of the Federal Communications Act of 1934, as
amended (the "Communications Act") and the rules and policies of the Federal
Communications Commission thereunder, or any similar or successor laws, rules,
regulations or policies, and (E) the Corporation shall have furnished the
holders of the Series A Preferred Stock an officer's certificate confirming the
satisfaction of clause (D) above.
b. On each anniversary of the Issue Date (or, if such date is not
a Business Day, then on the next succeeding Business Day) occurring in the years
set forth below, (as long as any shares of Series A Preferred Stock remain
outstanding), the Corporation shall redeem, out of funds legally available
therefor, the number of shares set forth below (or, if fewer than said number
of shares of Series A Preferred Stock are then outstanding, the number of shares
then outstanding) by paying therefor in cash the Redemption Price.
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Anniversary of Issue Number of Shares
Date occurring in to be Redeemed
- -------------------- ----------------
2003 14,000
2004 28,000
2005 Any and all then outstanding
shares of Series A Preferred Stock
The number of shares of Series A Preferred Stock to be redeemed by
the Corporation on any date fixed for redemption pursuant to its mandatory
redemption obligation as set forth in this paragraph (b) of Section 5 shall be
reduced by the number of shares, if any, of Series A Preferred Stock redeemed by
the Corporation, at its sole option and election, pursuant to Section 5(a)
hereof or repurchased by the Corporation, prior to such date fixed for
redemption, and the number of shares, if any, of Series A Preferred Stock
converted by the holders thereof prior to such date fixed for redemption, in
each case to the extent such number of shares has not previously been credited
against any mandatory redemption obligation of the Corporation pursuant to this
Section 5(b).
c. If less than all shares of Series A Preferred Stock at the time
outstanding are to be redeemed, the shares to be redeemed shall be selected pro
rata.
d. Notice of any redemption of shares of Series A Preferred Stock
pursuant to paragraph (a) or (b) of this Section 5 shall be mailed at least
twenty, but not more than seventy-five, days prior to the date fixed for
redemption to each holder of shares of Series A Preferred Stock to be redeemed,
at such holder's address as it appears on the transfer books of the Corporation.
In order to facilitate the redemption of shares of Series A Preferred Stock, the
Board of Directors may fix a record date for the determination of Series A
Preferred Stock to be redeemed not more than seventy-five days or less than
twenty days prior to the date fixed for such redemption.
e. On the date of any redemption being made pursuant to paragraph
(a) or (b) of this Section 5 which is specified in a notice given pursuant to
paragraph (d) of this Section 5, the Corporation shall, and at any time after
such notice shall have been mailed and before the date of redemption the
Corporation may, deposit for the benefit of the holders of shares of Series A
Preferred Stock to be redeemed the funds necessary for such redemption,
including the amount necessary to pay all accrued and unpaid dividends to the
date of redemption, with a bank or trust company in the City of Los Angeles,
California or the City of New York, New York having a capital and surplus of at
least $1,000,000,000. Any moneys so deposited by the Corporation and unclaimed
at the end of one year from the date designated for such redemption shall revert
to the general funds of the Corporation. After such reversion, any such bank or
trust company shall, upon demand, pay over to the Corporation such unclaimed
amounts and thereupon such bank or trust company shall be relieved of all
responsibility in respect thereof and any holder of shares of Series A Preferred
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Stock to be redeemed shall look only to the Corporation for the payment of the
Redemption Price. In the event that moneys are deposited pursuant to this
paragraph (e) in respect of shares of Series A Preferred Stock that are
converted in accordance with the provisions of Section 8, such moneys shall,
upon such conversion, revert to the general funds of the Corporation and, upon
demand, such bank or trust company shall pay over to the Corporation such moneys
and shall be relieved of all responsibility to the holders of such converted
shares in respect thereof. Any interest accrued on funds deposited pursuant to
this paragraph (e) shall be paid from time to time to the Corporation for its
own account.
f. Notice of redemption having been given as aforesaid, upon the
deposit of funds pursuant to paragraph (e) in respect of shares of Series A
Preferred Stock to be redeemed pursuant to paragraph (a) or (b) of this Section
5, notwithstanding that any certificates for such shares shall not have been
surrendered for cancellation, from and after the date of redemption designated
in the notice of redemption the shares represented thereby shall no longer be
deemed outstanding, and all rights of the holders of Series A Preferred Stock
shall cease, including (i) the rights to receive dividends thereon shall cease
to accrue, and (ii) all rights of the holders of shares of Series A Preferred
Stock to be redeemed shall cease and terminate, excepting only the right to
receive the Redemption Price therefor, and the right to convert such shares into
shares of Common Stock until the close of business on the Business Day prior to
the date of redemption, in accordance with Section 8 hereof.
Section 6. Reacquired Shares. Any shares of Series A Preferred Stock
converted, redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall not be reissued and shall be retired and cancelled
promptly after the acquisition thereof. All such shares of Series A Preferred
Stock shall upon their cancellation, in accordance with the DGCL, become
authorized but unissued shares of Preferred Stock of the Corporation and may be
reissued as part of another series of Preferred Stock of the Corporation,
subject to the conditions or restrictions on issuance set forth herein.
Section 7. Liquidation, Dissolution or Winding Up.
a. Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Series A Preferred Stock shall be entitled to receive and to be paid out of the
assets of the Corporation available for distribution to its stockholders (after
any payment or distribution on any stock of the Corporation ranking senior to
the Series A Preferred Stock as to the distribution of assets upon liquidation,
dissolution or winding up and before any payment or distribution on the Common
Stock or any other stock of the Corporation ranking junior to the Series A
Preferred Stock as to the distribution of assets upon liquidation, dissolution
or winding up) a liquidation distribution in the amount of the Liquidation
Preference (as defined in Section 11 hereof).
In the event the assets of the Corporation available for
distribution to the holders of the shares of Series A Preferred Stock upon any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled as provided above, no such distribution shall be
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made on account of any other stock of the Corporation ranking on a parity with
the Series A Preferred Stock as to the distribution of assets upon such
liquidation, dissolution or winding up unless a pro rata distribution is made on
the Series A Preferred Stock and such other stock of the Corporation, with the
amount allocable to each series of such stock determined on the basis of the
aggregate liquidation preference of the outstanding shares of each series and
distributions to the shares of each series being made on a pro rata basis.
b. Neither the sale of all or substantially all of the property or
business of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation, nor the merger or consolidation of any other
corporation into or with the Corporation shall constitute a liquidation,
dissolution or winding up, voluntary or involuntary, for the purposes of this
Section 7. After the payment to the holders of the shares of Series A Preferred
Stock of the Liquidation Preference, the holders of the shares of Preferred
Stock as such shall have no right or claim to any of the remaining assets of the
Corporation.
Section 8. Conversion
a. Subject to the provisions for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall be convertible at the option of the
holder thereof into fully paid and nonassessable shares of Common Stock. The
number of shares of Common Stock deliverable upon conversion of a share of
Series A Preferred Stock, adjusted as hereinafter provided, is referred to
herein as the "Conversion Ratio." The Conversion Ratio shall initially be
0.1219345 and the Conversion Price (defined as the Initial Purchase Price
divided by the Conversion Ratio) shall initially be $8201.12. The Conversion
Ratio and the Conversion Price are subject to adjustment from time to time
pursuant to paragraph (g) of this Section 8.
b. Conversion of the Series A Preferred Stock may be effected by
any holder thereof upon the surrender to the Corporation at the principal office
of the Corporation in the State of California or at the office of any agent or
agents of the Corporation, as may be designated by the Board of Directors (the
"Transfer Agent," which may be the Corporation), of the certificate for such
Series A Preferred Stock to be converted accompanied by a written notice stating
that such holder elects to convert all or a specified whole number of such
shares in accordance with the provisions of this Section 8 and specifying the
name or names in which such holder wishes the certificate or certificates for
shares of Common Stock to be issued. In case such notice shall specify a name or
names other than that of such holder, such notice shall be accompanied by
payment of all transfer taxes payable upon the issuance of shares of Common
Stock in such name or names. Other than such taxes, the Corporation will pay any
and all issue and other taxes (other than taxes based on income) that may be
payable in respect of any issue or delivery of shares of Common Stock on
conversion of Series A Preferred Stock pursuant hereto. As promptly as
practicable, after the surrender of such certificate or certificates and the
receipt of such notice relating thereto and, if applicable, payment of all
transfer taxes (or the demonstration to the satisfaction of the Corporation that
such taxes have been paid), the Corporation shall deliver or cause to be
delivered (i) certificates representing the number of validly issued, fully paid
and nonassessable full shares of Common Stock to which the holder of shares of
Series A Preferred Stock being converted shall be entitled and
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(ii) if less than the full number of shares of Series A Preferred Stock
evidenced by the surrendered certificate or certificates is being converted, a
new certificate or certificates, of like tenor, for the number of shares
evidenced by such surrendered certificate or certificates less the number of
shares being converted. Such conversion shall be deemed to have been made at the
close of business on the date of giving such notice and of such surrender of the
certificate or certificates representing the shares of Series A Preferred Stock
to be converted so that the rights of the holder thereof as to the shares being
converted shall cease except for the right to receive shares of Common Stock in
accordance herewith, and the person entitled to receive the shares of Common
Stock shall be treated for all purposes as having become the record holder of
such shares of Common Stock at such time. The Corporation shall not be required
to convert, and no surrender of shares of Series A Preferred Stock shall be
effective for that purpose, while the transfer books of the Corporation for the
Common Stock are closed for any purpose (but not for any period in excess of
five days); but the surrender of shares of Series A Preferred Stock for
conversion during any period while such books are so closed shall become
effective for conversion immediately upon the reopening of such books, as if the
conversion had been made on the date such shares of Series A Preferred Stock
were surrendered, and at the Conversion Ratio in effect on the date of such
surrender.
c. In case any shares of Series A Preferred Stock are to be
redeemed pursuant to Section 5, such right of conversion shall cease and
terminate as to the shares of Series A Preferred Stock to be redeemed at the
close of business on the date fixed for redemption unless the Corporation shall
default in the payment of the Redemption Price.
d. The Conversion Ratio shall be subject to adjustment from time
to time in certain instances as hereinafter provided. Upon conversion, the
holder of shares of Series A Preferred Stock shall be entitled to receive an
amount equal to any accrued and unpaid dividends on the shares of Series A
Preferred Stock surrendered for conversion to the date of such conversion. Such
amount shall be payable by the Corporation in cash (to the extent funds are
legally available therefor and may be paid in compliance with the Credit
Agreement); provided, however, that if funds are not legally available for the
payment by the Corporation of any such amount accrued and unpaid dividends in
cash or such payment cannot be made in compliance with the Credit Agreement, the
holder of the shares of Series A Preferred Stock surrendered for conversion
shall receive payment in cash with respect to such amount promptly at such time
as the funds therefor are legally available and may be paid without breaching
the Credit Agreement.
e. In connection with the conversion of any shares of Series A
Preferred Stock, no fractions of shares of Common Stock shall be issued, but in
lieu thereof the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional interest multiplied by
the Current Market Price per share of Common Stock on the Trading Day on which
such shares of Series A Preferred Stock are deemed to have been converted. If
more than one share of Series A Preferred Stock shall be surrendered for
conversion by the same holder at the same time, the number of full shares of
Common Stock issuable on conversion thereof shall be computed on the basis of
the total number of shares of Series A Preferred Stock so surrendered.
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f. The Corporation shall at all times reserve and keep available
for issuance upon the conversion of the Series A Preferred Stock, free from any
preemptive rights, such number of its authorized but unissued shares of Common
Stock as will from time to time be sufficient to permit the conversion of all
outstanding shares of Series A Preferred Stock, and shall take all action
required to increase the authorized number of shares of Common Stock if
necessary to permit the conversion of all outstanding shares of Series A
Preferred Stock.
g. The Conversion Ratio will be subject to adjustment from time to
time as follows:
(1) In case the Corporation shall at any time or from time
to time after the Issue Date (A) pay a dividend, or make a distribution, on the
outstanding shares of Common Stock in shares of Common Stock, (B) subdivide the
outstanding shares of Common Stock, (C) combine the outstanding shares of Common
Stock into a smaller number of shares or (D) issue by reclassification of the
shares of Common Stock any shares of capital stock of the Corporation, then, and
in each such case, the Conversion Ratio in effect immediately prior to such
event or the record date therefor, whichever is earlier, shall be adjusted so
that the holder of any shares of Series A Preferred Stock thereafter surrendered
for conversion shall be entitled to receive the number of shares of Common Stock
or other securities of the Corporation which such holder would have owned or
have been entitled to receive after the happening of any of the events described
above, had such shares of Series A Preferred Stock been surrendered for
conversion immediately prior to the happening of such event or the record date
therefor, whichever is earlier. An adjustment made pursuant to this clause (1)
shall become effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of shares of Common Stock entitled to receive such dividend or
distribution, or (y) in the case of such subdivision, reclassification or
combination, immediately after the close of business on the day upon which such
corporate action becomes effective. No adjustment shall be made pursuant to this
clause (1) in connection with any transaction to which paragraph (h) applies.
(2) In case the Corporation shall issue shares of Common
Stock or rights, warrants or other securities convertible into, exercisable or
exchangeable for shares of Common Stock ("Convertible Securities") after the
Issue Date for a consideration per share less than the Current Market Price, as
of the date the Company fixes the offering price of such shares or Convertible
Securities (the "Determination Date"), then, and in each such case, the
Conversion Ratio shall be adjusted so that the holder of each share of Series A
Preferred Stock shall be entitled to receive, upon the conversion thereof, the
number of shares of Common Stock determined by multiplying (A) the applicable
Conversion Ratio on the day immediately prior to the date of issuance of such
Common Stock or Convertible Securities by (B) a fraction, the numerator of which
shall be the sum of (1) the number of shares of Common Stock outstanding on such
date and (2) the number of additional shares of Common Stock issued (or the
number issuable upon conversion, exercise or exchange of the Convertible
Securities), and the denominator of which shall be the sum of (x) the number of
shares of Common Stock outstanding on such date and (y) the number of shares of
Common
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Stock which the aggregate consideration receivable by the Corporation for the
total number of shares of Common Stock so issued (or the number issuable upon
conversion, exercise or exchange of the Convertible Securities) would purchase
at the Current Market Price on the Determination Date. If shares of Common Stock
have been publicly traded for more than thirty Trading Days immediately
preceding the Determination Date, for purposes of this clause (2), the Current
Market Price as of the Determination Date shall in all instances be the average
of the Current Market Price of the Common Stock for any consecutive twenty
Trading Days selected by the Corporation commencing no earlier than thirty
Trading Days prior to the Determination Date.
An adjustment made pursuant to this clause (2) shall be
made on the next Business Day following the date on which any such issuance is
made and shall be effective retroactively immediately after the close of
business on such date. For purposes of this clause (2), (i) the aggregate
consideration receivable by the Corporation in connection with the issuance of
shares of Common Stock or Convertible Securities shall be deemed to be equal to
the sum of the aggregate offering price (before deduction of underwriting
discounts or commissions and expenses payable to third parties) of all such
Common Stock and Convertible Securities plus the minimum aggregate amount, if
any, payable upon exercise, conversion or exchange of any Convertible Securities
into shares of Common Stock, (ii) to the extent that the aggregate consideration
receivable consists of services or property other than cash, the value thereof
shall be the Fair Market Value thereof and (iii) from and after the time of the
issuance of Convertible Securities, but subject to the penultimate sentence of
this paragraph, the Corporation shall be deemed to have issued at the time of
the issuance of such Convertible Securities the maximum number of shares of
Common Stock issuable upon exercise, conversion or exchange of such Convertible
Securities. This clause (2) does not apply and no adjustment shall be made on
account of the issuance of any shares of Common Stock or Convertible Securities
by the Corporation pursuant to (a) a dividend or distribution on, or
subdivision, combination or reclassification of, the outstanding shares of
Common Stock requiring an adjustment in the Conversion Ratio pursuant to clause
(1) of this paragraph (g), (b) the terms of any Approved Security, (c) the
Warrants, (d) the Notes, (e) the terms of the Series A Preferred Stock, (f) the
terms of any stock option or employee benefit plan approved by the holders of
the Series A Preferred Stock, (g) any merger of any Person into the Corporation
or with a Subsidiary of the Corporation approved by the holders of the Series A
Preferred Stock, (h) an exchange approved by the holders of the Series A
Preferred Stock of Common Stock with the stockholders of any corporation
provided that such corporation thereupon becomes a Subsidiary of the
Corporation, (i) an exchange approved by the holders of the Series A Preferred
Stock of Common Stock for substantially all of the assets and business of any
Person, (j) a bona fide public offering pursuant to a firm commitment
underwriting or (k) issuances of any shares of Common Stock upon exercise,
conversion or exchange of Convertible Securities in accordance with their terms.
For purposes of the preceding sentence, "approved by the holders of the Series A
Preferred Stock" means approved by the affirmative vote of the holders of at
least a majority of the outstanding shares of Series A Preferred Stock, in
person or by proxy, at an annual meeting of shareholders or at a special meeting
of shareholders held for such purpose as provided in Section 3(d), or by written
consent delivered to the Secretary of the Corporation. Upon the expiration
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unexercised of any Convertible Securities for which an adjustment has been made
pursuant to this clause (2), the adjustments shall forthwith be reversed to
effect such rate of conversion as would have been in effect at the time of such
expiration or termination had such Convertible Securities, to the extent
outstanding immediately prior to such expiration or termination, never been
issued. No adjustment shall be made pursuant to this clause (2) in connection
with any transaction to which paragraph (h) applies.
(3) In case the Corporation shall at any time or from time
to time after the Issue Date distribute to all holders of shares of its Common
Stock, evidences of indebtedness or assets (other than regular cash dividends
and dividends paid out of Current Retained Earnings, as defined below) or any
rights or warrants to purchase evidences of indebtedness or assets at less than
the Fair Market Value thereof, other than dividends or distributions of shares
of Common Stock or Convertible Securities which are referred to in clause (1) of
this paragraph (g) or distributions of Convertible Securities which are referred
to in clause (2) of this paragraph (g), then the Conversion Ratio shall be
adjusted so that the holder of each share of Series A Preferred Stock shall be
entitled to receive, upon the conversion thereof, the number of shares of Common
Stock determined by multiplying (x) the applicable Conversion Ratio on the day
immediately prior to the record date fixed for the determination of shareholders
entitled to receive such distribution by (y) a fraction, the numerator of which
shall be the Current Market Price per share of Common Stock for a period of any
twenty consecutive Trading Days selected by the Corporation commencing no
earlier than thirty Trading Days preceding such record date, and the denominator
of which shall be such Current Market Price per share of Common Stock less the
Fair Market Value per share of Common Stock of such dividend or distribution. An
adjustment made pursuant to this clause (3) shall be made upon the opening of
business on the next Business Day following the date on which any such
distribution is made and shall be effective retroactively immediately after the
close of business on the record date fixed for the determination of shareholders
entitled to receive such distribution. No adjustment shall be made pursuant to
this clause (3) in connection with any transaction to which paragraph (h)
applies. Current Retained Earnings means consolidated retained earnings earned
in the four fiscal quarters immediately preceding the quarter in which the
dividend is paid to the extent such earnings have not previously been paid as
dividends.
(4) For purposes of this paragraph (g), the number of
shares of Common stock at any time outstanding shall not include any shares of
Common Stock then owned or held by or for the account of the Corporation or any
of its Subsidiaries.
(5) The term "dividend," as used in this paragraph (g)
shall mean a dividend or other distribution upon Common Stock of the
Corporation.
(6) Anything in this paragraph (g) to the contrary
notwithstanding, the Corporation shall not be required to give effect to any
adjustment in the Conversion Ratio unless and until the net effect of one or
more adjustments (each of which shall be carried forward), determined as above
provided, shall have resulted in a change of the Conversion Ratio by at least
one one-hundredth of one share of Common Stock, and when the cumulative
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net effect of more than one adjustment so determined shall be to change the
Conversion Ratio by at least one one-hundredth of one share of Common Stock,
such change in Conversion Ratio shall thereupon be given effect.
(7) The certificate of any firm of independent public
accountants of recognized standing selected by the Board of Directors of the
Corporation (which may be the firm of independent public accountants regularly
employed by the Corporation) shall be presumptively correct for any computation
made under this paragraph (g).
(8) If the Corporation shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the number of shares of Common
Stock issuable upon exercise of the right of conversion granted by this
paragraph (g) or in the Conversion Ratio then in effect shall be required by
reason of the taking of such record.
h. In case of any capital reorganization or reclassification of
outstanding shares of Common Stock (other than a reclassification covered by
paragraph (g)(1) of this Section 8), or in case of any merger of the Corporation
with or into another corporation other than the Merger, or in case of any sale
or conveyance to another corporation of all or substantially all of the assets
or property of the Corporation (each of the foregoing being referred to as a
"Transaction"), each share of Series A Preferred Stock then outstanding shall
thereafter be convertible into, in lieu of the Common Stock issuable upon such
conversion prior to consummation of such Transaction, the kind and amount of
shares of stock and other securities and property receivable (including cash)
upon the consummation of such Transaction by a holder of that number of shares
of Common Stock into which one share of Series A Preferred Stock was convertible
immediately prior to such Transaction provided that if in connection with the
Transaction a tender or exchange offer shall have been made and there shall have
been acquired pursuant thereto more than 50% of the outstanding shares of Common
Stock, each share of Series A Preferred Stock then outstanding shall thereafter
be convertible into the kind and amount of shares of stock and other securities
and property (including cash) receivable by a holder of Series A Preferred Stock
had the holder thereof (i) immediately prior to such tender or exchange offer
converted that portion of the share of Series A Preferred Stock equal to the
percentage of shares of the then outstanding Common Stock so purchased in the
tender or exchange offer and accepted such offer and sold therein all of such
shares of Common Stock obtained upon such conversion and (ii) converted the
remaining portion of the share of Series A Preferred Stock into shares of Common
Stock immediately prior to consummation of such Transaction. In any such case,
if necessary, appropriate adjustment (as determined by the Board of Directors)
shall be made in the application of the provisions set forth in this Section 8
with respect to rights and interests thereafter of the holders of shares of
Series A Preferred Stock to the end that the provisions set forth herein for the
protection of the conversion rights of the Series A Preferred Stock shall
thereafter be applicable, as nearly as reasonably may be, to any such other
shares of stock and other securities and property (other than cash) deliverable
upon conversion of the shares of
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Series A Preferred Stock remaining outstanding (with such adjustments in the
conversion price and number of shares issuable upon conversion and such other
adjustments in the provisions hereof as the Board of Directors shall determine
to be appropriate). In case securities or property (including cash) other than
Common Stock shall be issuable or deliverable upon conversion as aforesaid, then
all references in this Section 8 shall be deemed to apply, so far as appropriate
and as nearly as may be, to such other securities or property.
Notwithstanding anything contained herein to the contrary, the
Corporation will not effect any Transaction unless, prior to the consummation
thereof, the Surviving Person (if not the Company) thereof shall assume, by
written instrument delivered to each holder of shares of Series A Preferred
Stock, the obligation to deliver to such holder such cash, or other securities
to which, in accordance with the foregoing provisions, such holder is entitled.
i. In case at any time or from time to time the Corporation shall
pay any dividend or make any other distribution to the holders of its Common
Stock, or shall offer for subscription pro rata to the holders of its Common
Stock any additional shares of stock of any class or any other right, or there
shall be any capital reorganization or reclassification of the Common Stock of
the Corporation or merger of the Corporation with or into another corporation
(other than the Merger), or any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an entirety, or
there shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Corporation, then, in any one or more of said cases the Corporation shall
give at least twenty days prior written notice (the time of mailing of such
notice shall be deemed to be the time of giving thereof) to the registered
holders of the Series A Preferred Stock at the addresses of each as shown on the
books of the Corporation maintained by the Transfer Agent thereof as of the date
on which (i) the books of the Corporation shall close or a record shall be taken
for such stock dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, merger, sale or conveyance, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of the Common Stock of
record shall participate in said dividend, distribution or subscription rights
or shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, merger, sale or
conveyance or participate in such dissolution, liquidation or winding up, as the
case may be. Failure to give such notice shall not invalidate any action so
taken.
j. Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Series A Preferred Stock, the
Corporation will take all corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue shares of such Common Stock at such adjusted Conversion Price.
k. The Corporation at any time may increase the Conversion Ratio,
temporarily or otherwise, by any amount but in no event shall the Conversion
Price be less
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than the par value of the Common Stock as a result of increase. Whenever the
Conversion Ratio is increased pursuant to this paragraph, the Corporation shall
mail to the holders of shares of Series A Preferred Stock a notice of the
increase. The Corporation shall mail the notice at least 15 days before the date
the increased Conversion Ratio takes effect. The notice shall state the
Conversion Ratio and the period in which it will be in effect. An increase in
the Conversion Ratio pursuant to this paragraph shall not change or affect the
Conversion Ratio otherwise in effect for purposes of paragraphs (1), (2) and (3)
of Section 8(g).
Section 9. Reports as to Adjustments. Upon any adjustment of the
Conversion Ratio then in effect and any increase or decrease in the number of
shares of Common Stock issuable upon the operation of the conversion set forth
in Section 8 hereof, then, and in each such case, the Corporation shall promptly
deliver to the transfer agent of the Series A Preferred Stock and Common Stock,
if any, a certificate signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation setting forth in reasonable detail the event requiring the
adjustment and the method by which such adjustment was calculated and specifying
the Conversion Ratio then in effect following such adjustment and the increased
or decreased number of shares issuable upon the conversion set forth in Section
8 hereof. The Corporation shall also promptly after the making of such
adjustment give written notice to the registered holders of the Series A
Preferred Stock at the address of each holder as shown on the books of the
Corporation maintained by the Transfer Agent thereof, which notice shall state
the Conversion Ratio then in effect, as adjusted, and the increased or decreased
number of shares issuable upon the exercise of the right of conversion granted
by Section 8 hereof, and shall set forth in reasonable detail the method of
calculation of each and a brief statement of the facts requiring such
adjustment. Where appropriate, such notice to holders of the Series A Preferred
Stock may be given in advance and included as part of the notice required under
the provisions of Section 8(i) hereof.
Section 10. Certain Covenants. Any registered holder of Series A
Preferred Stock may proceed to protect and enforce its rights and the rights of
such holders by any available remedy by proceeding at law or in equity to
protect and enforce any such rights, whether for the specific enforcement of any
provision in this Article FOURTH, or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 11. Definitions. For the purposes of this Article FOURTH, the
following terms shall have the meanings indicated:
"Adjustment Period" shall mean a period of any consecutive twenty
Trading Days selected by the Corporation commencing no earlier than thirty
Trading Days preceding the date as of which the Fair Market Value of a security
is to be determined.
"Affiliate" of the Corporation means any other Person directly or
indirectly controlling or controlled by or under the direct or indirect common
control with such specified Person, provided, however, that Trefoil, SCA, the
Corporation and any wholly-owned Subsidiaries of the Corporation shall not be
deemed an Affiliate of the Corporation or its
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Subsidiaries for purposes hereof. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or by agreement or otherwise.
"Approved Securities" shall mean securities the issuance of which
was approved by the requisite vote of the holders of Series A Preferred Stock
pursuant hereto.
"Business Day" shall mean any day other than Saturday, Sunday or a
day on which banking institutions in the State of California are authorized or
obligated by law or executive order to close.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Corporation, as amended from time to time.
"Current Market Price," when used with reference to shares of
Common Stock or other securities on any date, shall mean the closing price per
share of Common Stock or such other securities on such date and, when used with
reference to shares of Common Stock or other securities for any period shall
mean the average of the daily closing prices per share of Common Stock or such
other securities for such period. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading. If the Common Stock is not
listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System or such other
system then in use, or, if on any such date the Common Stock or such other
securities are not quoted by any such organization, the average of the closing
bid and asked prices furnished by a professional market maker making a market in
the Common Stock or such other securities selected by the Board of Directors of
the Corporation. If the Common Stock or such other securities are not publicly
held or so listed or publicly traded, "Current Market Price" shall mean the Fair
Market Value per share of Common Stock or of such other securities as determined
in good faith by the Board of Directors of the Corporation.
"DGCL" shall mean the Delaware General Corporation Law, as
amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder, all as the same shall be in
effect at the time. Reference to a
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particular section of the Exchange Act shall include reference to the comparable
section, if any, of any such similar Federal statute.
"Fair Market Value" shall mean, as to shares of Common Stock or
any other class of capital stock or securities of the Corporation or any other
issue which are publicly traded, the average of the Current Market Prices of
such shares or securities for each day of the Adjustment Period. The "Fair
Market Value" of any security which is not publicly traded or of any other
property or services shall mean the fair value thereof as determined in good
faith by the Board of Directors of the Corporation or such committee.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession.
"Interest Rate Protection Arrangement" shall mean any interest
rate swap, cap or collar arrangement or any other derivative product customarily
offered by banks to their customers in order to reduce the exposure of such
customers to interest rate fluctuations.
"Issue Date" shall mean the first date on which shares of Series A
Preferred Stock are issued.
"Liquidation Preference" with respect to a share of Series A
Preferred Stock shall mean the Initial Purchase Price, plus an amount equal to
all accrued but unpaid dividends.
"Malrite" means Malrite Communications Group, Inc., an Ohio
corporation.
"Merger" means the merger of Malrite into the Corporation and the
subsequent transfer by this Corporation to Shamrock Broadcasting, Inc., a
Delaware corporation, of all or part of the assets and liabilities of Malrite so
acquired.
"Notes" shall mean the 7-1/2% Convertible Senior Notes due 2003 of
the Corporation, issued pursuant to the Securities Purchase Agreement, and any
notes issued in respect of interest payable thereon.
"Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such entity.
"SCA" means Shamrock Capital Advisors, Inc., a Delaware
corporation.
"Securities Purchase Agreement" shall mean the Securities Purchase
Agreement, dated as of July 23, 1993, between the Corporation and Trefoil, as
amended, a copy of which is maintained at the Corporation's principal executive
offices.
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"Series A Director" shall mean a director of the Corporation
appointed or elected to the Board of Directors of the corporation pursuant to
Section 3(c) hereof by the holders of the Series A Preferred Stock or by a vote
of the Series A Directors pursuant to Section 3(d) hereof.
"Services Agreement" shall mean the letter agreement, dated as of
the Issue Date, between the Corporation and SCA, a copy of which is maintained
at the Corporation's principal executive offices.
"Subsidiary" of any Person means any corporation or other entity
of which a majority of the voting power of the voting equity securities or
equity interest is owned, directly or indirectly, by such Person.
"Surviving Person" shall mean the continuing or surviving Person
of a merger or other business combination, the Person receiving a transfer of
all or a substantial part of the properties and assets of the Corporation, or
the Person merging into the Corporation in a merger or other business
combination in which the Corporation is the continuing or surviving Person, but
in connection with which the Series A Preferred Stock or Common Stock of the
Corporation is exchanged or converted into the securities of any other Person or
cash or any other property; provided, however, if such Surviving Person is a
direct or indirect Subsidiary, such Surviving Person and each direct or indirect
parent entity shall be a Surviving Person.
"Trading Day" means a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a Business Day.
"Trefoil" means Trefoil Capital Investors, L.P., a Delaware
limited partnership.
"Warrants" means the Warrants issued pursuant to the Warrant
Agreement, dated as of February 15, 1989, between Malrite Communications Group,
Inc. and Shawmut Bank, N.A., as Warrant Agent, to be assumed by the Corporation
in the Merger.
Section 12. Preemptive Rights.
The Series A Preferred Stock is not entitled to any preemptive or
subscription rights in respect of any securities of the Corporation.
B. PREFERRED STOCK.
Except as set forth above with respect to Series A Preferred Stock,
shares of Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to fix by resolution or resolutions
the voting powers, designations, preferences and relative participating,
optional or other rights, if any, and the qualifications,
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limitations or restrictions thereof, of any wholly unissued series of Preferred
Stock, to fix the number of shares constituting such series and to increase or
decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding)."
FIFTH: The business and affairs of the corporation shall be
managed by the board of directors, and the directors need not be elected by
ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the board of directors is
expressly authorized to make, amend and repeal the by-laws.
SEVENTH: The corporation reserves the right to amend and repeal
any provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware. All rights herein conferred
are granted subject to this reservation.
EIGHTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
this corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation
of Trefoil Communications, Inc. has been signed and attested by its duly
authorized officers, this 20th day of December, 1993.
TREFOIL COMMUNICATIONS, INC.
By: /s/ ROBERT G. MOSKOWITZ
---------------------------------
Robert G. Moskowitz
Executive Vice President
Attest:
/s/ GEORGE J. BUCHLER
- --------------------------------
George J. Buchler
Assistant Secretary
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STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "TREFOIL COMMUNICATIONS, INC.", CHANGING ITS NAME FROM "TREFOIL
COMMUNICATIONS, INC." TO "CHANCELLOR MEDIA/TREFOIL COMMUNICATIONS, INC.", FILED
IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 1997, AT 4:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9386052
DATE: 11-04-98
27
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TREFOIL COMMUNICATIONS, INC.
Pursuant to Section 242 of the General Incorporation Law of the State
of Delaware, Trefoil Communications, Inc. ("Corporation"), a Delaware
corporation, hereby certifies that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the present Article FIRST and inserting in
lieu thereof a new Article FIRST, as follows:
FIRST: The name of the Corporation (hereinafter sometimes referred
to as the "Corporation") is:
"CHANCELLOR MEDIA/TREFOIL COMMUNICATIONS, INC."
2. The Board of Directors and Shareholders of the Corporation, by
written consent, adopted, approved and ratified the foregoing
Amendment.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of
Amendment to be signed and executed in its corporate name by Omar Choucair, its
Vice President, on this 17 day of October, 1997.
TREFOIL COMMUNICATIONS INC.,
a Delaware Corporation
By: /s/ OMAR CHOUCAIR
------------------------
Name: Omar Choucair
Title: Vice President